Australia Says Media Companies Can Be Sued Over User Comments On Facebook

from the intermediary-liability-gone-mad dept

It’s no secret that Australia has taken a very different view towards intermediary liability than the US, saying (for example) that search engines can be responsible for search results it had nothing to do with, and even that they can be held liable if you are offended by the images that show up next to yours in an image search. So perhaps the latest such case in Australia shouldn’t be a surprise. A court has ruled that media companies can be held liable for comments on their news stories. And not just the comments on their own pages… but on Facebook.

And the reasoning here is truly incredible. Because an “expert” testified that news sites could “hack” Facebook with a filtered list of common words to block comments, that magically makes them liable. No, really.

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.

Not doing that convoluted “hack” magically makes the news sites (not even Facebook) liable as a publisher for the comments. The judge’s reasoning here is pretty incredible:

But Rothman found each company could reasonably monitor comments if they had sufficient staff to do so.

Rothman said that each media company running a public Facebook page had “little to do with freedom of speech or the exchange of ideas”.

“Rather, the media companies? use of a public Facebook page is about their own commercial interests,” he said.

He acknowledged that “of course” it is the reader who writes the comment and posts it, but the media companies had brought about that result by running a public Facebook page where the comment could be seen, and by not hiding and moderating comments.

The comments are therefore published, for defamation purposes, by the media companies, he wrote.

“Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.”

This has shades of the awful Delfi decision in the European Court of Human Rights, that held that a publication could be liable for its comments, but this seems even worse, as it’s not even comments on the news organization’s own site. Even worse, the idea that news sites have to somehow “hack” third party sites to “pre-block” all comments seems insane. This seems like the mirror images of the US. This kind of ruling goes even beyond Stratton Oakmont v. Prodigy in the US — the case that inspired Section 230 of the CDA.

It seems increasingly wise for internet companies not to offer any services in Australia, as the threat of liability extends so far as to be untenable.

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Comments on “Australia Says Media Companies Can Be Sued Over User Comments On Facebook”

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45 Comments
Nathan F (profile) says:

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.

Do they do things that differently in Australia? Can I, as a private citizen, declare something is defamatory and force someone to take it down? Usually it takes a judge to declare a statement is defamatory. How is this not going to put civil discourse into an absolute zero wasteland?

Gary (profile) says:

Times

Cory Doctorow was just writing about this problem in the Times today:

https://www.nytimes.com/2019/06/24/opinion/future-free-speech-social-media-platforms.html

If companies can be held liable like this, it means comments will be filtered down to nothing.

Which is certainly a desirable result for big corporations/scammers that don’t want uncensored information about their products, bad reviews, or anything they can’t control.

That One Guy (profile) says:

Re: Re: Cleaning up the blood while ignoring the stab wound

‘We can either try to fix Big Tech (by making it use its monopoly profits to clean up its act)

That sounds remarkably like ‘nerd harder’ there, an idea that is regularly called out and mocked on TD…

‘…or we can fix the internet (by breaking them up and denying them access to monopoly profits) — but we can’t do both.

And this raises the question that others have raised, ‘break them up into what?’

Take YouTube for example. Break that away from Google and it’s still the dominant video platform. It’s still facing the same moderation problems from before, except now it has less money to work with to deal with them. Any potential competitors are still facing the same significant resource requirement to become viable competitors, and are still open to being sued by the same groups who’ve gone after YouTube in the past for various reasons.

As for the ‘source’ article I’ve got several problems with that one too, as it strikes me as rather bi-polar, talking about how the regulations and removal of immunity that killed off smaller platforms and entrenched the major players as the only ones able to survive are bad in the start, only to veer off into blaming the large platforms for… becoming the only way to post because they’re the only ones who can afford to follow the regulations, with a dash of nerd harder there as well(‘So the platforms fixed this the Silicon Valley way: They automated it. Badly.’)

If the hypothetical regulations and legal obligations are what ensured the dominance of the major platforms and ensured that only ‘clean, family friendly’ content could be posted then it seems to me that the main focus should be on those in the hypothetical, with less time spent on how if only the companies involved had been broken up(and again, ‘into what?’) then it wouldn’t have gotten that bad.

If a company is abusing it’s position to the detriment of society then that’s a problem worth addressing, but if regulations and legal liability will ensure that only the larger companies can survive because the smaller ones simply do not have the resources then I’d say that’s a much larger problem.

Anonymous Coward says:

Re: Cake and Eat It

facebook inc does not want to be required to uphold free speech…

facebook inc does not want to be liable for speech it keeps on its platform..

