People and businesses need to be careful about what they say online regarding other people. Two recent cases continue a trend of companies being sued for content that they haven’t posted themselves, but have been posted by users or visitors of their websites or social media platforms. The cases also reaffirm existing defamation law that organisations can be held responsible for content other people post or publish as “re-publishers” of the defamatory content. The cases also reiterate that in the eyes of the law, organisations will be held to the same legal standards for material published online and on social media as they are for traditional media.
The recent Australian cases are summarised below:
Duffy v Google Inc
- Between 2007 and 2009, articles about Dr Janice Duffy were published on a website known as the “Ripoff Report”.
- Dr Duffy claimed that these articles were defamatory as the articles made several imputations, including that Dr Duffy was “a psychic stalker,” “harasses psychics” and “spreads lies.”
- In 2009, Dr Duffy became aware of the articles and requested that Google remove them from its searches. Google declined.
- In 2011, Dr Duffy became aware that the Google search engine “auto-complete” function would suggest and direct the searcher to websites and terms which she considered defamatory.
- Google denied it was the “publisher” of the materials and maintained it was an innocent disseminator of the search results.
- The Court found that Google was in fact a publisher of the information and was therefore liable in defamation.
- The Court is yet to decide on the consequences and penalties for Google, but they are expected to be significant.
Von Marburg v Aldred & Anor
- The plaintiff, who is a specialist medical practitioner, alleged that he was defamed by publications which appeared on a Facebook page.
- The first defendant was alleged to be the administrator of the Facebook page. The second defendant was alleged to be the publisher, in that it directed and instructed the first defendant what to post on the Facebook page. The second defendant was also claimed to have known about the substance of the posts and had the opportunity to remove them but didn’t.
- The defendants argued that there was no tenable claim against them.
- The Court held that although the plaintiff had previous opportunities to change their claim, there was a tenable claim to be determined and allowed the claim to continue.
What does this mean for you?
These cases confirm that there is a real risk of you and your company being found liable for defamation even if you are not the creator of content, but allow the content to be displayed on your social media platforms or websites.
The cases also emphasise the need for organisations to ensure they constantly monitor the content on their social media and the material they publish online.
What should you do?
- You should ensure that your organisation has a well-documented employee policy that clearly defines the type of content your staff can (and cannot) publish on behalf of the organisation online and on social media.
- If your organisation is active on social media, ensure that you regularly monitor your social media platforms for user generated content which may be defamatory or breach other legal requirements (e.g intellectual property infringements, privacy laws etc) and have a clear policy for the use of your platforms that allows you to remove infringing content posted by users.
- If you receive a complaint relating to a post or comment, you should treat the complaint seriously and seek legal advice.
CIE Legal is able to assist with any questions about whether specific online content is defamatory or unlawful. We can also help you develop social media policies that align with your business operations and strategies to mitigate the risks associated with your social media and online presence.
Please contact CIE Legal to see how we may be able to assist you.