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Legal Issues
Publication or innocent dissemination:
Liability for comments on the internet
Legal eagle Wal Abramowicz says the recent court ruling means you are responsible for all comments made on your digital platforms, and if they are defamatory you can cop serious punishment.
Although it has now been around for several decades and pervades almost every aspect of our lives, in some ways the internet is still a legal frontier. Although many areas of law have decisions going back centuries, often the Court has never before been asked to consider how existing laws and prior decisions apply to online activities.
The latest such development is to the law of defamation, specifically: are you responsible for things other people post on your website?
In the recent case of Fairfax Media Publications & Ors v Voller, the NSW Supreme Court’s Court of Appeal, the state’s highest court, ruled that the answer to that question is yes.
The question arose in the context of the public Facebook pages of business. Members of the public made posts in the Comments sections of Facebook pages run by each of the three media companies involved in the case. Those comments were defamatory towards Voller who sued the companies as the ones who had published the comments.
“Are you responsible for things other people post on your website? In the recent case of Fairfax Media Publications & Ors v Voller, the NSW Supreme Court’s Court of Appeal, the state’s highest court, ruled that the answer to that question is yes.”
The companies claimed firstly that they were not the publishers of the comments, and secondly that if they were, then they had innocently disseminated the comments and were therefore not liable. The Court of Appeal considered each of these positions.
In relation to whether or not the companies had published the defamatory comments themselves, the Court found that “The [companies] maintained Facebook pages and encouraged and facilitated the making of comments by third parties
which when posted on the page were made available to Facebook users generally and were therefore publishers of the comments.” In other words, if it is your Facebook
page then you are the one displaying the comments to the world, even if you did not write them.
The companies’ secondary position relied
on the defence of innocent dissemination. That is a defence which protects a person
who spreads a defamatory remark, but does
so without any control over the content or even an expectation that they would know it was defamatory. As an example, a newspaper might publish a defamatory article, and a newsagent then sells the newspaper. Both have been involved in the process of the defamatory article reaching the public, but the newspaper is responsible for the content of its newspaper whereas the newsagent is innocently disseminating the paper without being aware of its content or having any control over it.
The companies argued that they were similar to a supplier of a newspaper in that they provided the medium on which the defamatory comments were made but were not the ones making them. However, this argument was unsuccessful due
to the control the companies had over
their Facebook pages. The companies could not rely on the defence of innocent dissemination as “They facilitated the posting of comments on articles published in their newspapers and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory.”
The decision of the Court of Appeal in this case has far reaching implications
for businesses. Comments will need to be carefully and constantly monitored and moderated, which is an additional expense, while the safest course would be to disable comments entirely, which would come at a cost to customer engagement. In any case, this decision demonstrates that in some ways the internet is still an unexplored wilderness with pitfalls for the unwary. 21
Wal Abramowicz, managing director, Fox & Staniland, Gordon, NSW.
Email Wal at: wal@ foxstaniland.com.au
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