Australia’s Upside Down Internet Liability Policy Shows How Section 230 Enables More Free Speech

from the the-land-down-under-has-upside-down-laws dept

It’s no secret to long term Techdirt readers that Australia truly is the upside down when it comes to internet laws and policy. We’ve discussed in the past things like Australia’s news link tax (they hate when you call it a tax, and insist it’s just a “bargaining code,” but the bargaining is to force internet companies to pay for linking to news, so it’s a tax), and its laws that can force companies to break their encryption. Or how about their plans to outlaw anonymity? But what’s been most stunning is their completely upside down view of intermediary liability. In Australia, not only can you sue intermediaries for someone else’s speech, the courts regularly happily side with absolutely ridiculous claims against those intermediaries.

The latest in an unfortunately long line of these cases is that an Australian court has ordered Google to pay the former deputy premier of New South Wales, John Barilaro (who is currently going through a job related controversy), because someone uploaded a YouTube video attacking Barilaro. In a normal system — i.e., like under the US’s Section 230 rules — Barilaro would have every right to go after the guy who created the videos, a comedian named Jordan Shanks, but Google has no liability since how the hell should it screen every video uploaded? Shanks actually settled with Barilaro last year, so the case continued just against Google.

As in previous, similar cases, Australia’s judges seemed to have no problem at all blaming Google for any content posted on a Google owned site, even if it was not created or viewed by anyone at Google.

On Monday, federal court justice Stephen Rares ruled that Barilaro had been left “traumatised” by a campaign of “relentless cyberbullying” by comedian Jordan Shanks, who uses the nom de plume Friendlyjordies

Rares ruled that Google had failed to adhere to its own policies by doing “nothing to prevent Mr Shanks’ hate speech, cyberbullying and harassment” of Barilaro.

The judge ordered Google to pay $715,000 in total, a figure which could rise if a costs order is made against the tech company.

Apparently the judge is also considering going after Google for putting “improper pressure” on Barilaro… by leaving the videos up. In other words, if a judge merely disagrees with a content moderation decision, that can be seen as an aggravating factor. It’s ridiculous.

The videos, and Google’s decision to leave them online, amounted to what the judge called “improper pressure” on Barilaro during the case.

“The intimidatory purpose of the hit its mark,” Rares found, pointing to evidence given by Barilaro during the trial that he had at one point instructed his lawyers to settle the case because “the hell continued”.

As Matthew Hughes, over at Reason, highlights that while the videos Shanks made may have been crass, they clearly would have been seen as protected speech elsewhere, and notes that Shanks’ YouTube channel has a history of doing significant investigative journalism on issues around government misconduct, including police misconduct and government corruption.

In other words, much of this certainly looks like retaliation against a vocal critic — while cashing in via Google, and making it much less likely that Google/YouTube will host his videos, or the videos of other critics in the future to avoid the risk of liability.

In other words: the laws that make it clear that intermediaries can’t be held liable for the speech of third parties protects speech and supports free speech.

Hughes’ article goes on to note other ways that Australia’s lack of 230 is now stifling speech, talking about the case that we covered last year, making Facebook users liable for comments under their posts. Soon after, we noted that CNN was removing comments from any of their posts in Australia, not because they don’t want the comments, but because the risk of liability is too great.

As Hughes explains, this has resulted in more speech suppression:

The ruling even prompted some politicians to reassess their social media presence. Peter Gutwein, who led Tasmania until April of this year, switched his Facebook profile to read-only mode, cutting off a potential communications channel for constituents. 

Announcing the change, Gutwein said, “The recent Facebook defamation ruling by the High Court has determined that the page owner is now legally responsible for user comments on posts. We know social media is a 24/7 medium, however, our moderation capabilities are not.”

Dan Andrews, the leader of Victoria, suggested that he may follow suit, though that has not yet come to fruition.

