Can you be liable for third-party comments made on your Facebook page?

Risk Matters - Summer 2022

Picture of Roselina Kruize

Roselina Kruize

Senior Associate | Dispute Resolution + Litigation, Jackson McDonald

Roselina Kruize is a Senior Associate at Jackson McDonald, practicing in complex litigation and dispute resolution. She has experience dealing with a wide range of commercial litigation matters representing clients in all West Australian and Federal Courts, both in first instance and in the appellate jurisdiction, and in the State Administrative Tribunal. Roselina also has a grounding in commercial law, having practiced it in conjunction with litigation for the first 7 years of her career, which assists with understanding a client’s business and reaching the best commercial outcome for the client.

Recent Court decisions have highlighted the liability your local government faces for defamatory comments made on social media posts by third parties. This includes your local government social media pages and elected member pages.

A defamatory statement is any statement published to a third party which harms a person’s reputation. A person who feels they have been defamed may apply to the Court to seek compensation for the harm suffered. Compensation is not limited to economic loss and a person does not have to suffer economic loss to make a claim.

There are some defences available such as the statement being substantially true, it was an honest opinion rather than a statement of fact, or it was made in the interest of the public.

A couple of recent examples of defamation in the political arena are:

(1) The ‘Christian Porter’ case:

Mr Porter sued the ABC for defamatory publications made. These publications carried an imputation that he sexually assaulted the young woman referred to in the ABC article (see Porter v Australian Broadcasting Corporation [2021] FCA 863). This matter was settled out of Court.

(2) Hanson-Young v Leyonhjelm (No 4) [2019] FAC 1981:

Senator Sarah Hanson-Young successfully sued Liberal Democrat Senator David Leyonhjelm over defamatory comments he made in a Senate inquiry and subsequent media interviews in 2018. The comments made by Senator Leyonhjelm suggested Senator Hanson-Young was a misandrist and a hypocrite. Senator Leyonhjelm sought leave to appeal the decision in the High Court. On 17 June 2021, the High Court denied leave crystalising the decision made in favour of Senator Hanson-Young. Senator Hanson-Young was awarded $120,000 damages and costs.

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The Voller decision

On 8 September 2021, the High Court handed down its decision in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (the Voller decision) which dealt with the issue of whether Facebook users are responsible for defamatory comments made by third-parties on Facebook pages created by them. 

The media outlets argued that they had a valid defence, being that there is no liability to the “owner” of the Facebook page because:

  1. there was no intention on their part to defame;
  2. they did not make the defamatory comments;
  3. they did not participate in their publication; and
  4. they were not in any relevant sense instrumental in their publication.

Although the High Court accepted that the media entities played no active role in publishing or adopting the comments, it determined that the media entities facilitated the making of comments because they invited and encouraged comments from Facebook users and provided the vehicle for publication to those who might want to respond.

The judgment confirmed that media entities will be treated as the publisher of all third-party comments made in response to any articles the media entity publishes on Facebook. 

How does the Voller decision affect me?

Defamation claims are becoming more commonplace, especially with the increased use, and variety, of available internet intermediaries such as Facebook, Instagram, Twitter and TikTok in the business arena. 

The Voller decision has broad-reaching implications for the use of these internet intermediaries. By allowing comments to be written on a person, corporation or government’s page, they will be seen as inviting and encouraging comments and responses. The practical effect which follows is that every user of social media can be liable for defamatory statements made by members of the public on their posts. 

Practical tips on managing Facebook and other internet intermediaries:

Be mindful of common triggers which may lead to defamatory statements being made on internet intermediaries either by yourself or a member of the public, such as:

  • Advocating for your cause using persuasive language targeted against particular individuals.
  • Allowing ratepayers to comment on your feed on social media platforms without review – this could lead to inflammatory comments, for example, allegations of conspiracy and corruption.
  • Making or encouraging comments which are false and derogatory in nature, such as, alleging a person is incompetent or incapable of performing their job, that they or their work is an embarrassment or that they have acted unprofessionally.
Other practical takeaways:
  • Be careful of taking the bait in responding to ratepayer comments. Any comments you make may be defamatory. 
  • If you would like the public to comment on posts, make sure you constantly monitor your Facebook pages or other internet intermediaries. An appointed moderator is best.
  • If you see, or the moderator sees, a potentially defamatory comment on your post, or receive feedback from the public in relation to a potentially defamatory comment, remove it immediately.
  • If you don’t have time to review your posts and the public’s comments, or have an appointed moderator, disable the comments function.
  • If defamatory comments have been made, and you missed them in your review, consider your Liability Protection Insurance and claim periods and provide notice to your insurer as soon as possible after the claim has been made.
  • Any comments made by you with the knowledge of falsity or claims arising out of any intentional, deliberate, dishonest, fraudulent, criminal or malicious act of omission will not be protected by your Liability Protection Insurance – this means that you could potentially be personally liable for any successful defamation claims brought against you.
  • Consider whether your existing insurance covers defamatory comments made by a third-party. 

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