28 June 2019

Earlier this week a landmark judgement was handed down that is likely to impact every business owner who manages a Facebook page. And if they aren’t worried – they should be.

On Monday Justice Stephen Rothman found that media companies can be held liable for comments published on their Facebook pages by third parties due to the commercial nature of their Facebook pages.

When making his ruling he noted that the purpose of the media organisation’s Facebook page was to ‘excite comments and interest from and by the public’. There were commercial benefits to the publishing companies’ in driving traffic back to their website because of the advertising revenue that they would ultimately benefit from.

Leading lawyer and privacy advocate Travis Schultz said, “against this background, I can see no reason why any commercially operated Facebook page, which deliberately invites comment on topical issues or statements of opinion, would be treated any differently at law (at least in New South Wales where this decision will be binding).”

While this ruling may still be subject to appeal Mr Schultz believes the decision will have far-reaching consequences for those who have and manage business Facebook pages.

“This judgment will have a significant impact, not just on media organisations who use Facebook to drive engagement and website traffic, but on any commercial organisation which looks to engage with the public for commercial purposes through a Facebook page”, he said.

And while the judgement will not mean the end of Facebook pages for businesses it’s a timely reminder that having a ‘set and forget’ attitude is simply not good enough.

“I don’t think that the decision is likely to stop companies from posting items on Facebook but rather, it’s likely that they will have no option but to have their administrator either set strong filters to ensure that defamatory or inflammatory comments are hidden, or to simply turn off commentary all together.

“Prudent practice is going to require that any organisation which invites discussion by the public on their Facebook page, put measures in place to control content. That may mean setting filters, regularly reviewing and removing comments or if necessary, hiding or turning off comments altogether.

And now that this precedent is set, Mr Schultz believes it will impact Australian defamation laws.

“The recent NSW decision (which could yet be the subject of an appeal) will have a significant impact on the application of defamation laws in Australia. The precedent set by this recent decision is of grave concern to any business which operates a Facebook page to interact with the public.

“At least until the dust settles or any appeal is heard and determined, there will justifiably be a degree of nervousness on the part of any business which permits the public to make comments on its Facebook page.

“It widens the scope for defamation claims to be made against organisations who will be seen as having ‘deeper pockets’ than the person who was responsible for the post in the first place”, he said

And, according to Mr Schultz it’s time Facebook was held accountable for some of the comments that are published in much the same way normal media outlets are.

“Under Australian law, Facebook or a similar social media organisation are not generally considered liable for the publication of defamatory material.

“Personally, I see this as being grossly unfair to media organisations who are liable for the republication of the defamatory comments made by third parties.

“Facebook is as much a source of news as any tabloid or online news service so why should they enjoy immunity from the consequences of republication of defamatory material? The law as it stands treats social media behemoths differently and to my mind, it gives them an unfair advantage over the more traditional media organisations”.