The current defamation law provides that anyone contributing to the publication of a defamatory statement holds joint responsibility for it. However, there is a defence to this if it can be shown that the party has unwittingly and innocently disseminate the alleged defamatory material.
Under the Defamation Act 1996, there is a defence to organisations which own websites over which they have editorial control (e.g. Facebook). If someone else posts a defamatory comment on their website, they can defend any defamation action if they can show that they:
· were not the author, editor or publisher of the statement complained of;
· they took reasonable care in relation to the defamatory statement’s publication; and
· they did not know, and had no reason to believe, that what they did caused or contributed to the publication of the defamatory statement.
As you can imagine it is almost impossible to ensure that all of the millions of FB users never publish a defamatory statement and it would be very easy for anyone to do this. It is unreasonable to expect FB to become liable for every such statement made. As long as they have a policy prohibiting users to make such comments, which they do, that is a good start to argue that they have no responsibility for rogue actions by their users. Similarly, if the comments were clearly reported as violating their policies, but they took no action to remove them, that could increase any potential liability. However, overall, it is relatively difficult to show they were fully liable alongside the publisher of the comments.
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