High Court Case Means Red Tape for Small Business – Here is how you can avoid getting wrapped up

Your business could be at risk for defamation action if comments left on your Facebook page or Instagram are defamatory, yes even if you didn’t know they were there. Since a recent High Court judgment, now you not only have to comply with all your other legal obligations as a small business, your Social Media accounts have just become a high risk.

For example let’s just say you are a florist and one of your happy customers leaves the following comment on your Facebook page:

Thanks to Henry’s Flowers they saved my wedding. Sarah’s florists were awful to deal with and got all of my orders wrong, they were going to ruin my wedding due to their incompetence. I’m so glad that Henry’s Flowers could save the day. 5/5 would use again. – Geoff

Prior to the High Court ruling this would have been a great post to have on your site. The client is happy and they are slamming your competition… perfect. Now sure Sarah’s Flowers could sue Geoff for defamation, but the problem Henry’s Flowers might also now be liable for defamation and damages if the post remains.

The relevant cases are Fairfax Media Publications Pty Ltd v. Voller, Nationwide News Pty Limited v. Voller and Australian News Channel Pty Ltd v. Voller.

We all know how social media sites work. Businesses such as Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd, maintain public Facebook pages on which they invite comment on the posted content from the public. Mr Dylan Voller claimed that following the posting about news stories referring to his incarceration in a juvenile justice detention centre in the Northern Territory, third-party Facebook users made comments that were defamatory of him. He alleged that these businesses were as liable for the defamation as the publishers of those comments. Whilst the parties agreed to the question of publication, the question they disagreed upon was whether Mr Voller, “has established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users”. This month the High Court declared that Mr Voller had established this connection and that these businesses were liable.

So what do you have to do? Well, first off I would suggest being very careful. High Court decisions affect the whole of Australia so if you find any whiff of defamatory statements being made on your social media, delete it immediately. Every business is now vulnerable, and it is best to weigh in on the side of caution.

Small Business already has more than enough red tape. In my view this places an unnecessary burden on businesses that is neither reasonable, sustainable, or realistic. I’ll be writing to the small business commissioner, asking for protections to be put in place for small businesses to relieve them of this burden. The last thing you need to add to your administrative burden is dealing with trolls on Facebook or social media lest you be sued for defamation. I would encourage you to do the same, this is a new ruling and now is the best time to ask the government for action to put in place protections for small business.

The commissioner’s email is sasbc@sa.gov.au, phone: 1800 072 722 or 08 8303 2026 and the website is https://www.sasbc.sa.gov.au/

Please see https://www.abc.net.au/news/2021-09-08/high-court-rules-on-media-responsibility-over-facebook-comments/100442626?fbclid=IwAR2kGhhHXZ11w_G1-BHXeJS5zNEKFaK5_wUJcOGYv7c0zZZXomq86RpstzE for more information.

You can find the history of the case here at: https://www.hcourt.gov.au/cases/case_s236-2020