NSW Facebook Groups - Legal responsibility?

[AnneM]

As an administrator or owner of a public Facebook group (for example a buy and sell group), do I have any legal responsibility with regard to having knowledge that a member is selling an item that doesn't exist or is illegally obtained and then put up for sale?

 

[Sarah J]

Hi AnneM,

Internet law is still a developing area in Australia and as such, there is much uncertainty about internet liability, especially in relation to the growing prevalence of social media and social market places. Further, there are jurisdictional issues as to which country's laws apply (e.g. America's or Australia's?) Much of it comes from academic debates, analogies with exciting rules and passing comments from judges (persuasive at best).

Currently, I do not believe group admins would be responsible for the actions of their group members. There may be a responsibility to take reasonable measures to identify, flag, delete or block users who defame or are known to sell illegal/improper products. However, beyond this, there wouldn't be much more liability. You can compare Facebook group admin to the host of Gumtree or other private websites.

The best someone could argue is that you were negligent in allowing a user to induce purchases of illegal/improper products. However, if you:

• Take reasonable measure to supervise the discussion on your website;
• Add a disclaimer in the description page;
• Delete or flag or block users/posts that breach group rules;
• Any other measures you can think of to prevent scams/illegal activity

You should be able to satisfy to courts that you were not negligent. This case: Caltex Refineries v Stavar (2009) 75 NSWLR 649 may be of assistance as to the approach judges in NSW take toward Facebook group admin's liability.

 

[AnneM]

Thank for the response. I am aware of a

Hi AnneM,

Internet law is still a developing area in Australia and as such, there is much uncertainty about internet liability, especially in relation to the growing prevalence of social media and social market places. Further, there are jurisdictional issues as to which country's laws apply (e.g. America's or Australia's?) Much of it comes from academic debates, analogies with exciting rules and passing comments from judges (persuasive at best).

Currently, I do not believe group admins would be responsible for the actions of their group members. There may be a responsibility to take reasonable measures to identify, flag, delete or block users who defame or are known to sell illegal/improper products. However, beyond this, there wouldn't be much more liability. You can compare Facebook group admin to the host of Gumtree or other private websites.

The best someone could argue is that you were negligent in allowing a user to induce purchases of illegal/improper products. However, if you:

• Take reasonable measure to supervise the discussion on your website;
• Add a disclaimer in the description page;
• Delete or flag or block users/posts that breach group rules;
• Any other measures you can think of to prevent scams/illegal activity

You should be able to satisfy to courts that you were not negligent. This case: Caltex Refineries v Stavar (2009) 75 NSWLR 649 may be of assistance as to the approach judges in NSW take toward Facebook group admin's liability.

Thanks. I am aware of a forum owner who was the subject of legal action because he didn't stop another person being defamed oh his public forum. The incident that occurred today, where an admin of a site was warned of a fake ID made me think of liability on my own site, and recall the forum owner's story I mentioned above.

The admin of the site I referred to has declared they will not take action until the person acts even though the same fake ID has been used to join but they haven't posted.

I was concerned because they have been notified and provided evidence of the same profile elsewhere selling fake items, that they may be held liable because they haven't taken action. Evidence was provided to them and it was suggested they remove the member as they may not catch them in time to prevent them from illegally taking money on a fake item.

 

[Sophea]

I agree with Sarah. Yes defamation is an area where forum hosts have been liable for publication of a defamatory statement - although they are not the ones making the statement they are responsible for the medium on which it is pulished - like the publisher of a newspaper - they may not write it but they propagate it.

With respect to fraud and illegal products - as sarah said - the best thing you can do is put in place forum rules which are displayed on the site and users agree to before being allowed to participate, enforce those rules and have a clearly displayed disclaimer.