In Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 the High Court of Australia confirmed that by posting content relating to news stories about Mr Voller on their respective public Facebook pages, the media companies were liable for the publication of allegedly defamatory “comments” that were posted by third-party Facebook users in response to the content.

Mr Voller brought proceedings against the media companies alleging that they were liable for defamation as the publishers of those comments.

The High Court by majority found that the companies were the publishers of the third-party Facebook user comments.

A majority of the Court held that the liability of a person as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, “participated” in the communication of the defamatory matter to a third person.

The majority rejected the media companies’ argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it.

They concluded that each media company, by the creation of a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users.

The High Court did not consider whether the media companies have any defence.

Comments
It is clear that businesses using social media channels like Facebook, Twitter and YouTube have a responsibility to ensure content on their pages is accurate, irrespective of who put it there.

If your business has a Facebook page which promotes or publicises your products or services, you are responsible for what your employees, customers and visitors say on it as well as your own content.

Comments on a business’s Facebook page are regarded by law as advertisements which are subject to the laws relating to advertising, including the prohibition on misleading or deceptive conduct.

What you need to do
1. Develop policies and procedures (either stand-alone or incorporated into other policies and procedures) regarding the use and monitoring of social media and compliance with all applicable laws. The policies and procedures should address risks from online postings, edits, replies, and retention.
2. Implement an employee training program that incorporates your policies and procedures for official, work-related use of social media.
3. Monitor information posted to social media sites administered by you.
4. Administrators should consider whether they should turn off comments or not allowing comments to be published until they are reviewed.

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David Jacobson

Author: David Jacobson
Principal, Bright Corporate Law
Email: djacobson@brightlaw.com.au
About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.

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