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Are you turning comments off to avoid defamation?

In the eyes of the law, your organisation is liable for defamatory posts on your social media, even if you didn’t make them. How can you manage this risk and still connect with your customers?

If you’ve done your risk training recently, you’ll know that the way we respond to risk will be one or more of mitigation, transfer, avoidance or acceptance.

How do risk management strategies apply to social media teams?

For social media teams, mitigation might involve monitoring, moderation or blocking. Transfer normally means insurance; your organisation’s business insurance may cover these kinds of risks. If you’re not sure, it might be a good time to check! Avoidance could mean shutting down your social media or turning comments off. Acceptance is when your leadership team has decided the risk is so unlikely to occur, or will have such a small impact, that there is no need to take any action.

Your organisation’s communications team probably employs a risk management strategy for social media that includes a mix of these.

Defamation is a real risk on social media

The risks around social media can be serious. That was thrown into sharp relief in September 2021. The High Court of Australia once again dismissed an appeal related to the original June 2019 Supreme Court ruling that the owners of Facebook pages are responsible for the comments on their page.

The 2019 ruling was about allegedly defamatory comments made on the Facebook page of a news organisation. A number of appeals later, the ruling has been upheld and organisations have begun to understand that the application of the ruling is broader than just Facebook. It covers other social media too, and even text messages.

There was quite a bit of media attention and legal commentary around the September 2021 ruling. Do a quick search on Google using keywords like ‘defamation’ and ‘social media’ and ‘australia’ and you’ll see results pages of news articles responding to the High Court ruling alongside blog posts, articles and advice on law form websites.

At the heart of the decision is the idea that by providing a channel for publication of these comments, organisations are ‘publishers’. Being publishers, they carry responsibility because they are providing the vehicle for allowing the defamatory comments to reach an audience.

Does turning comments off remove risk?

Some legal firms are advising organisations to manage this risk by turning comments off. As a risk management strategy, this falls squarely into the camp of ‘avoidance’. The trouble is, that social media is a tool that many organisations have adopted because they want to create a connection with their customers. Effective connection means conversation and relationship building – not one way broadcast.

You might avoid one type of risk by turning comments off. Unfortunately this creates another type of risk – you’re likely to see reduced engagement, impact and effectiveness with your customers and community. Your organisation may not wish to take on that risk.

Monitor, capture and moderate with a social media archive

Mitigation can be a very effective way for organisations to manage the risk of defamation lawsuits. Mitigation is about prevention. In the context of social media, it might mean monitoring and moderating social media channels using tools like Facebook’s inbuilt profanity filters, and third party tools like Brolly that send you alerts when certain keywords or phrases appear in your Facebook pages, Twitter feeds, Instagram, YouTube comments and LinkedIn.

Likelihood and impact

Before making a decision about how you’re going to manage the risks that go with having meaningful conversations with your customers, consider how likely it is that defamatory comments will be posted on your channels. Check your historical data to see if this is something that happens frequently, rarely – or maybe not at all!

It’s also a good idea to work with the broader organisation about the impact that these kinds of comments might have, if they appear on your social media and remain unmoderated.

If you’re lucky enough to have a risk team in your organisation, they’ll be experts at this kind of assessment. A risk that is likely to happen but has a small impact could be a risk that an organisation chooses to accept. On the other side of the coin, they might put mitigation strategies in place to manage a risk that has a low chance of happening but will have a big impact on your organisation’s reputation or legal budget.

How to manage risk with a Brolly social media archive

A social media archive is an essential tool for organisations that take risk and compliance seriously. Your Brolly account captures all your posts and comments, as well as those made on your channels by third parties. Brolly also captures actions like hides, deletes and edits so if you ever find yourself facing allegations related to defamation, you have a true record of what was posted and the actions you took to manage the content. Brolly also has alerts, so you don’t have to spend all your time watching your social media channels for the kinds of keywords that flag possible defamatory content. Our alert system sends you an email any time the keywords you’ve set up in Brolly appear in your channels, and gives you a link to go straight to the post and moderate it.

Here at Brolly, we’re not legal experts, and we have only a layperson’s understanding of defamation laws. What we do know is social media archiving – and the peace of mind it brings to our customers, who know that they have complete transparency about their activity and the activity of others on their social media.

Find out how Brolly
can help you manage risk!

Book a 20 minute call to learn how Brolly provides social media archiving that protects your records, ensures you’re compliant with recordkeeping and data privacy laws and can save your social media and record management teams hours of effort each week.

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