Your Facebook page, your problem?

Allowing clients and potential clients to engage with your firm online can be a great way to generate business and a rapport with your client base, but there are serious risks attached.

In Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102, the New South Wales Court of Appeal considered the question of whether the owner of a Facebook page might be responsible for content posted by third parties commenting on the stories posted on those pages, for the purposes of a defamation claim.

The Facebook pages in question were owned by media companies, which posted stories and encouraged comments as a means of increasing traffic to their own websites. Moderators could hide or delete comments after posting, and block some content prior to publication via the use of filters.

The question ultimately came down to whether or not the owners of the pages were publishers of the content posted by third parties; the Court of Appeal agreed with the judge at first instance that they were indeed publishers, due largely to their choice of the Facebook platform. The court noted (at 109):

“…by the terms of their arrangements with Facebook, and by their invitations to members of the public to comment on their news items, the applicants accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments. They did so from the time they made their Facebook pages available to those who wished to comment, and by actively inviting comment. It was the applicants who provided the vehicle for publication to those who availed themselves of it. The character of the applicants’ conduct relied on as constituting participation in publication is not affected by the lack of attribution of ‘ownership’ to them of any part of the Facebook facility or service.”

While the decision may yet be appealed, and in any event is a preliminary decision in a matter yet to be fully litigated, the opinion of the New South Wales Court of Appeal carries significant weight. In addition to being cautious with their own Facebook pages, practitioner should ensure clients are alive to the potential liability associated with their own pages.

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Social media is a powerful tool, and its immense capabilities have been on show during the COVID-19 crisis, but like any tool it is open to misuse. Law firms and clients which decide to utilise platforms such as Facebook should give thorough consideration to how it is to be used. Important questions include:

• Will the comments facility be activated?
• If so how will comments be filtered/moderated?
• How will complaints be dealt with, and undesirable content removed?

Lots of clicks can elevate the profile of both lawyer and client, but being on the wrong end of a defamation claim is not the way to do it. Contrary to the old saying, not all publicity is good publicity.