Nowadays, more often than not, businesses have websites and social media accounts that have user comment functionality. This means they need to understand how this layer of social interaction can expose them to actions in online defamation, and how they can go about reducing this risk.

Businesses that see the benefit in maintaining the user comment functionality of their various media platforms should make an attempt to manage the inherent risks of defamation actions from 3rd party users of the platform.

For example, if you tweet something or write a post using social media, you, as the sender, can delete the original message. You cannot, however, control the message once it has been published, regardless of whether you have taken steps to delete the original. When it’s out there, it’s out there.

If a comment is uploaded using your business’ account, or onto your business’ website, this may render you vulnerable to a defamation or injurious falsehood action, specifically when the comment is untrue and leads to the tarnishing of another business’ reputation.

Are the intentions behind a potentially defamatory comment important?

In Australia, if you believe that someone’s statement has caused your reputation to become tarnished, you can initiate a defamation action against him or her. If someone accuses someone else of posting slanderous material online about another business, there are several defences that should be considered:

o   The allegedly false statement was in fact true at the time;

o   It can be argued that what was said was the ‘honest opinion’ of the person making the statement. For example, if the statement concerned current affairs it may be a throwaway comment. In other words, if the statement was simply an honest opinion, as opposed to being factual in nature;

o   Whether or not the statement was made to gain some sort of edge or advantage over your competitors;

o   If you didn’t publish the comment, you might not be liable;

o   The business or individual was unaware of the defamatory nature of the statement,

o   The company’s ignorance was not caused by negligence.

Currently, in Australia, a corporation’s capacity to bring a defamation action is limited. The only companies that can bring such an action are not-for-profit organisations and companies with less than ten employees who aren’t government-related bodies.

Having said that, individually defamed directors can initiate a defamation action. If a company wants to argue defamation, but do not fall into this limited category, they may initiate a proceeding for what’s called ‘injurious falsehood’, however, the burden of proof (how much evidence needs to be proven) is much higher.

To what extent is the publisher liable?

Anybody that has a website or social media platform that facilitates user content is liable for the statements that are made public on the platform. This includes the company, and the users posting on their page, which highlights the importance of managing and monitoring these accounts to ensure these sorts of claims do not arise.

Can a publisher avoid liability?

It is possible to avoid liability if it can be shown that the publisher was merely an ‘innocent disseminator’. What does this mean? Well, essentially, this defence will absolve the publisher of liability if it can be shown that he or she was unaware of the defamatory nature of the statement, and that this unawareness of the defamatory nature was not due to the publisher being negligent.

In addition, properly drafted disclaimers incorporated into your terms and conditions may assist in defending such a claim, and passing the buck back to the person who made the statement.

Conclusion

If you discover that there is defamatory material on your social media platforms or on your company website, you should take steps to have this taken down as quickly as you can in order to protect your business from becoming engaged in a defamation action. This is without question one of the more complex areas of law and expert legal advice may very well be required when in doubt. Contact LegalVision on 1300 544 755 and speak with one of our team of experienced lawyers.

Emma Jervis

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