Who is liable for social media comments?
In the Voller decision, Fairfax Media Publications Pty Ltd v Dylan Voller, the High Court’s decision confirmed that publishers are liable for third-party comments made on their social media content.
The case has centred around potentially defamatory material posted on Fairfax’s Facebook pages regarding Dylan Voller, whose mistreatment in the Northern Territory’s Don Dale youth detention centre led to an Australian Royal Commission.
The majority ruling found that merely facilitating and encouraging comments amounted to “participation” in the communication of defamatory material, even if the original poster was not aware of the content of later comments posted to the page.
The Guardian Australia reported on the decision stating it is expected to have ramifications for all Australian media companies, making them likely to ban comments on news posts, and potentially discouraging the posting of stories and articles to social media.
The ruling also has implications for marketers and anyone working in social media marketing and influencer marketing. In fact, it has potential implications for anyone participating in social media.
The pertinent issue for brands with regard to their social media activity is whether they are considered publishers and hence responsible for all comments? Do brands need to moderate all social media comments from now on? Or turn off comments entirely? Likewise are influencers also in the position of potentially being liable for comments on their content?
Patrick Fair, one of Australia’s leading technology lawyers and a past president of the Law Society of New South Wales, provided his view at a recent ANAA webinar session.
In his opinion, depending on the situation and the risk level, in order to be completely safe from liability with regard to social media comments made by third parties, he has suggested that brands consider:
Ceasing to host public comments without prior vetting
Manage risk by thorough prepublication supervision
Restrict user feedback to ‘likes’ and/or other ratings or selected responses
Only hosting public comments on a platform without ‘content owner controls’ (not currently the case with any social platforms)
We will no doubt hear more about this issue in the future, however in the meantime the importance of moderating social media comments on posts has escalated, dramatically.