Facebook page owners could be liable for third-party defamation, Simpson Grierson warns

The firm looked into sample cases from Australia and New Zealand

Facebook page owners could be liable for third-party defamation, Simpson Grierson warns

Facebook page owners could be liable for third-party defamatory comments on their pages in some cases, Simpson Grierson warned in a recent blog post.

Partner Jania Baigent and special counsel Anita Birkinshaw examined a recent ruling by the High Court in Australia on Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, in which the court decided that the media owners of Facebook pages could be regarded as the publishers of user comments – whether or not these owners were aware of the comments or intended to present such comments.

The case had involved the suing of Fairfax Media, Nationwide News and Australian News Channel by former Northern Territory youth detainee Dylan Voller for defamatory comments posted on their Facebook pages. Voller posited that the media entities should be held liable as publishers of the comments, since they ran the pages.

While comments could be deleted or hidden by the page operators, they could not be completely disabled.

A majority of the court pointed to what Baigent and Birkinshaw said was the general approach in defamation law – that “any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher.” Thus, because the entities enabled, encouraged and assisted in the posting of comments on their Facebook pages, they were in fact publishing the comments.

Nonetheless, the court did not rule on whether Fairfax Media, Nationwide News and Australian News Channel were in fact liable for the defamation against Voller.

Baigent and Birkinshaw then brought up a case which clarifies New Zealand’s position on the matter. As per Wishart v Murray [2014] NZCA 461, [2014] 3 NZLR 722, the Court of Appeal maintained that while the owner of a Facebook page could be held responsible for comments made by others in response to a post, the owner must have first known there was defamatory content, and then must have failed to delete the offending comment/s within a reasonable amount of time. 

Otherwise, the operator of that page will not be considered the publisher of any defamatory content.

Nonetheless, Baigent and Birkinshaw point out that the outcome of the Australian case serves to remind New Zealand organisations to keep an eye on user responses to their social media posts.

“Continue to monitor comments on your social media accounts,” they write. “If a complaint is made about defamatory content, escalate, investigate, and act promptly.”

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