How can you protect against defamatory comments on your Facebook page?

Everyone with a social media presence in Australia needs to seriously think about dealing with defamatory comments made on their platform or web page.

The reason? The ever-present risk of a defamation suit.

The recent decision of the High Court of Australia of Fairfax Media Publications Pty Ltd v Voller, Nationwide News Pty Limited v Voller, and Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021) highlights the defamation risk.

The facts

The media groups (Fairfax Media, Nationwide News, News Channel) each maintained a public Facebook page. They created and posted content for their news stories (a headline, photo and summary) on their Facebook page with a hyperlink to the full stories on their own website.

Media groups maintain public Facebook pages for sound commercial reasons. They encourage users to “Like”, “Share” and “Comment” on their Facebook page because they affect the Facebook algorithm, increasing the profile of the page, its popularity and readership, which in turn optimises advertising revenue. They use Facebook because over 15 million Australians are Facebook users, which is a significant segment of the population.

Dylan Voller sued the media groups for defamation, claiming that he had been defamed in comments posted by third parties, made on public posts on the media groups’ Facebook pages between December 2016 and February 2017. Their subject was the mistreatment Dylan Voller suffered at the Don Dale Youth Detention Centre in Darwin.

Facebook does not allow page administrators to turn off “Comment” to block comments on public posts.

Facebook allows page administrators to “filter” comments which contain “moderated words”. These are words which they have submitted to Facebook. Comments containing these words are ‘hidden’ from publication until they are moderated. There is no ability to moderate other comments before publication (except in a private Facebook Group).

The best the media groups can do is to moderate the comments after publication and remove defamatory comments. In Dylan Voller’s case, the defamatory comments were displayed for only a short time before being removed by the media group’s Facebook page administrator.

Were the media groups publishers of defamatory comments?

The questions the High Court of Australia had to decide was whether the posting of the comments was publication which made the media group liable for defamation as a publisher.

To defame a person, the defamatory material must be published.

Two judges (Gageler J & Gordon J jointly) quoted with approval Chief Judge Cardozo*:

“In the law of defamation, ‘publication’ is a term of art … A defamatory writing is not published if it is read by no one but the defamed. Published, it is, however, as soon as read by anyone else.”
(Ostrowe v Lee (1931) 175 NE 505 *Court of Appeals of the State of New York)

They concluded:

“Publication of matter by means of the Internet is accordingly complete where the matter is accessed by a third party in a comprehensible form.” [p 61, judgment]

They then considered – Who is a publisher? They quoted with approval a decision by the Hong Kong Court of Final Appeal which found that an internet service provider could be sued for defamation as a publisher:

“a person is a publisher of defamatory matter if … the person “intentionally assisted in the process” of communicating the matter containing content conveying the defamatory imputation to a third party”
(Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366)

They observed that the media groups knew of the legal risk of being a publisher by using Facebook as a platform, and chose to do so for commercial benefit:

“The [media groups] chose to operate public Facebook pages in order to engage commercially with that significant segment of the population … [their] attempt to portray themselves as passive and unwitting victims of Facebook's functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the[y] bear the legal consequences.” [p 100 & 102, judgment]

They concluded that the media groups were publishers:

“Each [media group] became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. … [each media group was a publisher] by reason of its intentional participation in the process … having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option … to “Comment”.” [p 98, judgment]

Three other judges (Kiefel CJ, Keane J & Gleeson J jointly), also relying on the High Court decisions of Webb v Bloch (1928) 41 CLR 331 and Trkulja v Google LLC [2018] HCA 25, took the same view:

“the acts of the [media groups] in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.” [p 55, judgment]

The High Court of Australia (by a 5-2 majority) decided that that the media groups were publishers, and therefore liable for defamatory comments on their Facebook pages.

Conclusions

The law of defamation applies to everyone with a website, a Facebook or other social media page. They can be individuals, businesses, social groups, community groups, P&Cs, strata committees or neighbourhood associations. They can be private or public Facebook groups.

In Voller, the High Court of Australia has held that:

• Liability for defamation arises the instant a comment is posted on social media; and
• Everyone who maintains a social media page or website is liable in defamation not only for their posts, but for comments on their posts

The media groups will defend the claim using the defence of innocent dissemination. They will point out that they monitored the page and removed defamatory comments as soon as they were posted. This defence will be tested when the defamation trial takes place.

Can you protect against defamatory comments (such as by trolls)?

Facebook offers all users customised settings to restrict comments:

• To block posts (and comments) by nominated persons
• To filter comments which use a ‘moderated word’
• To hide or delete comments, after they are posted

Facebook offers these additional settings to closed Facebook Groups only:

• To ‘block’ comments by turning off “Comment”
• To ‘filter’ comments (before they are published) by choosing the setting “All Group Posts Must Be Approved By an Admin or a Moderator”

There is a strong case to be made that the privacy settings available to Facebook Groups that comments “Must Be Approved By an Admin or a Moderator” (before being posted) should be available to all Facebook users.

But until Facebook offers settings to moderate or block comments, Facebook users must effectively manage and mitigate defamatory comments. Michael Field provides these tips from a brand management perspective:

What are 11 effective ways for brands to manage social media comments?
Marketing Commentary by Michael Field from EvettField Partners

Brands and their marketing teams must have adequate systems in place to monitor and respond in real time to social media comments effectively.

These are 11 effective ways a brand can manage social media comments:

1. Develop ‘Membership and Participation Guidelines’ as an integral part of the organisation’s risk register and risk mitigation plan for brand and reputation management.
    
2. Actively monitor all social media channels including owned, earned and paid media.
    
3. Empower the communications and marketing teams, including third party contractors with the relevant access, delegations of authority, escalation points and tools to act immediately on any posts or comments that are in breach of the ‘Membership and Participation Guidelines’.
    
4. Monitor all first points of customer contact such as: customer complaint logs, chatbot and chatbox comments and conversations, inbound emails, Net Promoter Score (NPS) and review sites etc.
    
5. Implement a customer satisfaction rating system such as Net Promoter Score to identify any emerging issues as early as possible and look for trends or common areas of customer or community concerns.
    
6. Actively monitor traditional media such as print, radio and television for any mentions of your brand (positive and negative) using a third-party monitoring service.
    
7. Use online alert tools to track online mentions of your brand.
    
8. Deploy social listening tools to monitor the brand's social media channels for any customer feedback and direct mentions or discussions regarding specific keywords, topics, competitors, or industries.
    
9. Take screenshots and document formal diary notes of any conversations, communications or interactions related to comments or posts that are flagged in the moderation or monitoring of any online presence including social media pages.
    
10. Respond courteously and quickly and aim to move the conversation offline as quickly as possible by inviting the customer to connect with a company representative who has the authority to respond to, and remedy the customer complaint.
     
11. Actively encourage satisfied customers to write reviews reflecting their positive experiences. This can help present a more balanced approach if there are only a small number of negative comments.

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