WARNING – HIGH RISK AHEAD

In a recent High Court case, it has been found that media companies are liable for the publication of third-party defamatory comments.

However, they will not be the only ones affected by the decision. In practice, all people and organisations that maintain a website and/or social media page will be affected.

In this case, a defamation action was launched against Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited, and Australian News Channel Pty Ltd over comments made by Facebook users on news stories posted to Facebook by the media companies. The question was raised as to whether the media companies were the ‘publishers’ of the defamatory material. The publication is an essential part of proving defamation has occurred.

Ultimately, it was held that the media companies had facilitated, encouraged, and assisted the posting of comments by third-party Facebook users and this was sufficient for them to be determined to have published the information.

Concerningly, the decision also confirms that the media companies did not need to have notice of the defamatory material.

Local Governments all over Queensland utilise Facebook as an important tool in community engagement. However, resourcing limitations and other factors may now mean that the use of social media is too big a risk for local government to take. It may well be the case though, particularly in those states that have adopted them, including Queensland, that recent changes to defamation legislation will help to curtail any potential fallout.

In any event, to mitigate this new common law risk local governments should be reviewing their social media policies and monitoring practices.

Need help to review your policy? Contact our Team today.

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