Despite all the arguments made and support garnered for a constitutional amendment that would guarantee our freedom of speech and despite the experience in the United States of Big Tech censorship, Scott Morrison’s Attorney General, Christian Porter, has announced that he intends to make social media tech companies subject to defamation law; just like other publishers.
I suppose it comes from living in Western Australia, where the sun is two hours late every morning that it breeds this love of the dark, a love not unlike the love that cannot speak its name, a love that survives by excluding the light of reason and speech. We should try to shed a little light on his issues for the benefit of his project.
What the Attorney General’s legislation will mean, is that instead of a constitution that encourages people to tell the truth about the government, about politicians, and about how practices and policies might actually harm the nation, his law will give Google, Facebook, Twitter and so on — Big Tech — a legal excuse to remove, edit or delete speech, even truthful speech, that does not accord with Big Tech’s opinion of what is defamatory.
There is a political context in which this announcement has to be viewed which is all-important if the dangers of his plan are to be understood. That context is the fight in the United States that conservative opinion is having with Big Tech.
Thanks to the First Amendment of the US constitution, to win a defamation lawsuit in the USA, a plaintiff must prove that the defendant published (or broadcast), negligently, with actual malice, a false statement of fact about the plaintiff that caused material harm to him/her/it/they. As a result, opinion is, generally speaking, not considered defamatory.
However, the fight with social media in the USA, where free speech is constitutionally guaranteed, has not prevented Big Tech from using a number of different means of ensuring that a Big Tech preferred view predominates. These means include: restricting political speech, of banning conservative commentators, of censoring conservative comment, or of deleting anti-abortion videos.
These means of censoring other’s opinions are largely arbitrary, despite the claim by Big Tech that it has electronic formulae or algorithms which carry out the task. As everyone knows, the basic rule of programming is GIGO, garbage in, garbage out. If the algorithms are written to identify conservative opinions, that is what the platform will call neutral.
Christian Porter’s proposed law will hand Big Tech a legal excuse for censoring, deleting or banning what it does not like, simply by declaring an opinion as possibly defamatory. In other words, his proposal will push human speech back into the darkened recesses of the cupboard from which the alphabet people emerged a few years back and he has handed Big Tech the screws with which to ensure that the cupboard remains dark and airless.
On the other hand, those same laws will have no effect on the mainstream media, CNN, MSNBC, NBC, NPR, ABC, News, Fox, Amazon, Apple, VOX, Hill, the New York Times and the rest which stream live into your living room or study from a source in the free speech sanctuary of the United States.
The Attorney’s idea is actually the reverse of what conservatives are trying to achieve in the United States. In the US, Big Tech social media platforms are, by s. 230 of the Communications Decency Act, not responsible as publishers of their users’ comments. This has permitted Big Tech to exercise its own left-wing judgment of what it permits to be said on its platforms. Proposed amendments to the CDA, however, would see that protection removed unless Big Tech could prove its moderation of comments was politically neutral.
While he would expose the Big Tech platforms to defamation lawsuits in the name of equality of publishers, Porter’s law, as explained would actually facilitate even more biased censorship of conservative opinions in this country. It is possible to agree that Big Tech and traditional media face the same defamation laws, but only if free speech is protected by the constitution; as it is in the USA.
If it is good enough for the Attorney to enjoy that right inside that monument to poor-taste architecture, Parliament House, to speak freely, it is good enough in the rest of Australia. The only reason Christian Porter enjoys that right is because men like Edmund Barton ensured it was in the constitution that the people ratified in 1899.
The AG could, of course, address the issue in a Spectator Australia article. That would permit others to exercise their free speech as well.
David Long is a retired solicitor and economist.
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