The rapid rise of social media in the last two decades has meant that things like online bullying and the consequences of other online conduct has been bought into the spotlight requiring a response from the law.
In Australia, the law is continually evolving in this space. Currently however, administrators of Facebook pages, groups and other interactive social media pages must treat third-party comments as a legal risk, not merely user-generated material.
The central principle is that a page administrator may be a “publisher” of comments posted by others where the administrator creates or operates the page, posts content and thereby facilitates or encourages public comments.
Defamation liability
The High Court in Fairfax Media Publications Pty Ltd v Voller confirmed that administrators of public Facebook pages can be publishers of third-party comments for defamation purposes, even if they did not write the comments and did not know they were defamatory when posted. The majority of judges in that case found that operating a public page and posting material that allowed comments was sufficient participation in the communication of those comments.
This principle is not confined to media companies. It is relevant to businesses, organisations, community pages and other public social media forums, and potentially to platforms beyond Facebook where public comments are enabled.
A business may therefore be sued if a third party posts a defamatory comment about an individual or corporation on the business’s page.
A claimant will still have to establish the usual elements of defamation, including publication, identification, defamatory meaning, and – under the reformed uniform defamation laws –serious harm. In NSW, a prospective plaintiff must generally issue a concerns notice before commencing proceedings, giving the publisher an opportunity to make amends.
Defences and recent reforms
Being a “publisher” does not automatically mean liability. Defences may be available, including innocent dissemination, truth, honest opinion, privilege or public interest, depending on the facts.
Since 2024, NSW and other jurisdictions have introduced further digital intermediary reforms.
These may assist some administrators or online forum operators in defined circumstances, particularly where complaint-handling and prompt removal/access-prevention mechanisms are used. However, those protections do not remove the practical need for active moderation.
Other legal risks
Social media administrators may also face exposure under other laws. For example, misleading customer comments or testimonials left on a business page may create risk under the Australian Consumer Law if the business becomes aware of them and leaves them online. Offensive, discriminatory, vilifying, threatening or unlawful material may also attract regulatory, employment, platform or criminal consequences depending on the content.
As you can see, most of these types of behaviour are not social media or internet risks.
The risky conduct can and does occur just as frequently in “real-life”.
The law is adapting however to remove the veil of anonymity historically made possible by the internet.
Administrators should:
• monitor comments regularly;
• remove, hide or restrict defamatory, misleading or unlawful comments promptly;
• disable comments on high-risk posts where appropriate;
• maintain clear house rules and moderation policies;
• train staff with page access;
• preserve records of complaints, moderation decisions and removals.
In practical terms, a social media page cannot be treated as “set and forget”.
Businesses obtain commercial benefit from public engagement and may bear legal consequences for content they facilitate.