And you want corporations to always decide whether your speech can be published or not. Because if you hold them liable for your speech, they will control whether it is published or not.

Anonymous Coward says:

Re: Re: Cake and Eat It

Either facebook inc allows all speech or facebook inc should be responsible for the media it is curating. If it is having trouble offering a product service and being responsible for its content then maybe it needs to examine the business model or embrace that free speech.

You can’t loose money and make it up with volume forever…

The best / worst thing going for facebook inc is the three letter agencies love the data.

aerinai (profile) says:

Re: Re: Re: Cake and Eat It

You should blame Kinko’s for letting a person write libelous bumper sticket (libel = illegal speech)

You should blame your local government for letting a person read a play outside of my house in ‘public’ (performing a play is copyright infringement since it is a public performance)

You should blame your State/Province for letting a person threaten a co-worker (illegal speech)

You should blame the First Amendment for letting people be dicks….

If you start to blame Facebook for letting people say things and holding THEM responsible, you take the onus off the real asshole and open up for stupid lawsuits. This isn’t about having a cake and eating it too… It’s about the damn cake being allowed to exist in the first place!

Gary (profile) says:

Re: Cake and Eat It

facebook inc does not want to be required to uphold free speech…

Facebook is not required or interested in "Upholding Free Speech." They provide a platform for other people to communicate.

No online service can operate without some form of moderation and TOS. Anyone who insists otherwise is free to start their own "Free Peach" website and show us how that works out.

Mike Masnick (profile) says:

Re: Cake and Eat It

facebook inc does not want to be required to uphold free speech…

This case is not about Facebook or whether Facebook uphold’s free speech.

facebook inc does not want to be liable for speech it keeps on its platform..

This case is not about Facebook or what speech it keeps on its platform.

maybe facebook inc grew too big too fast and cannot handle its operations without getting a pass…

This case is not about Facebook or how it handles its operations.

But your Facebook derangement syndrome is duly noted.

That One Guy (profile) says:

Re: Re: Re:3

As Anonymous Coward stated you made it about Facebook.

Just because something is stated does not mean it’s true, and in that case it isn’t.

Now quit complaining that your users can read what you wrote.

You might have a point if they had read it, but to anyone who did read the article it’s clear that the only part they read was ‘Facebook’, because the article was very clearly about other companies using Facebook and how those other companies are liable for what’s posted on their account pages, and has nothing to do with what Facebook does or does not allow.

Uriel-238 (profile) says:

Are we sure this is stupidity?

At this point it seems willful that Australia is trying to make internet engagement criminal. At this point it seems like malice, an agenda to kill the internet.

It won’t. It’ll drive more of the internet underground. More people will act and post anonymously. More people will be indistinguishable from pedophiles and terrorists. More of the internet will look less like Techdirt or the New York Times, and more like /b.

ECA (profile) says:

WHO the hell...

"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. "

Can someone tell me Where this person learned programming, on a WORLD LEVEL??
That Laws of the land only stretch to the Borders.
And one reason Iv suggested the Internet Decide to call itself another nation..Independent..

AND another nation that thinks POINTING fingers and Blaming means they dont have to Clean up There own back yards

Anonymous Coward says:

This judge does not understand or care about free speech,
can he explain how fb can check comments every day in case maybe,
1 per cent might be defamatory ?
There,s billions of users on FB, there must be millions of comments every hour.
This is likely to less free speech in australia ,
some services being blocked there , or services may just choose to allow
users to comment on any article ,or post.
i read many articles about tech,
alot of the time the comments are just as interesting or useful
as the post itself.
Many websites like techdirt rely on comments to build a sense of community .saying all comments must be checked is not practical
in a world where a service may have millions of users .
And it places an undue burden on websites .
But australia seems to have a strange viewpoint on free speech,
police are raiding journalists homes to look for info on the source of certain articles .

Anonymous Coward says:

Re: Re:

Ex Queensland Drugs Squad Copper Minister Peter Dutton is proud of the way the judges are agreeing to his total shutdown of negative comments about his government from either Whistleblowers or just Joe Blow, the effect is the same. Plebs will be quiet & take what is coming. Total dictatorial government by the rich, for the rich, reducing red & green tape for their mates & heaps of draconian laws for the rest to obey.

Cathy Smith (user link) says:

Business Women Australia

Business Women Australia (BWA) brings together business women from all sectors, industries and states:

Business owners and entrepreneurs
Executives, directors and managers
Professionals
Women on Boards
Leaders and Emerging Leaders

BWA is focused on key areas:
Leadership
Business Improvement
Personal Growth
Influence and Profile
Connections and Friendship

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