Social Media Moderation — an urgent legal necessity!

27 September 2021

The subject matter of our LG Alert – Defamation and social media – what does the ‘Voller Case’ mean for you? on 9 July 2019, was, subsequently, the subject of an appeal to the High Court. The appeal has now been heard and determined.

In the judgment in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 the High Court upheld the lower decision that the administrators of social media pages can be held liable for defamatory comments posted on those pages by third parties.

This decision emphasises the need for councils (as well as individuals, businesses and all other social media users) to carefully moderate their social media pages if they wish to avoid liability in defamation.

The key facts and findings of the High Court appeal and decision are:

  • Mr Voller was the subject of an ABC ‘Four Corners’ episode, aired in 2016;
  • Fairfax Media, as publisher of the Sydney Morning Herald as well as the publishers of The Australian and Sky News oversaw each posting content on their Facebook pages concerning the Four Corners episode;
  • none of the content published by Fairfax or the other entities was defamatory;
  • Mr Voller alleged that a number of comments posted by third parties in response to the Fairfax content, were defamatory of him;
  • at the time that the comments were posted, it was not possible to disable the ability for Facebook users to make comments. However, it was possible for them to be deleted, once posted;
  • Fairfax and its entities deleted defamatory comments promptly;
  • Mr Voller sued Fairfax and the other publishing entities on the basis that they were liable for defamation from having ‘published’ the comments of third parties;
  • the High Court was asked to consider whether Fairfax and the other publishing entities were liable for defamation, on the basis that they had “published” the defamatory comments made by third parties;
  • the High Court found that Fairfax and the other entities were liable. In making this finding, the High Court determined that:
  • by publishing articles on social media, Fairfax and the other entities were, necessarily, inviting comment. In this sense, the social media pages were not considered as “passive” but active, in a manner similar to live television or broadcast radio;
  • social media platforms convey commercial, promotional and other benefits on users. By using social media for these purposes, legal consequences arise and the potential to be held liable for defamation cannot be avoided;
  • by posting as they did on social media, Fairfax and the other publishing entities were encouraging and facilitating public comment. Therefore, they were, as a matter of law, publishers of those comments;
  • it is to be noted that this case considered only, whether Fairfax and the other entities were “publishers” of the relevant material. The question as to whether they were actually liable for defaming Mr Voller and, if so, what the compensation payable to him should be, are matters that are yet to be determined.

Implications for councils in South Australia

In South Australia, matters of defamation are dealt with in the Defamation Act 2005. Its content gives rise to considerations not dissimilar to those considered by the High Court in that liability for defamation arises where a person “publishes” material that is, or may be, defamatory of another person.

The practical effect of the High Court decision is that there is now a more straightforward, if not an easier, route for individuals and small businesses claiming that they have been defamed to commence defamation actions against councils for comments on council social media platforms that host comments made by third parties.

This risk is to be managed by reviewing and, if necessary, amending the council’s social media page settings.  Changes made by Facebook and other platforms, after Mr Voller’s action was commenced, allow for administrators to:

  • turn off comments or posts altogether;
  • moderate third-party comments before they are published;
  • use “filters” to block posts using particular words or offensive language.

One result of the High Court decision is that careful and considered use of such measures will go a long way to avoiding the risks of being, successfully, pursued in defamation.

Accordingly, our recommendation is that councils consider an urgent review of their social media policies and procedures in light of the High Court judgement.

Please call  Michael Kelledy on 08 8113 7103, Natasha Jones on 08 8113 7102, Victoria Shute on 08 8113 7104, or  Tracy Riddle on 08 8113 7106 with any questions.