And now John Barilaro—a man who was once second most senior politician in Australia’s most populous state—has suppressed criticism from an independent media operation, and in so doing likely made internet companies less willing to help such operations reach an audience in Australia.

Once again, this is why we’ve been pointing out for over two decades now that Section 230 enables more speech and removing Section 230 (or equivalent) laws leads to speech suppression. It is bizarre beyond belief that people still seem to believe that Section 230 is against free speech. Section 230 is one of the most amazing tools supporting free speech we’ve ever seen — because it’s opened up so many different places on the internet for people to speak.

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Comments on “Australia’s Upside Down Internet Liability Policy Shows How Section 230 Enables More Free Speech”

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That One Guy (profile) says:

Re: Re: Re: 'But the light is much better over here.'

Balderdash, what next, saying I’m not allowed to sue Walmart because a customer said something mean to me, despite the fact that Walmart has way more mo- I mean is responsible? If they’re in the store the store is to blame, I don’t see why it would be any different online.

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PaulT (profile) says:

Re: Re: Re:

In other words, it immunises people from being held liable for someone else’s crimes.

Which is taken as granted in most other countries, but for some reason it was necessary to explicitly spell this out in the US, and some people seem to have a real problem with only the guilty being punished for some reason. Presumably because there’s no profit to be had if you can only go after individual lawbreakers instead of cash-rich bystanders.

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Stephen T. Stone (profile) says:

Re: Re: Re:7

Otherwording involves bad faith responses to people’s arguments. PaulT reframed my point from a different angle without either misinterpreting the point I made or assigning to me an argument I didn’t make. I don’t consider what he did to be otherwording; if I did, I’d say so.

Any discomfort you might have with my position would be your problem. Solve it yourself.

Tanner Andrews (profile) says:

Re: Re: Re:2 other people's offenses

it immunises people from being held liable for someone else’s crimes. [] Which is taken as granted in most other countries

Not in Australia. There, Google is held liable for the offense given by some local comedian.

Here in the States, you might not expect such liability to arise. You would surely be correct.

Here, S:230 is a procedural shortcut to reach early dismissal of claims founded on liability for third parties’ speech. Without it, the result would be, if fully litigated, be the same but it wouild take more time and money to reach that result.

(somehow it posted just the included text without letting me type in my response, so I am trying again)

Toom1275 (profile) says:

Re: Re: Re:5

https://www.law.cornell.edu/uscode/text/47/230

I already referred to the section that leaves infringement not covered under Section 230, and the “Notes” page in the link above shows the only change to subsection (e) being its re-lettering when a new section (d) was inserted, which suggest it was not added latee unlike the “sex trafficking” changes from FOSTA.

Notice that Section 230 also does not immunise agaimst federal crimes, of which defamation is not.

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Anonymous Coward says:

but Google has no liability since how the hell should it screen every video uploaded?

They are not, but rather to examine every video that they allow to published. I would bet that the legacy industries are whispering into politicians ears that they look at everything they publish, so why can’t Google. They conveniently fail to mention that the result is that 1% or less of human creativity get published, and the rest goes to the world of shattered dreams.

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Anonymous Coward says:

Re: Re:

a) Do we know for a fact that Google was given an opportunity to remove the video, or did Barilaro just jump straight to a lawsuit?

b) Even if Google was given notice, why should they remove a video solely on a unilateral, non-adjudicated allegation of defamation?

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That One Guy (profile) says:

Re: Re: Re: Like declaring 'fake news', no-one would do that lightly

I don’t see why not, I mean who would ever abuse a system that allowed them to take down speech merely on accusation? Clearly if someone says something is defamatory platforms have an obligation to take the claim at face value and it’s up to the accused to prove their innocence on the matter after the fact if they want their speech put back up.

Anonymous Coward says:

Re: Re: Re:5

To be fair, the claim that Techdirt isn’t mainstream is something that’s been cited by many trolls as evidence of Techdirt or its users having no influence – which became really funny as fuck when they desperately tried to justify the damage Shiva Ayyadurai supposedly endured.

