Are you reviewing comments made by others on your social media pages?

In a recent landmark defamation case of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller (2021) HCA 27, the High Court of Australia has ruled that Australian media companies are liable for the third-party comments made by Facebook users on their Facebook page.

What does this decision mean?

This recent High Court decision means that all individuals and companies (which include hosts and page administrators of social media pages such as Facebook, Instagram and Twitter) who “facilitate, encourage and thereby assist” the posting of comments by third-party Facebook users are liable for defamation.

The decision is significant because you or your company could be at risk of being sued for defamation if you are posting content likely to induce comment from other people which may be defamatory of an individual.

How can you or your company protect yourself from being sued for social media defamation?

If you are running a company social media page, you should:

  • prepare and implement a social media policy for your company which sets out:
    • processes outlining how your company will monitor social media content posted on your page by third-party users; and
    • how you will delete comments on your social media pages if such comments may be defamatory of another person;
  • ensure that prior to posting content on your social media pages you have considered what sort of response you might receive from the greater public. If the content you intend to post is controversial and may lead to defamatory comments about an individual being posted, you should carefully think about whether to post the content and if you do, have a clear monitoring plan in place;
  • if your company is not in position to closely monitor social media content being posted on your page, you should consider turning off the “comments” tool (noting that comments made to a public Facebook page cannot be entirely disabled); and
  • utilise other tools offered by Facebook which allow you to block particular and/or relevant words, turn on a profanity filter or implement other restrictions which may be available to you.
Case Background

An image of a young detainee, Dylan Voller, shackled to a chain wearing a spit hood was exposed in a TV report in 2016.

The alleged mistreatment that had occurred in Darwin’s Don Yale Youth Detention Centre resulted in extensive media coverage, including articles being posted by media outlets on their Facebook pages.

Whilst the alleged mistreatment captured Australia’s attention, these articles posted on Facebook received an abundance of defamatory comments about Dylan Voller by members of the public.

Rather than suing the third parties for their serious allegations, Voller instead sued several media organisations in respect of the alleged defamatory comments posted on their Facebook pages.

The primary decision

In 2019, Dylan Voller brought action in the Supreme Court of New South Wales against Fairfax, Nationwide and Sky News on the basis that they were responsible for the defamatory comments made about him.

Voller was successful, with the Court ruling that the news outlets were liable as “publishers” of their reader’s comments made on their Facebook pages. Justice Rothman found that the media outlets should have anticipated the likelihood of their posts eliciting defamatory comments about Mr Voller.

The NSW Court of Appeal affirmed the decision in June 2020.

The High Court Case

The media organisations appealed to the High Court of Australia to escape liability for defamatory comments made about Mr Voller by members of the public. However, the High Court of Australia agreed with the earlier finding of the NSW Court of Appeal that companies are “publishers” of comments made by third parties on Facebook.

The majority rejected the appellants’ argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it.

In this landmark ruling, the High Court applied a board interpretation to the meaning of “publication” and found that the media outlets posting news content on a public platform will be liable for that content if they have “facilitated, encouraged, and thereby assisted the publication” of the comments. The majority deemed that creating a public Facebook page and posting content on that page was enough to facilitate the publication of comments from third parties hence making the owner of the page liable in defamation as a “publisher”.

This case has not yet decided whether media companies will have the protection of the “innocent dissemination” defence.

You can read the judgement here.

The recent reforms to the Defamation Act (see article here) including the introduction of Section 10A “serious harm threshold” may also affect individual’s ability to sue for defamation when such defamation has only occurred by way of comments on a Facebook page.

Key Message

It is important that anyone who runs a social media page is aware of the risks of being sued for defamation and takes necessary steps to reduce such risks.

Elit Lawyers by McGirr & Snell has over 60 years’ specialised defamation experience acting on behalf of individual and companies including high profile executives, parliamentarians, sporting and public figures.

If you need legal assistance with any aspect of your social media presence or have any other defamation concerns, please contact Danielle Snell and/or Robert McGirr.

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With us personally, it is just one more way we’re different.

Danielle Snell

CO-FOUNDER AND MANAGING PARTNER

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Robert McGirr

CO-FOUNDER AND PARTNER

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"I was devastated when I learnt of a very serious defamatory publication made against me. I was so grateful to Danielle and the legal team who were able to obtain a pseudonym order in my favour so that I was able to advance defamation proceedings with anonymity."

