Facebook Social Media Policy

Where defamatory material has been published about you on social media, there are three important steps you can immediately take to properly protect your interests. While in the heat of the moment some of these steps can be overlooked, ensuring you follow the points below will better enable you to hold the author of the material accountable.

“The anonymity, instantaneousness and wide-ranging reach of the Internet and social media make it a dangerous tool in the hands of persons who see themselves as caped crusaders or whistleblowers, or alternatively want to humiliate or “troll” other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention.” – Rothe v Scott (No. 4) [2016] NSWDC 160

Take a copy of the material

Defamatory material, by its very nature, has the capacity to cause significant reputational damage even if only available online for a short period of time. But what happens if the material is deleted? The damage has been done, however the evidence is gone. While it may be possible to obtain a historic or ‘cached’ version of the material, it is a good idea to save or print a copy just in case. You should also take a copy of any updated or edited versions of the material.

Take a copy of any engagements that may cause the material to be republished or shared with other users

Similarly, you should take a copy of any republications of the material and, where possible, obtain evidence of how widely the material has been broadcast – commonly referred to as ‘reach’. For example, in the case of a YouTube video, how many times has it been viewed? In the case of a Facebook post, how many times has it been shared or ‘Liked’?

Attempt to have the material removed

If you know the author (and contacting them isn’t likely to further inflame the situation and/or cause them to publish more defamatory material), contact them and ask them to remove the material.

If they are unwilling to do so, contact the site on which the material is published and report the content. While in our experience it is usually quite difficult to have large social media organisations remove defamatory content, they may do so where the material is, on the face of it, obviously defamatory.

Case study

A case in NSW saw a school teacher take legal action against a former student who made defamatory comments about her on Twitter and Facebook. It was the first defamation case in Australia directly involving Twitter. The teacher was awarded $105,000 in damages. The maximum amount of compensation available for non-economic loss under the Defamation Act 2005 is $250,000.

The Court ruled in the teacher’s favour and commented that the comments had a “devastating effect” on the teacher, who, as a result of the defamation, was forced to take sick leave and could only return to work on a limited basis. The Court also noted that the evil in social networks lies in the “grapevine” effect that stems from how easily it is for the communicated material to spread, once it has been published.

The student lost the case because the comments he made were unsubstantiated and false. He initially made the comments because he believed the teacher (plaintiff) was directly responsible for taking over his father’s teaching position at the school. What the student didn’t know, however, was that his father had actually left the school for health reasons that were undisclosed to his son.

Should business owners be worried about defamation?

Yes. As a business, if you are advocating or hosting an online discussion that takes place on your social media channels, you could be liable for any defamatory comments that users make whilst taking part in that discussion, if you don’t act quickly and remove the defamatory comments once a complaint has been made. With this in mind, we recommend all businesses have a “notice and take-down procedure” included as part of their social media policy.

If you are not successful in having the material removed, or at any stage require advice on your specific circumstances, please don’t hesitate to contact us or call on 1800 994 279.

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