7 Legal Essentials for Business Online: Part 3 – Online comments

For some reason a lot of people say things on social media and blog posts that they would never say in a letter to the editor in the traditional newspaper format. It’s an interesting phenomenon and one that will no doubt fuel all sorts of legal disputes for years to come.  With the fast pace of online interactions you might forget that your comments remain accessible online indefinitely for those who want to look, and if legal proceedings are involved, someone will be looking!

Did you hear the one about the woman in Western Australia who posted some unflattering comments about her ex-husband on Facebook? The comments were posted in December 2012 and taken down in January 2013. In the meantime a bunch of mutual acquaintances, including the man’s brother, saw the post. Court proceedings were filed and it wasn’t heard by a judge until 2015. Don’t assume that because you’ve forgotten about it, everyone else has too! The Judge decided in favour of the ex-husband and the woman was ordered to pay $12,500 in compensation as well as legal costs.

In that case it was very easy to identify the offender, and you might think you are safe because whatever you posted was under an alias or made up name like ‘ChrisMastry99’.  Using a made up name doesn’t protect you. The website providing the forum, including Facebook, can be issued a subpoena or non-party discovery notice requiring them to disclose the identity of the person behind the alias. This happened early in 2015 when the producers of ‘Dallas Buyers Club’ got permission from the Court to have access to the names and contact details for every account identified as downloading the movie illegally via torrent. You will be found.

If you’re allowing people to make comments on your online platform, whether that is a blog, forum, closed or open group, you could be also be found responsible for what they say. Your level of responsibility depends on the law applicable to your website, where the participants are and what your ‘rules of engagement’ include.  If you have no rules (terms and conditions), you have no control!

The key to protecting your business is to have terms and conditions that let the user know they are responsible for any repercussions arising from what they say, and that allow you to take down posts that you consider risky. You need an objective procedure to deal with complaints – you can get upset people and prompt unreasonable behaviour (like claims of discrimination) if you take down comments without justification.  So have a process that:

  • allows you to get feedback from the person who makes the post
  • doesn’t oblige you to investigate
  • does allow you to review the information you get from both parties and make a call
  • allows you to exercise your sole discretion
  • gives a reasonable explanation for removing the post

A reasonable explanation can be ‘contradictory information was received from both parties without any objective evidence upon which to base an opinion one way or the other’. This explanation can justify either of leaving up the post, or taking it down.

Contact the author if you need assistance in preparing terms and conditions or creating an easy and reliable procedure to follow in the event of a dispute. In the meantime, be careful what you say online and what comments you let appear on your website!


About the author

Jeanette Jifkins is the founder and Principal of Onyx Online Law, an Australian based law firm with the focus of supporting businesses with an online presence.