Defamation

Plaintiff

I was devastated when I learnt of a very serious defamatory publication made against me.

I was concerned that bringing a Court proceeding would lead to widespread media reporting which would in turn repeat the allegations made against me and cause even more harm to my reputation because let’s face it – mud sticks.

I was so grateful to Danielle and the legal team who were able to obtain a pseudonym order in my favour so that I was able to advance defamation proceedings against the publishers with anonymity and be comforted that the defamatory content linked to my name would not be further spread.

I felt vindicated at the end of the matter and will always look back on the experience as a difficult one but knowing that issuing the court proceedings was what I had to do in order to achieve redress and restore my reputation.

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"When we were targeted by a vexatious and unfounded online attack, I turned to Robert, Danielle, and Elit for advice. As I am a lawyer myself, Elit’s ability to zone in so quickly on what was best for us really impressed me. "

Defamation

Lawyer and Business Owner

As a lawyer and business owner, I take our professional reputation seriously.

When we were targeted by a vexatious and unfounded online attack, I turned to Robert, Danielle, and Elit for advice. Their calm, clear, and strategic guidance was exactly what we needed. They quickly understood the key issues and provided practical options that prioritised our values and professional standing.

I was impressed with their ability to get across the key issues and provide real life practical advice during this critical time which really centred around us and what was best for our business.

As I am a lawyer myself, Elit’s ability to zone in so quickly on what was best for us really impressed me.

"

"My business was sued for defamation. The Eit team were able to pinpoint the weaknesses in the other side’s case and were able to resolve the proceeding on very favourable terms for us."

CEO

Medical Industry

My business was sued for defamation and my insurance company appointed Aggie, Danielle, Robert and the Elit team to act in my defence of the proceeding.

I was astounded by the fact that the Eit team were able to pinpoint the weaknesses in the other side’s case and after bringing an interlocutory application on my behalf, they were able to resolve the proceeding on very favourable terms for us.

I felt informed and comforted throughout the process and am very grateful for the early result that was achieved.

"

"I felt comforted and informed throughout the legal process and was happy with the early resolution of the case which achieved my ultimate objectives."

Director

ASX Listed Company

Danielle and team acted on behalf of myself and my fellow directors of an ASX listed company in the Supreme Court of Western Australia involving repeated attacks and defamatory content being posted about us on a forum website. The third party website operator was also joined to the proceeding.

Given the personal attacks made against me and my fellow directors, it was a difficult situation over an extended period and I felt comforted and informed throughout the legal process and was happy with the early resolution of the case which achieved my ultimate objectives to have the content removed and undertakings that no future defamatory content would be published by the person involved.

"

"I found Danielle and Robert to be knowledgeable and responsive especially because there were tight deadlines. We ultimately succeeded on appeal and this was the result we were very much hoping for."

Appellant

Building Appeals Board

Danielle and Robert acted for our family in relation to the appeal lodged by us to the Building Appeals Board concerning a lift we sought to have installed in our property for my mother which was objected to by the Council.

I found Danielle and Robert to be knowledgeable and responsive especially because there were tight deadlines including for the provision of expert evidence and a number of technical matters to consider.

We ultimately succeeded on appeal and this was the result we were very much hoping for.

"

"I was referred to Danielle as a leader in her field and it was evident from the initial phone call why she had garnered that reputation. I now recommended Danielle and team to my own clients who encounter defamatory attacks."

Defamation

Law Firm Owner

When my business and I were defamed and threatened online, I was incredibly distressed. Particularly because the publisher threatened to publish more defamatory material.

I was referred to Danielle as a leader in her field and it was evident from the initial phone call why she had garnered that reputation.

These matters are so time sensitive and was so grateful for how quickly Danielle and her team made time for me and wrote to the publisher in order to prevent any further damage to our reputation and have the defamatory material removed.  Their ability to formulate an action plan so quickly and act upon it led to the publisher agreeing to remove and not publish any further defamatory material.

This was a huge relief to me, I now recommended Danielle and team to my own clients who encounter defamatory attacks as I know first hand they will be looked after and positive results can be achieved with the right strategy and Elit’s legal representation.

"

"Navigating a complex Parenting and Property matter is never easy. I’m incredibly grateful for Aggie's professionalism, empathy, and relentless commitment to achieving the best possible result for me and my family."

