A recent case in the South Australian District Court, Johnston v Aldridge confirmed that the old ‘notice board rule’ applies to online secondary publishers and Facebook defamation. Just as the golf club was liable for defamatory material posted on its notice board once it had been brought to their notice; just as Google had a potential liability for defamatory material accessed via its search engine once they had been told of it, so too are the authors of Facebook posts that provide for “comments” and perhaps incite acrid ones by virtue of their own initial copy.
In Johnston v Aldridge, feuding fruiterers were embroiled in a planning dispute. ‘A’ posted fairly incendiary statements about ‘J’ on his Facebook page. Pretty soon, a raft of vitriol was being put up in the comments space, with various persons slamming J as a “greedy little bastard,” a “weasel,” and an “UnAustralian, money grubbing flog!” etc., etc.
There were thousands of comments, running to 190 pages, and while some of them constituted nothing more than mere vulgar abuse, many of the comments, and the overall imputations, were clearly defamatory.
An attempt was made by A to argue that he didn’t write these defamatory comments. That did not get him off the hook. He knew of them, and he could remove them, as he had control of his Facebook profile page. He knew that his post was likely to invite such a response. Thus, A was legally liable for the damage to J’s reputation flowing from them. The fact that there were lots of comments, and that A might expect to be criticized for removing them, was no defence. J received an award of $100,000.00 in damages, plus costs for Facebook defamation.
In the recent decisions of Google Inc. v Duffy ( SASCFC 130) and Fairfax Media v Voller, ( NSWCA 102) the Supreme Courts of Appeal in South Australia and New South Wales held that a person who participated in and was instrumental in bringing about defamatory statements is primarily liable along with others. So if someone maintains a Facebook page and invites or facilitates comments by third parties which are then revealed to other readers, they are publishers and liable for those comments if defamatory, even if they never made or concurred with them.
The position is different for a ‘secondary publisher’ or subordinate distributor, who may be able to say he or she was just the conduit for the publication. They may be able to rely on the defence of “innocent dissemination,” such as the old case of the newspaper vendor who had no idea the paper he sold contained defamatory content, or, in an online example, the web-page host who provides the online server-address for a page but does not write, administer or control its content.
The ‘takeaway’? If you have a profile page, check your comments regularly! Not all feedback is welcome!
For further information please contact Peter on 8362 6400 or email Peter Jakobsen. Join our mailing list to receive updates and advice on current issues.