Defamation: A business can be liable for defamatory comments on its Facebook page

A recent court decision held that a business can be liable for defamatory comments made by the public on its Facebook page.

Facts of the case

Voller v Nationwide News Pty Ltd [2019] NSWSC 766 concerned defamation claims brought against Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd in relation to comments posted by members of the public on Facebook pages maintained by the companies.

The comments were allegedly defamatory of Mr Voller.

The preliminary issue

The Court was required to consider, as a preliminary issue, whether the companies ‘published’ the comments for the purposes of the law of defamation. If they were considered ‘publishers’, they could be liable for the comments, even though they were made by third parties.

The Court found that the companies did ‘publish’ the comments, on the basis that they provided the opportunity for the comments to be posted on their Facebook page.

Justice Rothman held:

• they encouraged, for their own commercial purposes, the publication of comments
• the companies were a first or primary publisher, in relation to the general readership of the Facebook page they operated
• as a consequence of that classification, the defence of innocent dissemination would not arise.

Comments

This decision has significant implications for any business that maintains a social media presence on platforms such as Facebook, Instagram, Twitter or LinkedIn and allows third party comments.

Businesses should be vigilant and take active steps to maintain a high degree of control over posts made on social media and be careful not to allow defamatory statements to be published.

Given the wide-ranging implications of this decision, it may be the subject of an appeal.

If you would like more information about these issues, please do not hesitate to contact our litigation and dispute resolution team on +61 7 3231 2444.