In brief - Comments on social media can lead to defamation actions
Companies can be held liable for defamatory tweets or comments made on their corporate Facebook page, even if those comments have been made by third parties.
Comments on Twitter and Facebook can be defamatory
Companies that maintain corporate websites with user comments functionality, use corporate pages on sites like Facebook, or use communication tools like Twitter should take steps to reduce exposure to potential defamation actions from third parties discussed on those websites.
Published social media messages or tweets can be deleted by the sender, but once published, the message can be saved or forwarded – even if the writer deletes the original.
A tweet or post written on behalf of your business or posted on your business’s website may give rise to defamation action in Australia and in any overseas jurisdiction where a person suffers damage to their reputation due to a false statement.
Twitter and US defamation decision
A California court recently heard one of the first cases of alleged defamation involving Twitter. The claim arose from a single tweet by singer and actress Courtney Love. The tweet sent by Ms Love suggested that her lawyer at the time had been "bought off" when she wouldn’t help Love in a legal matter.
Ms Love claimed that the tweet was intended for a single recipient and not meant to be posted publicly and also claimed that she deleted the tweet as soon as she realised that it had been posted publicly.
The jury verdict in California proceeded on the basis that Twitter messages could be defamatory and would be evaluated by the same rules that have applied to traditional media defamation cases in the US. Jurors determined that Love's tweet was inaccurate and contained false information, but the musician didn't know it wasn't true at the time the tweet was made. As a result the action against Ms Love was not successful.
Intention of the writer may not be relevant in Australia
In Australia, a person may bring defamation proceedings if he or she considers that the publication of a statement caused damage to their reputation.
When defamation is alleged in Australia, the writer or publisher can assert various defences to the alleged false statement including:
• the statement and the alleged imputations at issue were true when made
• the statement was a "fair comment" or "honest opinion" - that is, the statement is on a matter of public interest, it is comment or expression of opinion rather than a statement of fact and is based on proper material
• the statement was made in circumstances attracting privilege
Defamation actions by corporations and their directors
In Australia, legislation has limited a corporation’s ability to sue for defamation. Defamation actions by companies are limited to not-for-profit corporations, or corporations that employ fewer than 10 people and are not a government body or authority.
However, the directors of a corporation may bring defamation proceedings if they were defamed as individuals. Companies may bring proceedings for "injurious falsehood", although it is generally more difficult to bring such a claim because of the evidentiary burdens involved.
When can publishers avoid liability for defamatory statements?
Anyone who maintains a webpage that allows user content or uses a social media account such as a corporate Facebook page may be liable in defamation for its own statements and for those made by others posting on their Facebook page.
A publisher may avoid liability if it is an "innocent disseminator" of the defamatory statement - that is if:
• it was not the primary publisher of the statement
• it did not know, nor ought reasonably to have known, that the statement was defamatory
• the company’s lack of knowledge was not due to negligence
Companies need to monitor their Facebook page and remove comments which could be defamatory
A company may be liable, however, if it knew or ought to have known that a statement on its Facebook page or website is defamatory and it fails to remove it.
If a company becomes aware of potentially defamatory material on its Facebook page or website, it should remove that material as soon as possible to avoid the risk of defamation proceedings.
This is a complicated area of law; if you have questions please contact us.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.