The pace of technological change is relentless. Twitter, facebook and blogs are common place. Any health practitioner running a small business or within a large medical organisation should be aware of the value of social media which can lead to a variety of networking and marketing opportunities. What must also be understood however is that there is now the potential for individuals and organisations to be responsible, knowingly or unknowingly, for the publication of defamatory, misleading, deceptive or other adverse comments to millions of people in many different legal jurisdictions.
The law regulating social media is constantly evolving and there are few precedents in Australia. What is not in dispute is that if an individual or organisation posts content on its own website, facebook page, twitter feed or blog then that individual or organisation is responsible for the publication of that content and may be prosecuted in the criminal courts or sued in the civil courts. In the United States the celebrity, Courtney Love, was sued for tweeting defamatory remarks via her twitter account. In the United Kingdom, Paul Chambers, was convicted for his ‘joke’ tweet which threatened to blow up an airport when his plane was delayed. What is less clear is who is responsible for third party comments published on a website, blog, facebook page or Twitter account. Even if an individual or organisation did not provide the comments or post the comments to their website, facebook page, blog or Twitter account is it still possible for that individual or organisation to be held responsible?
Earlier this year in a copyright case the Full Court of the Federal Court of Australia held that websites and internet service providers are not responsible for what their users do with the services provided to them (Roadshow Films Pty Ltd v iiNet Limited). Around the same time however a single Judge of the Federal Court of Australia also reviewed this issue in the case of Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (formerly Advanced Allergy Elimination Pty Limited). The Federal Court had to determine if Allergy Pathway Pty Ltd had published third party testimonials on its Facebook and Twitter pages in contravention of previous undertakings that it would not publish misleading and deceptive statements about its ability to identify, treat and cure allergies. The company had not written the testimonials nor posted them. It did however become aware of them and did not take steps to have them removed.
The Federal Court concluded that:
‘… merely facilitating the commission of a wrong will not result in liability but it is another thing to procure or conspire in the commission of the wrong, in which case liability may be imposed, particularly if the procurer is aware of the material being published and has accepted general responsibility for its publication.’
It was held that the company had accepted responsibility and become the ‘publisher’.
Whilst the facts of this case relate to undertakings made to a regulatory body, the Australian Courts may well apply the same reasoning to determine the ‘publisher’ in a wide variety of other cases. Further, the High Court of Australia has determined that defamatory material published online around the world will be actionable in Australia if it is read or downloaded in that jurisdiction (Dow Jones & Co Inc v Gutnik).
The starting position is that if it is possible for an individual or organisation to monitor or delete content on a website, facebook page or blog then it must ensure that the web site, facebook page or blog is carefully monitored and any problematic posts are deleted (or appropriately dealt with) as soon as they come to the attention of the individual or organisation.
Difficulties may arise with a Twitter account. Twitter is a real time information network that allows an individual or organisation to send a public message to anyone who follows the Twitter account. This message can be viewed by anyone in the world. If a tweet is posted by a third party to, or in response to, the Twitter account of an individual or organisation and that tweet contains adverse comments then the individual or organisation cannot remove it.
It is not inconceivable that a third party tweet may result in a claim that an individual or organisation is liable for the publication of comments that may be misleading or deceptive, defamatory or even discriminatory. To prevent this occurring there should be careful monitoring of a Twitter feed. If an entry is made by a third party which is cause for concern then immediate action should be taken to remove the content and/or qualify it (if it cannot be removed) so the individual or organisation will not be considered to have also published that information. It may well be that the Courts are likely to expect immediate action noting that Twitter is a real time information network.
Whilst taking advantage of the enormous opportunities created by social media therefore it is important that health practitioner and medical organisations do not overlook the challenges it brings and the potential for significant liability if these challenges are not addressed.
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Karen Keogh
Special Counsel
Phone: 61 2 9228 9397
Karen_Keogh@tresscox.com.au
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