Organisations warned of social media legal risks

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The awarding of $105,000 in damages to a New South Wales schoolteacher after a series of defamatory posts on Facebook and Twitter has once again highlighted the risks of social media.

In the first Twitter defamation battle in Australia to proceed to a full trial, District Court judge Michael Elkaim ruled that former Orange High School student Andrew Farley should pay compensatory and aggravated damages for making false allegations about music teacher Christine Mickle on Twitter and Facebook. Elkaim ruled the posts had “no substance”.
While this case was between individuals, organisations are being warned they can be held liable for defamatory tweets or comments made on their corporate website or Facebook page – even if they were made by third parties.

Colin Biggers & Paisley lawyers Dan Brush and Adam Meyer warned in a company article that a tweet or post written “on behalf of your business or posted on your business's website” may give rise to defamation action in Australia or an overseas jurisdiction where a person suffers damage to their reputation due to a false statement.

Under Australian law a person can bring defamation proceedings if they consider that the publication of a statement caused damage to their reputation.

Anyone who maintains a webpage that allows user content or uses a social media account such as a corporate Facebook page may be liable in defamation for its own statements and for those made by others posting on their Facebook page,” Brush and Meyer wrote.

They add a publisher may avoid liability if it is an "innocent disseminator" of the defamatory statement - that is if:
  • it was not the primary publisher of the statement
  • it did not know, nor ought reasonably to have known, that the statement was defamatory
  • the company's lack of knowledge was not due to negligence
However a company may be liable if it knew or ought to have known that a statement on its Facebook page or website is defamatory and it fails to remove it.

“If a company becomes aware of potentially defamatory material on its Facebook page or website, it should remove that material as soon as possible to avoid the risk of defamation proceedings,” the pair warned.

When defamation is alleged in Australia, the writer or publisher can assert various defences to the alleged false statement including:
  • the statement and the alleged imputations at issue were true when made
  • the statement was a "fair comment" or "honest opinion" - that is, the statement is on a matter of public interest, it is comment or expression of opinion rather than a statement of fact and is based on proper material
  • the statement was made in circumstances attracting privilege”
While legislation in Australia has limited a corporation's ability to sue for defamation – limiting the ability to not-for-profit corporations, or corporations that employ fewer than 10 people and are not a government body or authority – the directors of a corporation can bring defamation proceedings if they were defamed as individuals.

“Companies may bring proceedings for "injurious falsehood", although it is generally more difficult to bring such a claim because of the evidentiary burdens involved,” Brush and Meyer wrote.

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