The rules have changed – host a social media page at your peril

By |2022-06-29T11:19:27+10:0021-9-21|

Like many, I’m a unit owner and, similarly like many, my body corporate committee has set up a Facebook page. There’s no doubting the intent of that – it’s a group to allow owners to discuss matters which relate to our scheme. Good idea? Think again…

In a very recent decision [1], the High Court decided that a party who facilitated, encouraged and assisted the posting of comments by others via Facebook were publishers for the purpose of any proceedings or complaints for defamation, of those comments.

This is significant. It has broad reaching consequences. Before discussing that, let’s give this article some context.

In the High Court decision of Voller, the Sydney Morning Herald, the Australian and Sky News asked the Court to decide whether they were a publisher of comments posted on their Facebook pages by Joe Public (my description), about which Mr Voller complained and said were defamatory of him.

Each of those media outlets published an article regarding juvenile detention in the Northern Territory and a gentleman, Mr Dylan Voller. There was no suggestion any of those media outlets themselves made any defamatory comments – they merely provided the forum for Joe Public to do so.

Person Holding Iphone Showing Social Networks Folder

The High Court said that those media outlets were publishers [2].

It is trite law that anyone who makes a comment, in whatever forum, is the publisher of that comment and liable as such if it is defamatory. Other decisions have dealt with whether or not the platform (i.e. Google [3],) is also the publisher. Furthermore, historically the Courts have been prepared to extend the umbrella of who is a publisher to include third parties (i.e. clubs or other venue operators) who allow or permitted defamatory comments to remain on notice boards, walls, etc after they became aware of their existence.

By this decision, a publisher has been extended to anyone who hosts a page on Facebook. But why stop there? Why is that of significance?

Firstly, the High Court decided that knowledge of the existence of the comments was not relevant.

Secondly, in any action for defamation the first step is to establish that information was communicated to a third party by another (the publisher). This step is known as publication. The publisher of a defamatory comment is liable at law. This includes paying damages for any harm caused to a plaintiff by the defamatory comment. Injunctive relief is available in limited circumstances.

What this means is that anyone i.e. body corporate manager, body corporate, committee or individual who hosts a social media or similar page which facilitates, encourages and assists the posting of any comment could be liable for any defamatory comments which are posted on that page by Joe Public.

Thirdly, quite arguably, this might equally apply to any electronic platform by which meetings are held and allows or promotes the making of comments. I know from experience that the comment function on Zoom/Teams is often used during meetings and quite arguably, the person who hosts that platform will be the publisher of any comments and arguably liable as such.

Turning off the comments may be one solution, depending on the social media platform. Another may be to have filters or other mechanisms in place to filter or restrict comments (frankly that level of IT skill is beyond me). You could go old-school and simply have someone moderate the comments, although that in itself is a time consuming and expensive solution.

Lastly, and importantly for bodies corporate and their committees, the limited immunity afforded by the Body Corporate Community and Management Act (BMMCA) when a defamatory matter is included in required material will not apply in these circumstances. That is something entirely different.

If you host any form of social media page or electronic platform which allows Joe Public to comment, STOP IT NOW otherwise a defamation action could be on its way.

Troy leads our Commercial Litigation and Dispute Resolution team and can be contacted on (07) 3226 3933 or trh@nicholsons.com.au.

Think Litigation. Think Nicholsons

__________________________________________________________________________________

  1. Fairfax Media Publications Pty Ltd & Ors v Voller [2021] HCA 27
  2. The question of whether or not the comments were, in fact, defamatory remains to be determined and has been sent back to the Supreme Court for a decision on its merits.
  3. Google Inc v Duffy (2017) 129 SASR 304
Sign up to receive our latest articles straight to your inbox button

Related articles

Leave A Comment

Go to Top