Social media legal risks multiply with new ruling 

Australia’s High Court has ruled that media companies can be held responsible for defamatory comments left in response to social media posts.

The judgement forms part of the Dylan Voller defamation case, which looks set to have massive consequences for the media industry and its relationship with social media. It found that providing a platform for defamatory comments amounts to participation, even if the poster was unaware of them. In this case, the ‘platform’ is a Facebook post.

Businesses and content producers will have to pay far more attention to the comments under every post and take a more totalitarian approach to removing anything suspected of being defamatory. The ruling may even discourage media companies from posting sensitive or shocking stories onto timelines.

Given that some media companies and content producers use social reach and engagement to help bring in advertising revenue, the judgment can potentially restrict or limit a line of revenue that could be lucrative for publishers.

Michael Miller, Executive Chairman, News Corp Australia, via NewsWeek.

“The decision… is significant for anyone who maintains a public social media page by finding they can be liable for comments posted by others on that page even when they are unaware of those comments.”

A significant resource drain

Major publishers will run into difficulty ensuring every comment is moderated and free from language that could get them into trouble. According to Mumbrella, which cited a Meltwater study, over 500 million comments were posted in October 2021.

Olivia Kruimel, Mumbrella

“Between The Australian Financial Review, The Australian, The Guardian Australia, ABC and News.com.au there has been upwards of half a million Facebook comments in the past month, according to Meltwater data.”

The volume of comments will take a considerable amount of moderation, and the increased costs relating to that could see publishers decide to stop posting or turn off comments.

Neither is a good solution as it’ll force Page owners to sacrifice engagement rates, which will reduce the value of owned media channels.

Comments off?

To defend themselves and avoid forking out massive sums to moderate comments, businesses and publishers could simply turn off comments on their posts.

Facebook implemented the feature in March 2021 as a response to an earlier ruling in the Voller case.

Ramya Sethuraman, Product Manager, Facebook

“Now, you can control your commenting audience for a given public post by choosing from a menu of options ranging from anyone who can see the post to only the people and Pages you tag.”

However, this may not be an ideal situation for Admins who’ve built up an engaged following or for companies who use Facebook as a tool for growth and traffic referral.

But, it will prevent publishers from being dragged into potential defamation lawsuits.

Ramya Sethuraman, Product Manager, Facebook

“By adjusting your commenting audience, you can further control how you want to invite conversation onto your public posts and limit potentially unwanted interactions.

“And if you’re a public figure, creator or brand, you too can choose to limit your commenting audience on your public posts to help you feel safe and engage in more meaningful conversations with your community.”

ACCC has been watching for a while

While the Voller case has been ping-ponging around the courts since 2017, the Australian Competition & Consumer Commission (ACCC) has maintained a pretty strict view on social media posts since 20211, maintaining that:

• Large companies, or companies with a large following, should devote sufficient resources to monitor and remove any malicious comments that may be posted.
• Smaller businesses with a lesser following aren’t expected to act as promptly, but should still take action to remove malicious comments.

More broadly, ACCC expects Admins to behave in the following way:

• Don’t make misleading claims.
• Don’t allow others to make misleading claims in comments.
• Minimise your risk by avoiding comments on social media that you wouldn’t make in more traditional forms.
• Remove false, misleading or deceptive comments.

Furthermore, ACCC can take action against companies who are in breach of any of the above.

ACCC

“The ACCC can require companies to substantiate any claims on their social media pages, and can take court action where it identifies a breach of the law (or issue an infringement notice in certain circumstances).”

It’s probably not over yet

The latest court ruling will have far-reaching consequences for media companies and businesses who use Facebook and other social media platforms to engage with their audience.

Marketers and Admins will be faced with some tough decisions:

1. Devote more and more resources to ensuring comments are free from defamatory material.
2. Turn off the ability for people to comment on posts, restrict social media growth and engagement.

Make sure to follow this case closely, as there could yet be more judgements that impact the social media landscape.