Many businesses and community organisations run a Facebook page, group, or similar social media presence without realising that doing so can carry legal responsibilities. Public engagement brings clear commercial benefits, but it can also expose the page administrator to legal risk for content posted by other people. Understanding where that risk sits, and how to manage it, is an important part of operating online with confidence.

Why third-party comments are a legal risk

The rapid rise of social media over the last two decades has brought issues such as online bullying, and the consequences of other online conduct, into sharper focus, and the law has had to respond. In Australia, the law in this area continues to evolve.

At present, administrators of Facebook pages, groups, and other interactive social media pages should treat third-party comments as a legal risk, rather than simply as user-generated material. The central principle is that a page administrator may be a “publisher” of comments posted by others, where the administrator creates or operates the page, posts content, and in doing so facilitates or encourages public comment.

Defamation liability for page administrators

The High Court in Fairfax Media Publications Pty Ltd v Voller confirmed that administrators of public Facebook pages can be publishers of third-party comments for defamation purposes, even if they did not write the comments and did not know the comments were defamatory when they were posted. The majority found that operating a public page, and posting material that allowed comments, was sufficient participation in communicating those comments.

This principle is not limited to media companies. It is relevant to businesses, organisations, community pages, and other public social media forums, and potentially to platforms beyond Facebook where public comments are enabled. A business may therefore be sued if a third party posts a defamatory comment about an individual or a corporation on the business’s page.

A claimant must still establish the usual elements of defamation. These include publication, identification, defamatory meaning, and, under the reformed uniform defamation laws, serious harm. In NSW, a prospective plaintiff must generally issue a concerns notice before commencing proceedings, which gives the publisher an opportunity to make amends.

Defences and recent reforms

Being a “publisher” does not automatically mean a person is liable. Defences may be available depending on the facts, including innocent dissemination, truth, honest opinion, privilege, or public interest.

Since 1 July 2024, NSW and several other jurisdictions have introduced further digital intermediary reforms. These may assist some administrators or online forum operators in defined circumstances, particularly where accessible complaint-handling processes and prompt removal or access-prevention steps are in place. However, these protections do not remove the practical need for active moderation.

Other legal risks

Social media administrators may also face exposure under other laws. For example, misleading customer comments or testimonials left on a business page may create risk under the Australian Consumer Law if the business becomes aware of them and leaves them online. Offensive, discriminatory, vilifying, threatening, or unlawful material may also attract regulatory, employment, platform, or criminal consequences, depending on the content.

Many of these behaviours are not unique to social media or the internet. The same conduct can, and does, occur just as frequently in everyday life. What is changing is that the law is adapting to remove the anonymity that the internet has historically made possible.

Practical steps for administrators

In practical terms, a social media page cannot be treated as “set and forget”. Administrators should consider the following measures:

• monitor comments regularly;
• remove, hide, or restrict defamatory, misleading, or unlawful comments promptly;
• disable comments on high-risk posts where appropriate;
• maintain clear house rules and moderation policies;
• train staff who have page access;
• preserve records of complaints, moderation decisions, and removals.

Businesses obtain a genuine commercial benefit from public engagement, and they may also bear legal consequences for the content they facilitate. A considered approach to moderation protects both your audience and your organisation.

Getting advice for your situation

The law affecting social media administrators continues to develop, and the right response will depend on the nature of your page, your audience, and the content involved. If you are unsure about your responsibilities, or you are dealing with a comment that may be defamatory, misleading, or otherwise unlawful, it is worth obtaining tailored advice early.

Contact our experienced team to discuss your situation.