Rupert Murdoch Learns Why Intermediary Liability Protections Matter: Australia Says Media Orgs Can Be Sued Over Facebook Comments
from the it's-like-a-petry-dish-of-dumb-internet-policy dept
Ah, Australia. The country down under has always taken an upside down view on intermediary liability laws — quite quick to blame an intermediary for 3rd party content. Two years ago we wrote about a problematic ruling in Australia based on the idea that media companies (not just social media companies) could be held liable for comments on Facebook about their stories. Any common sense thinking would immediately reveal how ridiculous this is: how can a media company be held liable for someone else’s comments on someone else’s website? Well, the judge noted, because they could hack Facebook and insert a filter to block comments on their stories with the 100 most common English words, as a form of pre-vetting every comment. I’m not kidding:
The judge wrote that each company had the power to effectively delay reader comments on Facebook and monitor if they were defamatory before “releasing” them to the audience.
This was based on evidence from social media expert Ryan Shelley, who testified that although you can’t turn off comments on Facebook posts, you can deploy a “hack” to pre-moderate them.
Shelley’s hack involves putting 100 of the most commonly used words in the English language (“a”, “the”, etc) on a Facebook filter list, causing any comment containing those words to be automatically hidden from the public.
That ruling was appealed and Australia’s High Court has… incredibly (though not surprisingly, given the country’s other rulings on intermediary liability) upheld the ruling. Indeed, it points to earlier ridiculous rulings to say that, in Australia, it doesn’t matter if the publisher’s intention was not to publish anything defamatory. Instead, it says that if you are tangentially connected to a defamatory publication, you’re liable:
… a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.
This is, basically, the anti-230. It says if you have any role in publishing defamatory information, you can be treated as the publisher.
The media organizations involved in the lawsuit pointed out that there is an “innocent dissemination” defense (defence down under) for distributors (a form of distributor liability), but the court doesn’t think that really exists, and literally mocks the decisions where it was found to exist.
The defence cannot be said to be rooted in principle. In Thompson v Australian Capital Television Pty Ltd, its origins were described as “muddied”. The decision in Emmens v Pottle has been described as more pragmatic than principled. Lord Esher appears to have been motivated by a concern that the common law would appear to be unjust and unreasonable if some such accommodation was not made by the courts. In Thompson, it was said that his Lordship “rationalised rather than explained the decision”.
And thus the end result is liability for absolutely everyone.
The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.
A separate concurrence was even more ridiculous:
Each appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. Each appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option (in addition to “Like” or “Share”) to “Comment” on the content by posting a comment which (if not “filtered” so as to be automatically “hidden” if it contained “moderated words”) was automatically accessible in a comprehensible form by other Facebook users.
The whole thing just seems fundamentally ridiculous — and a huge attack on speech. However, it’s also a very clear lesson in why intermediary liability protections like Section 230 are so important. As Australian law professor David Rolph wrote in response to the ruling, there’s a high likelihood that media organizations will end up shutting down their Facebook pages, and cutting off user comments because of this:
Today?s ruling may inspire many social media account managers to make greater use of these features and tightly restrict comments ? or, where possible, switch them off completely.
In other words — as we’ve said repeatedly over the years — Section 230 protects free speech by making it possible for websites to host user comments in the first place. Without those protections, you get fewer places to speak. Unfortunately, this ruling fits with the trend we’ve seen elsewhere, such as the Defli decision in the European Court of Human Rights that held a publication liable for user comments.
Of course, the real irony here is that Rupert Murdoch still owns a ton of news organizations in Australia impacted by this decision. Indeed, the person who originally brought the lawsuit wants to sue a bunch of media companies for (allegedly) defamatory comments on Facebook… including the Murdoch-owned Sky News Australia.
And yet, over the last few years, Rupert Murdoch has been one of the most aggressive anti-Section 230 advocates around, and has had Fox News and the WSJ editorial page run all sorts of attacks on Section 230, and pushed for the government to undermine those protections. Yet now, down in his home country, he may face massive legal liability under the kind of regime he’s pushing for in the US.
There have been so many debates about intermediary liability and Section 230, but now Australia is really turning into a petri dish example of what happens when you have the exact opposite views on intermediary liability.