Rupert Murdoch Learns Why Intermediary Liability Protections Matter: Australia Says Media Orgs Can Be Sued Over Facebook Comments

from the it's-like-a-petry-dish-of-dumb-internet-policy dept

Ah, Australia. The country down under has always taken an upside down view on intermediary liability laws -- quite quick to blame an intermediary for 3rd party content. Two years ago we wrote about a problematic ruling in Australia based on the idea that media companies (not just social media companies) could be held liable for comments on Facebook about their stories. Any common sense thinking would immediately reveal how ridiculous this is: how can a media company be held liable for someone else's comments on someone else's website? Well, the judge noted, because they could hack Facebook and insert a filter to block comments on their stories with the 100 most common English words, as a form of pre-vetting every comment. I'm not kidding:

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.

That ruling was appealed and Australia's High Court has... incredibly (though not surprisingly, given the country's other rulings on intermediary liability) upheld the ruling. Indeed, it points to earlier ridiculous rulings to say that, in Australia, it doesn't matter if the publisher's intention was not to publish anything defamatory. Instead, it says that if you are tangentially connected to a defamatory publication, you're liable:

... a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

This is, basically, the anti-230. It says if you have any role in publishing defamatory information, you can be treated as the publisher.

The media organizations involved in the lawsuit pointed out that there is an "innocent dissemination" defense (defence down under) for distributors (a form of distributor liability), but the court doesn't think that really exists, and literally mocks the decisions where it was found to exist.

The defence cannot be said to be rooted in principle. In Thompson v Australian Capital Television Pty Ltd[44], its origins were described as "muddied". The decision in Emmens v Pottle has been described as more pragmatic than principled[45]. Lord Esher appears to have been motivated by a concern that the common law would appear to be unjust and unreasonable if some such accommodation was not made by the courts. In Thompson[46], it was said that his Lordship "rationalised rather than explained the decision".

And thus the end result is liability for absolutely everyone.

The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.

A separate concurrence was even more ridiculous:

Each appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. Each appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option (in addition to "Like" or "Share") to "Comment" on the content by posting a comment which (if not "filtered" so as to be automatically "hidden" if it contained "moderated words") was automatically accessible in a comprehensible form by other Facebook users.

The whole thing just seems fundamentally ridiculous -- and a huge attack on speech. However, it's also a very clear lesson in why intermediary liability protections like Section 230 are so important. As Australian law professor David Rolph wrote in response to the ruling, there's a high likelihood that media organizations will end up shutting down their Facebook pages, and cutting off user comments because of this:

Today’s ruling may inspire many social media account managers to make greater use of these features and tightly restrict comments — or, where possible, switch them off completely.

In other words -- as we've said repeatedly over the years -- Section 230 protects free speech by making it possible for websites to host user comments in the first place. Without those protections, you get fewer places to speak. Unfortunately, this ruling fits with the trend we've seen elsewhere, such as the Defli decision in the European Court of Human Rights that held a publication liable for user comments.

Of course, the real irony here is that Rupert Murdoch still owns a ton of news organizations in Australia impacted by this decision. Indeed, the person who originally brought the lawsuit wants to sue a bunch of media companies for (allegedly) defamatory comments on Facebook... including the Murdoch-owned Sky News Australia.

And yet, over the last few years, Rupert Murdoch has been one of the most aggressive anti-Section 230 advocates around, and has had Fox News and the WSJ editorial page run all sorts of attacks on Section 230, and pushed for the government to undermine those protections. Yet now, down in his home country, he may face massive legal liability under the kind of regime he's pushing for in the US.

There have been so many debates about intermediary liability and Section 230, but now Australia is really turning into a petri dish example of what happens when you have the exact opposite views on intermediary liability.

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Filed Under: australia, comments, defamation, free speech, intermediary liability, news organizations, rupert murdoch, social media


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  • icon
    Samuel Abram (profile), 8 Sep 2021 @ 1:36pm

    Murdoch fucked around…

    …and he found out. No sympathy from me for the old fucking bastard.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 8 Sep 2021 @ 2:07pm

      Re: Murdoch fucked around…

      I'm short on sympathy for the old bastard myself, but I'm not entirely clear how this qualifies as fucking around and finding out. He wasn't a party to this suit and it hasn't affected him yet (though it's probably just a matter of time).

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Sep 2021 @ 4:43pm

      Re: Murdoch fucked around…

      It is a cost of doing business for him for now - it isn't like his tabloid minion's reckless evidence tampering phone hacking case. At least not yet.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2021 @ 2:16pm

    Murdoch is sitting there, a lonely billionaire who had to buy himself a Jerry Hall by promising to die soon as leave her all his money.

    He reneged on this like everything else in his sad life, sitting, alone hating his own children, yelling at the abyss soon to claim his mummies body and boney girl arms.