For a site that they regularly denounce as mainstream, when push comes to shove the trolls and critics will clutch at their pearls as though Techdirt suddenly became significant.

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Anonymous Coward says:

Re: Re: Re:11

There was a time when 4chan was considered mainstream, until the fame went to the heads of every teenager trying their best to be edgy and relevant and ended up killing off whatever goodwill they had with their Anonymous HabboHotel stunts.

As for Kiwifarms, Jhon, you can keep trying to bring that up and it will never become relevant. On the other hand, you mentioning Kiwifarms like a desperate gotcha just makes it easier for everyone else to recognize you.

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That One Guy (profile) says:

'How dare you kick me out for swearing at you, censorship!'

It is bizarre beyond belief that people still seem to believe that Section 230 is against free speech.

230 is ‘against’ free speech in the same way that the existence of consequences and property rights are, so to believe that 230 is anti-free speech basically requires one to believe that ‘free speech’ is shorthand for consequence-free speech.

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Scary Devil Monastery (profile) says:

Re: Re: Re:2

…well, that, and even if he did out himself the only thing he’d be describing would turn out to be the exact opposite of the conclusions he’s trying to sell.

I mean, we’ve seen Baghdad Bob/bobmail/Jhon trying to actually present cases. Halfway through he always manages to take his own argument out back and put a bullet in it.

Anonymous Coward says:

Re: Re: Re:3

Shiva Ayyadurai really was the one and only Hail Mary he had, which might have stood a chance of succeeding if it wasn’t built on a false premise meant to fluff the easily bruised ego of a psychopathic manchild.

The sheer disappointment Jhon exuded in that thread where Shiva’s lawsuit was finally laid to rest was, in a word, exquisite.

Anonymous Coward says:

Autralia laws mean maybe big media company’s can allow comments, small media company’s can’t afford to employ moderators 24,7,
So it’s like a law in favour of rich corporations versus small indie media
every day, also YouTube can’t vet every video on its service, constantly, they probably rely on user comments or complaints to see if this video needs to be moderated,
It’s seems oz Politicans don’t understand the concept of free speech , making laws that discourage public comments is really an attack on free speech and the right for people to debate or question government policy’s

But this is a good test case to show that section 230 is really important to encourage free public political debate and comments and to alow More free speech

But Australia seems to want to see how many bad laws it can pass to break the Web supress free speech
Maybe Australians might start writing blogs that are hosted by usa company’s that have no oz based office in order to discuss certain issues

Naughty Autie says:

Re:

It seems Oz politicans don’t understand the concept of free speech, making laws that discourage public comments is really an attack on free speech and the right for people to debate or question government policies.

Or maybe they understand the importance of free speech all too well and have taken it away so Australian can’t discuss the foolishness, corruption, etc. of their politicians.

Tanner Andrews (profile) says:

Re: Not such a long arm is required

Maybe Australians might start writing blogs that are hosted by usa company

The problem is that the offending Australians are still within the reach of Australia’s (kangaroo?) courts. Having their messages hosted offshort does not put the authors out of reach, so they can still be sued for offending thin-skinned politicians.

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Naughty Autie says:

Techdirt: “Barilaro would have every right to go after the guy who created the videos, a comedian named Jordan Shanks, but Google has no liability since how the hell should it screen every video uploaded?”

Australia: points to ContentID

Everyone else: “That’s a blunt tool created to detect copyright infringement, and it gets that wrong half the time.”

Australia: points to ContentID

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Robin says:

Australian government Shamfull

I wanted to add my two cents in here about what Australia’s government is trying to do to it’s internet and also stifling any one or anything that tries to challenge there Shady actions and to me, what the Australian government is doing to there internet is an Absolute Disgrace and they should be severely punished for there actions because no one wants to be ruled over by a Nazi regime

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