Author: Bellina Barrow, Attorney-at-Law
Date: 13 August 2025
Introduction
Social media platforms have transformed global communication, allowing individuals and businesses to share ideas and content instantaneously and for other social media users to engage with this content in like manner. However, this unprecedented level of connectivity also presents serious legal challenges. Certain statements can cause irreparable harm, and interestingly enough, back in the 1960s, international courts would have likened libel to homicide in the case of R. v. Paine (1696) 5 Mod. 163.
In that case it was held that: “If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man’s reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.”
The Fairfax Case: Redefining Digital Liability
Social media defamation is an ongoing legal concern, and after the Australian case of Fairfax Media Publications, Nationwide News Pty Limited, Australian News Channel Pty Ltd v Voller [2020] NSWCA 102, social media users were urged to rethink their approach to digital liability and accountability.
The Fairfax case involved the contention by the respondent that after the applicants had posted news stories concerning the incarceration of the respondent, Dylan Voller, in a juvenile justice detention centre on Facebook, several third-party Facebook users had replied to the posts with comments that were critical of him. As such, the respondent contended that the applicants were liable for defamation and that they were liable as publishers of the defamatory third-party comments under their posts.
The Court dismissed the applicants’ appeal and held inter alia that the media companies were responsible for the use of their Facebook pages, and the publication of comments thereon, including the defamatory comments.
Traditionally, defamation law imposes liability on the original author of the content. However, the circumstances of the Fairfax case allowed this to be expanded to include those who facilitate, enable, or fail to moderate harmful comments. The spill-on effect of this judgment was that there was widespread debate about online liability, which prompted organizations, influencers, and professionals to rethink how they managed public discourse on their social media pages; as they could be found to be legally responsible for defamatory comments posted under their posts even if those comments came from third parties.
The Fairfax decision prompted social media users, businesses, and media outlets to proactively manage and moderate user interactions to avoid defamation claims, and/or minimize digital liability. Additionally, as a result of moderation or resorting to disabling comments, this would inevitably impact the social media marketing strategies of media outlets, businesses, organizations, influencers, and professionals.
T&T’s Legal Framework for Online Defamation
The Trinidad & Tobago Libel and Defamation Act Chap 11:16 (as amended) provides the legal foundation for this area of law.
T&T’s common law also assists in strengthening digital accountability, and there has been an inclination of the T&T Courts to be guided by Australian jurisprudence to adjudicate in this area. For example, this was seen in the case of CV2014-01949 Therese Ho v Lendl Simmons, where the Claimant brought a claim for damages after the Defendant had shared confidential, nude photographs as well as other intimate photographs between herself and the Defendant on social media, following the termination of their dating relationship.
In determining the case, the learned Justice Seepersad was guided by the cases of Giller v Procopets [2004] VSC 113 from the Supreme Court of Victoria and Wilson v Ferguson (2015) WASC 15 from the Supreme Court of Western Australia. Seepersad J stated that:
“Given the rapid pace with which the face and fabric of the society has changed and cognizant of the infinite reach of social media, it cannot be denied that the privacy of the person is under attack and there is a dire need for the enactment of a statute to afford protection for citizens’ privacy…
The instant case reinforces this Court’s belief that it cannot confine itself to a myopic view of the law, and in the absence of legislative protection, the common law concept of breach of confidence has to be moulded so as to address modern societal demands. The law has to be dynamic and has to develop in such a way to ensure that it remains relevant, and it must be recognised that there is an obligation of conscience…”
Implications after Fairfax
The Fairfax case can undoubtedly add further jurisprudential value to Trinidad & Tobago online defamation cases, as it can provide additional useful dimensions for judicial consideration in cases with similar facts to Fairfax.
About social media users, there are implications due to the shift in accountability that has arisen after this case. A few of these implications are:
Increased Legal Risks for Social Media Page Owners:
- Content creators, journalists, influencers, and businesses should monitor and regulate comments under their posts.
- Failure to remove or moderate defamatory material could result in legal action, even if page owners did not write the comments for themselves.
A Rise in Comment Disabling & Moderation:
- Many organisations have resorted to disabling comments to limit liability exposure.
- Social media platforms like Facebook introduced the “Turn Off Comments” feature for different post types on business pages, groups, live videos, and personal profiles. This marked a shift toward greater content moderation.
Adapting in light of Fairfax
As courts worldwide recognise the far-reaching and sometimes damaging impact of social media, it is no longer enough to just rely on outdated legal defences. Social media users need to safeguard themselves by balancing online interactions with their social media communities and mitigating the risks of exposure to digital liability. Proactive digital accountability is essential, and those who adapt will stay ahead.
With social media reshaping digital liability, there is a greater burden on users to monitor and regulate the discourse on their social media pages. By implementing robust moderation strategies, businesses and individuals can mitigate against reputational damage, financial losses, and legal repercussions.