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Defamation Competition Dispute Resolution Litigation Slander Defamatory Australian law Sue Facebook

Liability for the publication of defamatory content on Facebook and other digital platforms is an emerging area of law. Words in a social media post, uploading images or even using emojis (which are becoming increasingly used in our communication) may amount to the publication of defamatory material.

It is important for businesses and individual employees who use digital platforms, to understand and appreciate the potential defamation issues involved.

Partner, Brett Bolton and past Senior Associate, Samantha Clementsdelivered a webinar to business leaders regarding safeguarding businesses against defamatory content on social media. This article summarises the key takeaways and frequently asked questions from the webinar.

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Key takeaways

To minimise your exposure to any liability for publication of defamatory content by users of the platforms you administer, you should:

at a minimum, have an efficient process for responding to complaints and immediately removing any defamatory material brought to your attention;
continuously monitor social media (weighing up the risk of increased compliance costs with the potential liability for defamation). Strategies include:

disable all public comments (or require comments to be reviewed by an administrator before they become publicly available);
allow comments, but remove unlawful comments periodically or in response to complaints;
hide all comments by applying a filter of certain words, and approve comments that are not defamatory; and

before posting anything online, make an initial assessment as to whether it is likely to attract controversial responses. If so, ensure comment controls are being used to vet comments before they are made publicly available.

Watch the recording

Update as of 21 May 2021

During the webinar, Brett and Samantha provided a brief update on the status of the national review of the Model Defamation Provisions in Australia. On 7 April 2021, the Standing Committee of Attorneys-General released a Discussion Paper for Stage 2 of the review. The Stage 2 Discussion Paper considers two key areas:

liability of internet intermediaries for the publication of third-party content; and
the impact of defamation laws on reporting alleged criminal conduct made to police and other bodies (and whether there is a need to extend the defence of absolute privilege to such reporting).

The Stage 2 Discussion Paper calls for submissions from the public, the closing date for which is Wednesday, 19 May 2021. Members of the public are encouraged to have their say as feedback will play a vital role in reforms to defamation law across Australia. Submissions on the Stage 2 Discussion Paper can be sent to [email protected].

Frequently asked questions

What is the difference between a primary and secondary publisher in the digital age and why does it matter?

One of the elements of defamation is that the material has been “published” (i.e. communicated by any means) to a third party. The next step is to determine whether that publisher was a primary publisher or a secondary publisher.

Primary – anyone who has prior knowledge or control over a publication’s content (e.g. users who post material on a digital platform or administrators of public Facebook pages).
Secondary – someone who is not the author of the material and does not have the ability to exercise control over the content of the matter before it is published (e.g. search engines and internet service providers who disseminate information).

The distinction is important. Secondary publishers of defamatory material may rely on the common law or statutory defence of innocent dissemination. This is where they prove they “neither knew, nor ought reasonably to have known, that the matter was defamatory and (their) lack of knowledge was not due to any negligence” (see section 32 of the Defamation Act 2005 (Qld)).

To rely on the defence of innocent dissemination you need to prove you acted promptly to remove the defamatory material.

Can Google be found liable of defamation as a secondary publisher?

The decision of Google Inc v Duffy [2017] SASCFC 130 was one of the first significant cases to consider whether Google (as an intermediary), could be liable as a publisher of the content of third parties.

The alleged defamatory material related to articles that were critical of Dr Duffy and had been published on a website called the “Ripoff Report”. Dr Duffy complained that when her name was typed into Google’s search bar, the search results would return hyperlinks to the defamatory publications (and “snippets” of the articles). Dr Duffy asked Google to remove the material, but it refused to do so.

The Court found that, once a reasonable time had passed after Google became aware that it was publishing defamatory publication, it could no longer rely on the defence of innocent defamation.

Do administrators of public Facebook pages have any liability in defamation for third-party comments?

In Voller v Nationwide News Pty Ltd [2019] NSWSC 766, an Australian Court, for the first time, had to consider whether administrators of public Facebook pages were liable (as a primary publisher) for allegedly defamatory comments posted by third parties on those Facebook pages.

The judge at first instance found that the defendants (i.e. the media outlets who were owners and administrators of the public Facebook pages in question), were “primary publishers” based on his analysis of the characteristics of public Facebook pages including:

that administrators of public Facebook pages can control what comments are posted by third parties on their posts by:

filtering comments via predetermined filters which rely on keywords; and/or
hiding all comments until they have been reviewed by an administrator;

the relevant articles initially posted on the Facebook pages related to an emotive issue. The media outlets should have foreseen that members of the public were likely to post comments which would ‘more probably than not’ include defamatory material. As a result, the comments should have been reviewed before they were published; and
the defendants subsequently appealed this decision and the matter will now be dealt with by the High Court of Australia.

Do administrators of private Facebook pages have any liability in defamation for third-party comments?

Publishers who have the capacity to remove or hide third party content from their platform but only after it has been posted have generally been held to be “secondary publishers”. This is the case with features of private Facebook pages where:

an administrator cannot block all comments on their page. Therefore, they are unable to exercise editorial control;
there is no function to “vet” comments before they are published; and
an administrator can only retrospectively remove individual comments and block users.

In this situation, it is important that you frequently monitor the page and take active steps to remove postings that might be considered defamatory.

Can an emoji be defamatory and what can you do?

Yes! In the decision of the District Court of NSW Burrows v Houda [2020], the Court was required to determine whether the ‘zipper-mouth’ face emoji had the capacity of defaming the plaintiff.

Referring to “Emojipedia”, the Court held that an emoji’s ability to convey a particular meaning is clear where emojis have their own specialised dictionary.

What can you do?

Do not use emojis, pictures or memes in communications where the meaning could be ambiguous.
Be careful what you or your employees are “commenting” or “liking” on social media.
Update your social media policies to include a policy around the use of emojis.

How does a business protect itself or respond to negative and vexatious posts or reviews?