Social media provides an excellent opportunity to modernise the way you interact with customers, but how they interact with you can sometimes cause difficulties. For example, what should you do if a customer leaves an abusive comment in respect of a member of staff or another customer? Or if customers start abusing each other on your Facebook page? Surely, as an organisation you can’t be held liable for defamatory comments made by others on your Facebook page, or can you?
The Law
Two cases provide some guidance to organisations as to their potential liability.
Watts v Times Newspapers Ltd confirmed that liability for defamatory material extends to any person who participates in or authorises its publication. Of course, this will include persons such as authors and editors, but it may also apply to those who were involved in disseminating it, despite it not coming from them originally. Therefore, there is a potential risk that an organisation could become liable for the content posted by a customer or third party.
In a traditional’ claim brought against the ‘author’ of a defamatory statement and/or a person who has published it, the question of responsibility for publication will usually be relatively easy to answer, i.e. who wrote or said it. However, understanding who is legally responsible for material published online can be difficult due to the ease of hiding identity. If you can identify them, is it viable to sue them? Alternatively, is it better to seek damages from an inadvertent publisher who has failed to act to remove the offending statement?
In Tamiz v Google Inc. the Court of Appeal found that it could be inferred that once the host (which would potentially include an organisation who has a social media group/page) is made aware of defamatory material, or if by the exercise of reasonable care, they should know that the material is defamatory, they become responsible for the continued publication of that material if they refrain from removing it. However, before ‘notification’, the host is not considered to be a publisher.
In Tamiz, the inference of responsibility did not arise until Google Inc. had a ‘reasonable time within which to act to remove the defamatory comments’. In this instance the time period was deemed to be five weeks, but this will vary depending on the circumstances of each case and could be considerably less for a smaller organisation than Google Inc.
Although the Court’s reasoning in Tamiz provides general guidance, the position is still relatively unclear, particularly for organisations operating as group/page administrators. For instance, a company that actively moderates its Facebook group/page (for example, as an administrator) is more likely to be found to be a publisher quicker than one that does not because they are more likely to know, or ought reasonably to know, that a publication is defamatory.
Therefore, to reduce the risk of liability, it is advisable to err on the side of caution by regarding yourself as a ‘publisher’ (even though this may not be the case).
Best practice
We are increasingly being asked to advise clients in respect of comments made on their social media platforms and therefore to protect yourself from potential defamatory claims or adverse publicity, here are some points to remember:
There is, of course, a degree of proportionality to consider when administrating social media groups/pages and a ‘one-size-fits-all’ approach doesn’t apply. However, adopting some, or all, of the best practice set out above will assist to limit your risk of getting embroiled in a potential defamation action by no fault of your own.
Should you wish to discuss how you currently manage your social media presence or wish to discuss any reputation management issues, please contact Amy Callahan-Page.
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