RISK WATCH
Control your trolls: Protecting your practice on social media practitioners KATE MARCUS, RISK & CLAIMS SOLICITOR, LAW CLAIMS
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aw Practices should be alert to the risks of maintaining a social media presence. With the ever-changing needs of communication and marketing, social media - whether it be through Meta, Facebook, You Tube, WhatsApp. Twitter, Instagram, Pinterest, Snapchat to name but a few - is a tool which many Law Practices are utilising. However, care needs to be taken. Whilst last year’s High Court decision of Fairfax Media Publications Pty Ltd & Ors v Voller [2021] HCA 27 was of particular relevance to media outlets operating social media pages, the implications of the judgment extend beyond traditional media organisations. Following a news story about Mr Voller and his incarceration in a juvenile detention centre in the Northern Territory, a number of allegedly defamatory comments were made by third parties on the appellants’ Facebook pages. Each of the appellants were media companies with newspaper and/or television stations and each operated a public Facebook page where third-party Facebook users could make comments. Mr Voller issued proceedings alleging that the appellants were liable for defamation as the publishers of those comments. By majority the High Court held that, subject to any applicable defences, defamation operates as a tort of strict liability and intention to publish the specific content is therefore not required in order to render someone liable as a publisher of defamatory content. The liability of a publisher depends on whether, by facilitating and encouraging the relevant communication, it “participated” in the communication. By creating a public Facebook page and posting contents on that page, the appellants facilitated, encouraged and thereby assisted in the publication of comments from third-parties. Accordingly, the appellants were held to be the publishers of the third-party comments.
40 THE BULLETIN April 2022
Implications for Law Practices The ramifications of the judgment extend beyond Facebook and media outlets. It highlights that organisations which maintain their own websites and social media pages are exposed to risk. This includes law firms. If you have a social media page upon which third-party users can post comments, care must be taken. By providing such a forum, there is a risk that the law firm could be found to be a publisher for the purposes of defamation law. What can you do? It is often difficult to disable comments on social media sites but it is worth considering whether it is necessary for the public to comment on your business pages or posts. While larger organisations may have the infrastructure to monitor sites constantly and remove offending posts almost immediately, smaller organisations will need to take extra precautions and be highly vigilant. Bear in mind that posts can “go viral” in a matter of minutes. It is now possible with Facebook, for example, to disable posting to your business page by the public. Law Practices with social media presence are encouraged to 1. consider whether to disable posting/ commentary altogether
2. rigorously monitor and moderate the site(s) 3. immediately remove any comment or image which may (even remotely) cause offence. If you are not in a position to constantly monitor your social media sites, query if your needs are better met by disabling comments or by having a website that does not provide for third party comments. Practitioners also need to be alert to the fact that defamatory posts on social media may not be covered by your Practice’s professional indemnity insurance. Coverage will depend on the nature of the social media involved and the nature of the posts themselves. General defamatory posts may not be sufficiently connected with the “legal practice” so as to fall within cover. If defamatory statements have a real link to the actual work undertaken by the practice, then there may be cover under the policy. However, each situation depends heavily on its individual facts and it is not possible to be definite about coverage in the absence of all relevant facts and details. It is therefore essential that Law Practices tread carefully and consider all the implications of their social media presence.
