Having an online presence is essential to running a business in 2020, and that includes active social media accounts and digital platforms.
However, it is important for all businesses to consider the very real legal risks they may be exposed to via their online presence, including new and evolving defamation laws.
With ongoing restrictions due to COVID-19, businesses may be experiencing increased traffic to their websites or social media channels.
And with that, comes the added risk of an increase in negative consumer comments.
So-called ‘keyboard warriors’ who use online platforms to express their often negative views can come at a costly price to businesses.
It is vital that businesses understand the lengthy and ever-changing legal risks of such comments.
As online and social media platforms become more entrenched in our everyday life, courts are seeing more cases as we navigate the new ‘technology norm’.
There are many questions being asked from a legal standpoint.
- Who is liable for what, online?
- What could land you in legal or financial hot water?
Unfortunately, we do not have all the answers at this stage, and while the laws are changing, they’re not keeping pace with changes in technology.
Defamation laws are currently in a period of reform and it is critical to be aware of what the changes currently mean for your business.
Defining an individual’s right to express opinion
The first stage of national defamation law reform has been released, and key changes include:
- The introduction of a ‘serious harm’ threshold, filtering out insignificant claims at an early-stage and protecting individuals and businesses against vexatious or overzealous complainants;
- Requiring an aggrieved person to issue a ‘concerns notice’, giving publishers, which can include businesses, an opportunity to ‘right the wrong’;
- Providing greater clarity on damages for non-economic loss, preventing excessive damages awards for these kinds of losses; and
- New rules to provide further protection to media outlets.
Liability when it comes to your social media page
Your business could now be responsible for third-party comments left on your social media channels.
While you may not be the ‘technical’ author of the comment, you could be considered the ‘publisher’ given your responsibility and ability to moderate comments.
Keyboard warriors may have their anonymity removed
Keyboard warriors hiding behind the screen may be on the run.
Individuals would need to consider the comments being posted to be factual and fair.
Individuals who perceived they have been defamed may be able to act, by either requesting the comment be removed or forcing the publisher to identify the source.
How to protect yourself from the costly risk of keyboard warriors?
Online channels are evolving to become a prominent way to conduct business, with consumers increasingly making a decision based on online reviews or social media content.
While it is not realistic to remove your online presence altogether, there are a few steps you can take to reduce your business’ risk.
- Ensure your business has internal social media and digital channel policies. Consideration should be given to page moderation (e.g. regularity of reviewing, automatic versus manual reviewing, high-risk words or phrases) and the steps to be taken when problematic material is identified. Importantly, the policy should also provide guidance to ensure your team is only removing the potentially defamatory comments (as opposed to negative comments about your business which, if removed, can amount to misleading or deceptive conduct).
- Keep your moderation policies refreshed. For example, if identified defamatory material relates to a ‘hot topic’, consider whether additional filters or keywords should be added to your moderation policy (either temporarily or on a longer-term basis).
- Provide regular training for existing and new team members to ensure they can identify potentially defamatory material, and to ensure the policy is clearly understood and consistently applied.
Digital and social media channels are here to stay, and the Australian defamation laws are slowly evolving to meet the rapid uptake of technology.
In the meantime, it is important that a business takes proactive steps as part of their risk mitigation strategy, to minimise the significant cost these platforms may pose.