Parenting and Property

SK

Navigating a complex Parenting and Property matter is never easy, especially when emotions run high and the other party proves difficult to deal with. Throughout my challenging journey, Aggie was a steady and strategic guide. Her experience and sound advice were instrumental in helping me stay focused and make informed decisions, even when the situation felt overwhelming.

Aggie not only provided the legal expertise I needed but also the emotional clarity that helped me move forward with confidence. She approached my case with unwavering dedication and a clear strategic vision, helping me achieve an outcome that once felt out of reach. With so many odds stacked against me, I couldn’t have asked for a more competent and supportive lawyer by my side.

I’m incredibly grateful for Aggie’s professionalism, empathy, and relentless commitment to achieving the best possible result for me and my family.

"

"I was shocked when a high-value asset of mine was stolen and my insurance company refused to pay me out. Within two months of engaging Elit, my insurance company changed its mind. What a spectacular result!"

Executive

Luxury Asset Owner

I was shocked when a high-value luxury asset of mine was stolen and my insurance company refused to pay me out on the basis that I had allegedly breached a condition of the insurance policy.

As a busy executive, I needed legal help that was clear, prompt and effective and this was exactly what I got from Danielle, Mark and the Elit team when they commenced acting on my behalf. Elit analysed the facts and noticed various details that provided an opportunity to challenge the insurers’ denial of my claim.

Within two months of engaging Elit, my insurance company changed its mind and agreed to indemnify me under my policy. This was such a massive relief to me.

What a spectacular result! I can’t thank the Elit team enough.

"

"Danielle's dedication and expertise was outstanding and made a significant impact on the case, leading to an outcome we were very pleased with."

CEO and Director

Technology Sector

Danielle Snell and the Elit team represented our company in a restraint of trade case issued in the Federal Court of Australia concerning a former senior executive of our company breaching his employment contract and duties by allegedly soliciting clients and staff from our company to set up a competing business.

Danielle’s strategic acumen in the litigation was impressive. She maintained clear, practical and consistent communication throughout the process, keeping me informed of every development. Her dedication and expertise was outstanding and made a significant impact on the case, leading to an outcome we were very pleased with.

"

"Danielle's guidance was invaluable. I highly recommend Danielle, Robert and the Elit team for their dedicated, expert and supportive approach to commercial litigation."

Managing Director

Finance and Infrastructure Sector

Danielle represented me when I was a key witness in a significant construction case spanning across 12 weeks.

I was required to give evidence in the litigation which involved me being cross-examined by senior counsel over 2 days. Danielle’s guidance was invaluable. She provided clear direction and advice about the technical and practical aspects of giving evidence and instilled confidence in me throughout the process. Her expertise and unwavering support during this time was pivotal.

I highly recommend Danielle, Robert and the Elit team for their dedicated, expert and supportive approach to commercial litigation.

"

"I just wanted to thank you all for the hard work and dedication you put into my Workcover case. A special thanks to Aggie whom I'm glad I chose to support me."

Personal Injury

Shane

I just wanted to thank you all for the hard work and dedication you put into my Workcover case.

A special thanks to Aggie whom I’m glad I chose to support me and give me the step by step instructions on how to go about proving my case for a result in my favour.

Thanks again for all your advice.

"

"Aggie is the best lawyer in Common Law Claims I have ever worked with. Aggie helped me achieve an extraordinary outcome."

Common Law Claim

Ian

Aggie is the best lawyer in Common Law Claims I have ever worked with. Having seen a couple of large Law Firms l felt let down, being quickly shown the front door. Luckily for me a friend suggested seeing Aggie Vlahos (Partner).

Having engaged Aggie Vlahos gave me the confidence to continue with the injuries l knew were caused by heavy physical and repetitive work. I am also indebted to Brendan Johnson (Barrister) for his outstanding efforts!

She explained everything in a way I could easily understand and always got back to me quickly when I had questions even outside her working hours.

Aggie helped me achieve an extraordinary outcome. However, only charged fair fees.

If someone is seeking a legal help, I highly recommend Aggie Vlahos and Elit Lawyers.

P.S. Thanks to you so much Aggie

"

"I had the good luck to be recommended to Aggie Vlahos for handling my Estate Litigation Case. Through Aggie I achieved a very satisfying result."

Estate Litigation

Jan

I had the good luck to be recommended to Aggie Vlahos for handling my Estate Litigation Case. She was always available to me, no matter how big or small my concern was. She was kind, patient, easy to talk to and very understanding regarding my troubles.

The case was resolved within only 5 months, which I was grateful for. Through Aggie I achieved a very satisfying result.