    And no-one will cry at his funeral unless they're being paid. Not even his children who hate him nearly as much as he hates them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2021 @ 2:30pm

    The country down under has always taken an upside down view

    You had to do this.

    reply to this | link to this | view in chronology ]

  • icon
    Rico R. (profile), 8 Sep 2021 @ 2:35pm

    Hey, News Organizations:

    Now that you know what it's like to be forced to pay someone you don't owe money to for something done by a third party completely out of your control, does that mean you're going to stop asking for Facebook to pay you money when a third party decides to post links to stories on your news sites?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2021 @ 2:40pm

    this effects any media company who allows comments on an australian website, it shows section 230 is vital for free speech, most media companys will simply shut down all comments ,or maybe registered users to comment
    after its screened for defamatory content.or maybe only the big tech companys will be able to hire moderators .but then australia has been making new laws the last few years to break the web , eg all data has to be avaidable to police
    all the time , no privacy for business or financial banking data .
    i think murdoch is against section 230 because it protects google,youtube,facebook from vexatious lawsuits eg companys who compete with his media companys and newspapers .

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2021 @ 2:49pm

    As far as Murdoch is concerned, it couldn't happen to a more deserving asshole!
    As for the ruling itself, how ridiculous! But snything that's possible to shut down people from making comments, making their thoughts and opinions known are being used by governments worldwide! They all want to be able to stop, then penalise free speech as far as the masses are concerned but want to be able to condenm and prosecute those same masses!

    reply to this | link to this | view in chronology ]

  • icon
    hoop_snake_drop_bear (profile), 8 Sep 2021 @ 2:58pm

    It covers all and sundry

    ... a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher

    The paper boy will be in court before long

    reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 8 Sep 2021 @ 4:00pm

    Don't worry, I'm sure he's having his lawyers draft up another Murdoch protection act that will spare his media outlets there from lawsuits or having to moderate comments. No doubt he'll have it crafted with surgical precision the way he did with the last Murdoch protection law, leaving smaller outlets to fend for themselves.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 Sep 2021 @ 4:34pm

    Wait until they find out that people can like stories & make them show up in their feeds where other people can comment on them.

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 8 Sep 2021 @ 5:57pm

    There really isn't a conflict of ideas here.

    The ultimate goal of these publishers is to turn the Internet into another medium like TV: one way. Only the large publishers get to publish anything.

    So, what Murdock wants is to destroy all comments, including those on his own properties, but making sure that there are no competing venues for commenting.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2021 @ 7:34pm

    Time to Bend muddy

    reply to this | link to this | view in chronology ]

  • identicon
    Yammerhead Suppressor, 8 Sep 2021 @ 7:43pm

    Makes sense! "Social media" is simply unworkable.

    As I've long said. You read it here first, yet "hid" it because imagine your off-top-of-head thoughts are important.

    reply to this | link to this | view in chronology ]

  • identicon
    Muddy Bender, 8 Sep 2021 @ 7:46pm

    No idea what "Time to Bend muddy" means.

    But this is Tech-dirt, home of nonsense.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2021 @ 7:49pm

    Makes sense! "Social media" is simply unworkable.

    By Yammerhead Suppressor

    I'm a little surprised that lawyers followed the implications of "too much speech" by yahoos and masnicks to the obvious conclusion, is all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2021 @ 9:15pm

    This is an attempt to control speech. It will work about as well as the Great Firewall of China.

    People are most inventive with language to say what they mean, even if indirectly. There is no possible filter that will work against those determined to have their say. They can just as easily come up with a word that represents whatever they wish to comment on, whether it is for or against some idea, action, or news article.

    The Australian court has set up a whack-a-mole that will never be closed down.

    reply to this | link to this | view in chronology ]

  • identicon
    John Smith, 8 Sep 2021 @ 10:35pm

    Poor thing.

    reply to this | link to this | view in chronology ]

  • icon
    dbrower (profile), 9 Sep 2021 @ 1:27pm

    Actually consistent for the Murdochs

    They’d far rather have all speech but their own suppressed, and user generated content has always been something they do because they feel they have to rather than something they want.

    “They’ll think what I tell them to think!” — Charles Foster Kane

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2021 @ 2:52pm

    The LNP will try and find some way to protect Demon Lord Rupert from this travesty because he helped make them and he can break them.

    reply to this | link to this | view in chronology ]

  • icon
    missrao (profile), 10 Sep 2021 @ 12:40am

    He owns Sky News? I did not know that. I already thought they were fringe, now I know they're fake fringe.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Sep 2021 @ 9:11am

      Re:

      He also owns a lot of other things, most notably HarperCollins, National Geographic, at least one major non-Fox News newspaper, aforementioned Fox News, Sky, The Sun, Zondervan Publishing...

      And all that money is being used to fund destructive things like Young Earth Creationism, NeoNazi ideologies and screwing Australia.

      reply to this | link to this | view in chronology ]


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