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Social Networking Responsibilities – You Could be Held Liable for What Others Say

Rob Bradley

The responsibilities for Individuals and Companies who host and maintain web pages, blogs and other internet publications like Facebook and Twitter has been expressly brought into line with other forms of physical publication media after the recent Judgement handed down by the Federal Court of Australia in ACCC v Allergy Pathway Pty Ltd FCA (No.2) 2011, in stark contrast to the US approach which offers a high level of immunity Shiamili v. The Real Estate Group of New York.

This case is based on section 230 of the US Federal Communications Decency Act which has been found to give website operators immunity from action. The Austrlian judgement however goes in the other direction meaning that people can in certain circumstances be held liable for what third parties say on their internet publications.

Circumstances

Allergy Pathway was an alternative allergy treatment service that provided information about its services partially via posts on its Website, Facebook and Twitter. In early 2009 the ACC brought a successful action against Allergy Pathway for breaches of the Trade Practices Act 1974.  

In this more recent action the ACCC successfully alleged that Allergy pathway had breached undertakings given to the court following the first action in 2009. Chief among the issues contested was that Allergy Pathways should be held liable for testimonials written by clients and posted by clients on Allergy Pathways’ Facebook “Wall”. 

Determination Of the Court

First it is of importance to note that Allergy Pathway had made no positive undertakings post the 2009 judgement to monitor the content posted by third parties on its publications. Rather the ACCC successfully contended that if a third party posts on a Facebook wall or Twitter page a statement which, if placed there by the person would render it liable, once the person is aware of the statement having being placed on their Facebook or Twitter page and does not remove it, then they are liable for the third party’s statement.

Conclusion

Failing the future intervention of the Australian Legislature, it is now the case that if you controll an internet publication you must be vigilant in ensuring that what third parties post on your publication is not libellous, misleading or deceptive or otherwise actionable.

Of note is that the Australian Courts have not had cause to consider the level of knowledge that is required, since in this case actual knowledge was conceded. However if Bryne v Deane [1937} KB 818 (a case referred to in the judgement) is to be followed then it is likely that inferred knowledge would be sufficient.