Doctor Digital, is it true I can be sued if someone makes a defamatory comment on my Facebook page?
Doctor Digital Says
New defamation rulings post a high profile defamation case have changed the game for any social or public channel that has comments enabled. So while the case was about Facebook, it is also applicable to Instagram, Twitter, Reddit and your website or blog if you have comments enabled. While Doctor Digital is not a lawyer, (they are a doctor of all things digital) i'll do my best to break the ruling down for you in lay terms, so you are alert, not alarmed and informed as to what you can do to ensure you stay on the right side of defamation law.
Here is the background to where we are now: an inmate of Don Dale Detention Centre appeared in an episode of Four Corners. Following that episode, three media outlets published stories on their Facebook pages about his situation. Those stories had open comments, and a number of derogatory and he believed defamatory comments were made about him personally underneath links to the stories/posts. Rather than suing the authors who wrote the comments, he sued the media outlets that had published them, claiming that they were responsible for the comments on their Facebook page and had effectively 'published' them.
So to be clear, this was a case about who was the responsible publisher, not whether the comments in and of themselves were defamatory. The court ruled in his favour, there was an appeal, it went to the high court, the high court ruled in his favour, and the media organisations were deemed to be responsible for publishing the comments and ordered to pay court costs. This has paved the way for the defamation case to now be run to determine whether or not the comments met the definition for being defamatory - ie they have caused lasting and serious harm to his reputation.
As mentioned before, this initial case was a liability ruling rather than a defamation ruling. Defamation cases are notoriously hard to land, as evidence has to be provided that the person who is suing has had lasting and serious harm done to their reputation. Context will play into this, as the context of comments and discussion on social media is based on people expressing their opinions.
Comments by anonymous trolls or random people don't often get a lot of credibility, so the testing of the defamation laws is going to be based on whether the comments meet the standard for lasting reputational harm. This is designed to stop nuisance or trivial cases under what's known as the Serious Harm Threshold. Many comments might be offensive, but won't meet that threshold, offering some protection for admins and page owners.
The summary of this ruling is that anyone who has a publically accessible channel with live comments can now be held accountable for any comments that are made on their pages that might defame someone. It is a significant ruling given that the algorithms that drive social media preference engagement which is often about encouraging comments as a key part of consumer engagement. Of course these are largely innocuous and would hopefully be happy customers singing the praises of your products and services.
But then there are the other ones that we've all seen and heard that can be trolling, frustration, lashing out or any combination of just plain nasty. The court case has bypassed the individual as culpable, which is understandable as many trolls use pseudonyms and operate under fake accounts, so it is easier and more visible to go for the entities which can be held accountable in a court of law.
As a business, or a community group, or influencer, or pretty much anyone who operates a public channel with comments, you need to weigh up your risk. You may have a really great community of people and this isn't an issue for you right now, but it is important to know your liabilities and make an informed decision about how to manage your community.
If you are a small business that perhaps isn't always keeping a close eye on your comments, you may want to think about how you will manage interactions in the future. There have already been some high-profile pages, including the Tasmanian Premier Peter Gutwein who have made public statements on their Facebook pages that comments will be turned off because of this ruling.
And don't forget it's not just businesses, it is any page, so could be a community group, or a school P&C, or a not-for-profit where comments are made that are deemed to be defamatory. This is a great reminder to think about social media from a community management perspective, how you do it, what your risk appetite is, and how this is going to impact your business. Don't forget you can reach out to a Digital Coach for a discussion and clarity, along with help to update your social media and community management strategy.