BDN Lawyers solicitor Allara Freedman says there is a risk of being sued, especially if you run a social media account for a business. Photo: Thomas Lucraft.
Pot stirrers, keyboard warriors, trolls … There are many creative titles for a person who posts or replies to comments online with ill intent.
But when a ‘troll’ post has a pile-on effect that results in defamation, who is considered the instigator and what are their chances of being sued?
In legal terms, defamation is the published communication of material to a third party about a specific person or entity which is false or misleading and has caused damage to that person or entity’s reputation.
It’s a wordy definition, but it does have meaning for the average Canberran, especially if they’re involved in business.
Allara Freedman, a solicitor at BDN Lawyers, stresses how complex, emotionally loaded and expensive defamation disputes are, and that the decision to commence defamation proceedings should not be taken lightly.
“Suing someone is not only shockingly expensive, but the process can take years,” she says.
“And even if you ultimately win, if the person you sue doesn’t have the money to pay your damages, there will be no money for you to recover and you may never see a cent.
“This is why defamation complainants often choose to take on bigger companies or media outlets who have the money to be sued, rather than the individuals who actually made the defamatory comments.”
Regarding social media, the owner of a page or site is considered the ‘publisher’ of all material on it, but the area remains tricky to clarify in legal terms.
Allara recalls the 2021 defamation case involving Dylan Voller, who successfully argued that the hosts of a Facebook page were responsible for defamatory comments made by third parties via the page.
“Back in 2016, an episode of Four Corners detailed allegations of mistreatment of young teenage inmates at the Don Dale Youth Detention Centre in the Northern Territory, where Mr Voller was incarcerated at the time,” she says.
“The story got a lot of attention and articles were shared online via multiple news and media outlets, including on Facebook.
“This is where things went awry – a number of people defamed Mr Voller in the comments, falsely claiming that he was a violent criminal and presenting him as a danger to the community.”
Even though the news articles themselves weren’t defamatory, Mr Voller chose to sue the Facebook page hosts and media outlets who shared the articles rather than the individuals commenting on them.
Eventually, the High Court of Australia ruled that “the actionable wrong is the publication of the material itself” and “by creating a public Facebook page and posting content on that page, [the hosts are] facilitating, encouraging and thereby assisting the posting of comments by the third party Facebook users”.
“Put simply, if the commenting wasn’t made possible by the page itself, the defamation wouldn’t have occurred,” Allara says.
“And so, the media outlets were held liable for the defamatory comments of third-party Facebook users.”
What is the practical level of risk? The short answer is that if you’re facilitating comments online, you can be held accountable for any defamatory material published in them.
“Our legal landscape is changing, and courts are becoming more willing to accept that defamation happens on social media because, realistically, that’s where everything happens now,” Allara says.
“This potentially has the consequence of businesses being liable for someone else’s defamatory comments made on their social media page.
“The bottom line is, being involved in drawn-out legal proceedings is awful. If you’re unsure, don’t risk it because it’s just not worth it.”
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