I would have no hesitation in recommending her to others.

 

"

"If you want a safe, caring, professional group of lawyers and company, look no further than Aggie Vlahos and Elit Lawyers."

Family Law Matter

Michael

Thank you to Aggie Vlahos (Partner) and the staff at Elit Law, also James Eley (Barrister). You did a marvelous job in representing me in relation to my family matter and most importantly caring about me and providing a secure environment for me to navigate a very difficult situation.

The result you achieved was nothing short of amazing. The professionalism displayed on the day by Aggie and James blew me away. With their invaluable guidance and support we achieved a extremely favourable result.

If you want a safe, caring, professional group of lawyers and company, look no further than Elit Lawyers.

Great people, Great Service, Great Company.

 

"

"The best of the best plaintiff lawyers against insurance companies. We had a very tough and complex case and Danielle and her team settled with the insurance company for an optimal outcome."

Insurance Policy Holder

Home owner

The best of the best plaintiff lawyers team against insurance companies.

We had a very tough and complex case against insurance company that we lost our home and contents.  After disappointing and frustrating process from another law firm and firing them we found Danielle Snell and her team.

They are very dedicated, knowledgeable, passionate and possess great communication skills.  We couldn’t ask for more and settled with a optimal outcome.

"

"It’s great to be able to confidently refer clients to someone who can help and support them, and to feel that they are receiving the best service."

Senior Adviser

Financial Planner

We are so glad to have you in our referral channel.

It’s great to be able to confidently refer clients to someone who can help and support them, and to feel that they are receiving the best service.

"

"This was a “David v Goliath” fight as our dispute was with a large global corporation. The attention, compassion and guidance that Danielle and the team showed us was absolutely incredible."

CEO & Founder

National mental-health support organisation

We recently instructed Danielle from Elit Lawyers by McGirr & Snell to help with a legal dispute. As a small purpose led business, this was a “David v Goliath” fight as our dispute was with a large global corporation. This dispute was during a very emotional time as we were in the middle of a global pandemic, Melbourne’s sixth lockdown, homeschooling and no childcare – all while trying to keep our small business alive.

The attention, compassion and guidance that Danielle and the team showed us was absolutely incredible. I have 10 years legal experience myself and even with that, I was reluctant to litigate, especially during such a difficult time. However Danielle always gave us confidence in knowing that she was in our corner and always working for our best interests, so my reluctance was quickly appeased.

Today I am pleased to share that David defeated Goliath and we could not be more thrilled with the result we received thanks to Danielle and the team from Elit Lawyers. Danielle not only saved our company, but ensured that we could continue doing the good work we were previously and helping improve the lives and mental health of mothers across Australia.

I could not recommend Danielle and the team from Elit Lawyers more highly. I am *hoping* that I will never need their services again, but feel very reassured knowing they are there and always in my corner.

Thank you Danielle and team.

"

"Elit negotiated a settlement which saw all proceedings against my company dismissed, with no order as to costs."

Owner and Managing Director

Major Transport Company

I was recently introduced to Elit Lawyers by McGirr & Snell by my former lawyers after they were required to cease acting for me due to a conflict of interest. The stakes were high as my company was exposed to multiple court proceedings. Elit Lawyers by McGirr & Snell impressed me so much. They went that extra mile and were able to negotiate a settlement which saw all proceedings against my company dismissed, with no order as to costs. I can’t thank Elit enough.

"

"Danielle is a well-known and respected lawyer who knows how to handle difficult and intensive litigation."

Kings Counsel, Devers List

Victorian Bar

Danielle Snell is a very intelligent and impressive lawyer whom I have worked with in my role as senior counsel on various litigation matters.  She is a well-known and respected lawyer who knows how to handle difficult and intensive litigation.  Danielle combines a deep knowledge of the law across many practice areas with a practical approach to litigation, and is authentic and charismatic in her dealings with others.

"

"Danielle and Robert demonstrate outstanding expertise and approach all matters methodically with a clear and practical focus..."

Chief Operations Officer

Peak industry body for fire protection

As Chief Operating Officer it is extremely important to work with lawyers who are easily accessible, honest and trustworthy.  We have briefed Elit Lawyers by McGirr and Snell across various legal disciplines and now use them as our “go to” solicitors.  Danielle and Robert demonstrate outstanding expertise and approach all matters methodically with a clear and practical focus on achieving the best possible result.

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