If you run a social media page or group, or any community platform where people can comment, you are now responsible, under defamation law, for everything that anyone posts. This is regardless of whether you or your business agrees with the comment, or even if you are unaware that the comment has been made.

The landmark case for social media defamation

In a recent High Court of Australia ruling, the finding of the case between Fairfax Media Publications & and Voller, determined that ‘publishers’, in this case the media company, was liable for the defamatory comments published by third party Facebook users.

But how does this ruling impact Facebook groups and page owners and managers?

What the ruling means is that all people and organisations who run or manage anything online where people can comment in any way, could be found liable for defamation because you are considered a ‘publisher’. That is, you (or your business) are responsible for comments made by followers of pages or members of groups, or contribute in any way to the pages and platforms that you manage.

In this article we explore what constitutes defamation on social media, what this applies to, how you can prevent defamatory content from being published to your page, and if there are any legal defences against a defamation claim.

What constitutes defamation on Social Media?

In Australia, each State and Territory has its own defamation law. Generally speaking, though, defamation is when one party publishes something about another party that is untrue or harmful to their reputation. The word ‘publish’ is broad in that it could mean capturing something on video, via voice recording or in writing. Equally, what is considered harmful is discretionary.

In instances where there is an allegation of defamation, there is a test that is used to determine if an ‘ordinary person’ would consider the material as defamatory. The test is done by considering if someone reading or listening to the material would find that to be very unflattering or offensive.

Does the ruling only apply to Facebook groups?

No, this ruling is not limited to Facebook pages or groups. This is applicable to everything online. It applies to other social media platforms such as Instagram, LinkedIn and Twitter. It applies to blogs, private chats, private communities - anywhere people have the ability to publish content of any kind. 

This even applies to your personal private pages. For example, if you were to put a post on your private page and someone wrote ‘[insert name] is a lying cheat’ and you left the comment on the post, then the person the comment was about could potentially sue you for defamation on social media. This could happen even though it was someone else who wrote the comment, and your page is for friends only and isn’t public. In fact the person it was directed at may not even be connected to you on social media.

How can I prevent defamatory content being posted?

Because you could be found liable for a defamatory comment made by a third party, it’s important to monitor the content posted to your social media pages, groups and other online platforms where others can comment or contribute in any way.

There are several ways you can monitor, filter, approve and archive your pages’ content. 

I, personally, have archived two of my groups online because they weren’t being used often. After this ruling, the risk was that someone could have commented on the page and because I haven’t been using the pages, I could have left a defamatory comment on there, simply because I didn’t see it. This is one way to narrow down the content that you need to monitor and regulate. If you are the owner of a social media page that is not being regularly used, you may need to think about archiving it or having a Marie Kondo tidy up.

Alternatively, you may wish to make your group a more private or intimate group, which is easier to monitor. This is especially true for large groups or pages with a large following. You may also want to consider monetising your group and moving to a paid subscription model. The subscription could then offset the costs of engaging someone to monitor the page or group.

If you are the owner of a blog page, and you do not have a filtering system set up, you are leaving your page open to anyone commenting whatever they like on the page, which again could include defamatory content. However, blog pages often have the option of a filtering system, where the owner of the blog must approve or trash a comment before it is posted to the page. 

On Facebook, there is a setting that allows you to block particular words on your page. For example, there is a group in my local area that was receiving a lot of hate comments about anti-vaxxers. They decided to block the word COVID and a few other related terms, so now their page is free from comments containing the terms that they have blocked. You could choose to block any terms you like, which is a great preventative measure to have in place.

In addition to blocking specific words or terms, Facebook also provides the option to disable comments or to set comments for admin approval. This may be the only way you can truly filter what is posted to your page. However, this then can become quite time-consuming because you will need to monitor more regularly. And because Facebook groups are all about engagement, if people cannot see their posts or comments appearing fairly promptly on the page, then engagement may drop off and that could affect you too. 

If you manage a group or community, having clear group rules could aid in minimising risk. It is wise to reshare the rules every three months or so to remind the members of the group about how they should conduct themselves when participating. By having these rules in place and resharing could be supporting evidence should you ever find yourself in a position where you need it. 

In conjunction with having group rules, put a policy in place so that if someone were to make a comment that could be construed as defamatory, you have the right to remove or block them from your page to stop that happening again. Or, of course, you could have a word to them privately, warning them that their behaviour goes against your rules of conduct

Are there any legal defences against a defamation claim?

Yes there are legal defences to a defamation claim. Some of the defences include that the material published was the truth, that it was already out in the public and is therefore not new material, or that it was an honest opinion based on proper material. It is not recommended, however, to try and defend a defamation claim without seeking professional legal advice first. And, why would you leave yourself open to a claim if it can be avoided by careful regulation of your pages and groups in the first place?

If you have a Facebook Group or Social Media page, you could face serious legal issues and social media defamation claims made against you if your group members post content to your page that qualifies as defamation. For that reason, it is wise to implement preventative measures as soon as possible to minimise your risk of finding yourself in a position where you’re sued for defamation on social media, or elsewhere.

Even if it never gets to the point where you are sued, you do not want the worry and stress that comes with receiving a ‘cease and desist’ letter in your inbox. Avoid the nightmare entirely by ensuring that you have protected yourself as much as possible. 

If you have friends and contacts who manage groups or pages on social media or elsewhere online, share this article with them, so they can be aware of this new ruling and take steps to minimise their risk too.

We have created a Facebook Group Rules Template for you with these issues in mind. Alternatively, you may wish to speak with Emma about moving to monetise your Facebook group or community.