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.
Filed Under: australia, censorship, free speech, intermediary liability, internet, john barlaro, section 230
Companies: google
Comments on “Australia’s Upside Down Internet Liability Policy Shows How Section 230 Enables More Free Speech”
The people who do believe it tend to be the kind of people who are 100% fine with silencing speech they don’t like—typically via lawsuits (or threats thereof).
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Re:
230-immunized libel is used to silence far more speech. Which internet lawyers have defended websites whose sole purpose is to harass and dox people?
Re: Re:
230 doesn’t immunize defamation—it puts the blame for the defamatory statements where that blame belongs: on the person who wrote them.
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.
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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Re: Re: Re:2
Careful. Stephen really doesn’t like people “otherwording” him, as another commenter found out to their cost.
Re: Re: Re:3 You’re not me, so…
How about you let me speak for myself, mmm’kay?
Re: Re: Re:4
So, you’re a coward that doesn’t like your bad behavior being brought into the light of day. Good to know.
Re: Re: Re:5
[Projects facts not in evidence]
Re: Re: Re:6
Said the hypocrite of a lying troll.
Re: Re: Re:5
I don’t respond to otherwording.
Re: Re: Re:6
And now I know you respond selectively as well as remembering selectively.
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.
Re: Re: Re:7
Says the troll who selectively doesn’t remember having their lies about Section 230 so recently debunked with the facts.
Re: Re: Re:8
What part of “copyright infringement is not always a federal criminal case” a lie? Thanks for admitting you’re a liar, though.
Re: Re: Re:9
Section 230 doesn’t apply to copyright infringement at all, whether it’s civil or criminal infringement.
A website can absolutely be sued for copyright infringement if a commenter posts copyrighted material, and Section 230 won’t immunize them.
DMCA safe harbor immunity can though.
Re: Re: Re:2 other people
In other words, it immunises people from being held liable for someone else’s crimes.
Which is taken as granted in most other countries
Re: Re: Re:2 other people's offenses
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)
Re: Re: Re:
230 doesn’t immunize defamation—it puts the blame for the defamatory statements where that blame belongs: on the person who wrote them.
Careful. When I tried saying the same thing about copyright infringement, Toom1275 accused me of being a lying troll.
Re: Re: Re:2
Apples and oranges.
Re: Re: Re:3
Since when has defamation been covered under §230 and infringement not?
Re: Re: Re:4
Since it was written.
Re: Re: Re:5
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.
Re: Re: Re:6
To be precise: Section 230 des not provide any immunity whatsoever to any party guilty of any crime, and never once has.
All it does is shut down fraudulent lawsuits that are either targeted at an innocent third party (the platform) or illegally targeting Constitutionally-protected speech (such as content moderation).
Re: Re:
[Hallucinates facts not
Re: Re: Re:
in evidence]
Re: Re:
Does not, and cannot, exist in the real world.
Re: Re: Emphasis on impotent.
Hey Jhon boi got any more impotent lawsuits to file?
Re: Re:
Like what? BE SPECIFIC.
The 2 sites I can think of don’t even have the money to pay if they were sued.
Re: Re: Re:
It’s kind of a shame that a target of Jhon’s defamatpry lawsuits will need to have enough money to last long enough to win their inevitable payment from him.
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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Re:
Google could have avoided liability by taking down the video upon notice. They don’t have to screen.
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?
Re: Re:
A fraud saying “this is defamatory” doesn’t make it so.
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.
Re: Re: Re:2
Copyright maximalists. 🙃
Re: Re: Re:3
whooosh
Re: Re: Re:4
What are you, the Pumaman?
Re: Re: Re:3
*whooosh*
Re: Re: Re:3
And authoritarians.
Re: Re: Re:
Your comment is libellous just because I say so.
Re: Re: Something something hoist lift petard etc.
So could you…
Re: Re:
Do you really want to give government the ability to get anything they disagree with removed from the Internet, because that is what take down on notice achieves
Re: Re: Re:
That seems like something authoritarian regimes like China, Russia, and Australia would do.
Re: Re: Re:2
This happens a lot of times in Singapore, to the point where alternate news places have to be exceedingly specific, fact-checked and disclaimered to the poi t 9f exhuastion.
While the mainstream news places get to have a troll army.
Re: Re: Re:3
Techdirt’s not mainstream.
Re: Re: Re:4
Nor does one projector constitute an “army”
Re: Re: Re:5
True, you don’t.
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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Re: Re: Re:6
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…
*whooosh*
Re: Re: Re:7
I can assure you that you’re not making the point you think you’re making—or any point, for that matter.
Re: Re: Re:8
It’s really something, the way trolls desperately want Techdirt to be insignificant enough for them to mock but also noticeable enough for them to rally against.
Re: Re: Re:9
Or it could be that none of you recognize the point that was made about Techdirt not being mainstream and still having plenty of trolls. I’m not sure whether it’s because you lack critical thinking skills or because you’re guilty of trolling yourselves.
Re: Re: Re:10
Maybe the point should’ve been clearer from the get-go, then.
Re: Re: Re:11
It was clear enough for me to extrapolate.
Re: Re: Re:12
Adding a “whoosh” doesn’t extrapolate anything. The best it does is give you a high horse to clamber upon and mock anyone who couldn’t read your mind to see the obvious.
Re: Re: Re:10
Meanwhile…
4chan and its ilk are definitely not mainstream and are home to more trolls and other such nasties.
Kiwifarms is basically a harassment community.
Your point being?
Re: Re: Re:11
I’ve already explained the point that was made, but you’re clearly still too dumb to get it.
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.
Re: Re: Re:8
True, you’re not.
time to wonder
Sear google.
Isnt it time to Take others to Court for the USE of your name and Abit of Slander?
You know who is doing this, as he Lives in the USA.
They will hold you responsible, but PRINT IT on ther own news and TV, before an Outcome.
Which means you Should be able to take them to court.
'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.
This comment has been flagged by the community. Click here to show it.
Re:
Having one’s reputation destroyed by 230-enabled libel is not “consequences” for free speech.
Sites which have driven people to suicide have even said they couldn’t exist without 230.
Re: Re:
How’s that defense fund for Richard Liebowitz coming along, John Smith?
Re: Re: Re:
Wait, he’s planing to buy Liebowitz a straight jacket?
Re: Re: Re:2
Considering it’s John Smith, I think he’d buy Richard Liebowitz a bridal gown.
Re: Re:
Name one person that has had their reputation destroyed by “libel”?
Re: Re: Re:
See, there’s the problem – John Smith’s too chickenshit to out himself.
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.
Re: Re: Re:2
Jhon’s never been libeled, nor does he know anyone who has.
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.
Re: Re: Where’s my lawsuit you impotent bitch.
Hey Jhon remember all the time you were going to sue us?
Re: Re:
Please cite those sites. Be Specific, Jhon.
Isolated cases do not count.
Re:
There is not a single person who is against Section 230 that is for free speech and against censorship.
Re: Re:
Unless that censorship and lack of free speech would impact them. Even then, they’re on the fence if it means the rights of those they disagree with being eroded.
Re:
Reading comprehension fail.
Re: Re:
We get it, you John Smith fanboy.
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
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.
Re:
Gee, I wonder who paid the Aussies off?
Was it RUPERT MURDOCH, OWNER AND FOUNDER OF NEWS CORP?
Re: Not such a long arm is required
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.
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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