It’s not very often a news item pokes its head above the laughable parody of our national conversation. Get your duct-tape ready; on Wednesday the High Court issued a ruling that changes everything.
The most illustrious minds in Australia have decided to make social media account holders legally responsible for third party comments left on their pages and posts. To quote the court, an entity with an account like Facebook will be ‘liable for adverse material in the comments sections’.
To be clear, you – yes YOU – will be held accountable for the indecipherable malicious rambling of anonymous trolls instead of police tracking down the basement-dwellers behind the computer.
The court’s original decision was so ridiculous that most people assumed the whole nonsense would be overturned through the appeals process. On Wednesday, the appeal was dismissed.
The repercussions of this ruling are so immense and far-reaching that instead of mass hysteria, it’s been met with apathy.
It is difficult to tell if people are simply unaware of what’s happened, or firmly clinging to denial.
The original case involved a matter brought by Dylan Voller – a former Don Dale Youth Detention Centre inmate – against News Corp Australia, Fairfax Media, and Nationwide. Voller accused the media collective of defaming him via comments posted by trolls on their respective Facebook pages.
At the time, Facebook did not grant account holders any ability to disable or delete malicious comments. In other words, the media companies involved had zero control over the defamatory comments. The only entity with oversight during the incident was Facebook – host of both the abusive accounts and the defamatory comments.
Social media is a business model with a curious legal structure.
Silicon Valley companies like Facebook are not publishers, they are platforms. The idea is that Facebook plays the role of a passive host to third party content which it monetises. It does not author, approve, or request content from these users.
All online social media platforms operate this way, including those old chat forums most of us remember from the days when the internet had ethical boundaries. With nine billion people on the planet potentially posting content continuously, the internet couldn’t host the free exchange of ideas if its social media websites had to act as overbearing parents.
The notion of a supreme digital editor for social discourse is as impractical as it is terrifying.
To deal with this situation, America created Section 230 within the US Communications and Decency Act to grant platforms immunity from legal responsibility on third party content. This covers everything from friends arguing online to terror cells using Facebook to coordinate. In return for an enviable legal nirvana, platforms are ordered to refrain from engaging in publishing privilege except in the discretionary removal of harmful and offensive content outlined in the Good Samaritan Clause. Cleaning up content is optional, not a requirement of law.
While you often hear, ‘private companies can do what they like’ in defence of Facebook’s notorious editorial behaviour – this is not true for platforms. By definition, they cannot interfere.
The rise of social media has happened so quickly that judges do not understand the implications of their rulings. This becomes obvious when viewing the analogies invented to help them cope.
For example, one judge compared the situation to the graffiting of office buildings in public spaces. Building owners are required to remove content sprayed, stuck, and drawn on their walls which might cause public harm. If they fail to do this, they become the responsible party. By extension, reasoned the judge, digital media should be governed by the same laws as physical media and assume responsibility for anything ‘published’ on their pages.
This is not an accurate comparison.
For a start, news media companies do not own the building – Facebook does. For that logic to work, the judge would have to place responsibility on social media companies, but they can’t do this because of their Section 230immunity.
Those ‘harmed’ want someone to blame. Instead of chasing down the individuals responsible for posting the content, the court has decided to punish the entirely innocent news company caught in the middle.
If we update the building comparison, news media is the tenant of a building owned by Facebook. The terms of their tenancy mean they cannot touch the exterior of the building. Every few minutes, several thousand balaclava-clad vandals walk along its exterior walls leaving defamatory comments about hundreds of different people. News media complains to Facebook, but Facebook’s a terrible landlord and decides to randomly delete some of their genuine customers instead and then evicts the news company for a week without notice.
The problem boils down to the court being unable to decide if social media constitutes ‘public media’ or ‘private media’. Of course, it’s neither. Social media is an entirely new class of media. It operates in a unique communication environment that cannot be shoved into old laws designed to handle telephones and newspapers.
This ruling would be bad enough if it were contained to media organisations and genuine publishers. Instead, the court failed to make the distinction, leaving the ruling open to literally everyone.
Any Australian with a private account, community group, business, publication, or news account on social media can now be dragged off to court. Those who grasp the enormity of the situation have called for an urgent reform of Australia’s defamation laws.
“This highlights the need for urgent legislative reform, and I call on Australia’s attorneys-general to address this anomaly and bring Australian law into line with comparable Western democracies,” said Michael Miller, News Corp Australasia Executive Chairman.
The court has made it legal to punish innocent people for the anonymous crimes of others.
This whole thing sounds apocalyptic, but I doubt the social media world will end immediately.
We can expect media outlets to lock their comment sections, effectively severing the connection to their audience. This is harmful to the quality of news in Australia. If the public cannot issue feedback, media becomes an impenetrable, unquestionable wall. How will journalists hunt down public interest stories if people are too afraid to post them? No one bothered to ask.
Eventually, someone is bound to try their luck suing an individual, business, or community club. These people cannot afford litigation, so their comment sections will go causing the social media model to collapse under itself.
Expecting a media empire to moderate comments is one thing, but throwing that onto individuals is laughable.
I am by no means a public figure, yet I average 4,000 comments on Twitter a day. Is it reasonable for a court to hold me responsible for content posted by strangers in a different country?
Scott Morrison says that he doesn’t like echo chambers online. This is how you create echo chambers.
The social challenges Australia faces right now are huge. Free and frank discussion is arguably the most important tool we have as a Western society to resolve these issues without violence. This is doubly true when the government has locked people in their homes, isolated them from their friends, and forbidden any form of political protest.
If this ruling holds, we will have lost our primary form of communication – not to mention endangering ordinary people by turning social media into a hunting ground for vexatious litigants.
There is nothing to stop an individual with a grudge recruiting trolls to post defamatory comments on another account in hope of triggering a ruinous court case. Social media has no shortage of hurt feelings, fragile egos, short tempers, and mal-intent.
Two of the seven judges involved attempted to offer a nuanced approach by suggesting that individuals be given time to remove offensive content once notified of it. Even this underlines their inexperience in matters regarding the digital world.
The only entities responsible for content online are the billion-dollar social media companies. They host accounts, they allow comments to be published, they write the safety guidelines, they enforce community standards, they receive the complaints, and they suspend and remove content.
For all intents and purposes, companies like Facebook already assume responsibility – but not liability – for trolls.
If someone wants to pursue a defamatory comment, the only reasonable answer is to pressure Facebook into sharing the digital information of that user with police.
We do not want to end up with a situation where social media companies empower news companies to moderate the public forum. It won’t take long for Australia to end up in a China-style situation where only ‘approved’ and ‘safe’ thought is allowed in print.
This is a tricky one for Silicon Valley.
Whether they do nothing or hand over editing power, their business model is wrecked. People go to social media for the flurry and noise of outrage – not to stare at a beige wall.
If Facebook chooses to fight the Australian courts over this catastrophic blow to their business, it will be forced to prove its status as a platform instead of a publisher. Considering they’ve been engaging in Orwellian oversight, any kind of legal action could result in a dismantling of Section 230.
We do know one thing for certain – this ruling was a victory for the government and a mortal wound for free speech.
Now, if you’ll excuse me, I’ve got a date with Kevin Rudd’s Twitter page and a list of outrageously defamatory comments about Rupert Murdoch.
Alexandra Marshall is an independent writer. If you would like to support her work, shout her a coffee over at Ko-Fi.
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