Earlier this month, the Australian High Court – the equivalent of our Constitutional Court – ruled that newspapers and broadcasters may be responsible for comments on their Facebook pages posted by members of the public.

The question, says Webber Wentzel’s Dario Milo, is this: should companies that allow others to post content on their pages or platforms be legally responsible for that content?

He points out in this case, three media companies had published links on their Facebook pages to online articles about a former youth detention centre inmate.

Milo notes the articles were not problematic, but the media companies allowed readers to comment on the articles on their Facebook pages. And some of those comments were alleged to be defamatory.

While the plaintiff could have sued the members of the public who posted the content, he chose instead to sue the media companies.

Writing in the Sunday Times, Milo says the court had to decide whether the media companies could be regarded as publishers of the comments, even though they did not author or edit them.

Five judges said the media companies bore responsibility for the comments as publishers; two judges disagreed.

The reasoning of the majority relied heavily on the wide notion of ‘publication’ – adopted under the common law since a case dating back to 1928. The judges concluded that the acts of the media companies in ‘facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users’ made them publishers of those comments.

‘The judges thought a good analogy was with live television or talk radio: the broadcaster remained the publisher of the comments,’ says Milo.

Milo says the position in SA is unclear, as we have had no cases directly on this issue – possibly because so many of our media companies have discontinued online comments.

He says the innocent dissemination defence to defamation claims would provide a fair and reasonable response to a claim against a media company in this context – which would impose liability on the media company for others’ content if it acted negligently.

‘This means that if the media or social media company is made aware of a defamatory comment, and acts swiftly to remove it, it will not be liable for the posting on its page of the defamatory comment. A similar regime applies to print and electronic media who are members of the Press Council.’

Milo notes that even Facebook has realised that absolute immunity is not good for business and has set up its Facebook Oversight Board.

This, he says, highlights the need for some sort of credible alternative to state regulation for social media platforms.

‘Ultimately, for the platforms, self-regulation or co-regulation is likely to be far preferable from an accountability and freedom of expression perspective to state regulation.’

Full analysis in the Sunday Times