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

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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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posted at: 12:00am on 09-Sep-2021
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New Texas Abortion Law Likely To Unleash A Torrent Of Lawsuits Against Online Education, Advocacy And Other Speech

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In addition to the drastic restrictions it places on a woman’s reproductive and medical care rights, the new Texas abortion lawSB8, will have devastating effects on online speech. The law creates a cadre of bounty hunters who can use the courts to punish and silence anyone whose online advocacy, education, and other speech about abortion draws their ire. It will undoubtedly lead to a torrent of private lawsuits against online speakers who publish information about abortion rights and access in Texas, with little regard for the merits of those lawsuits or the First Amendment protections accorded to the speech. Individuals and organizations providing basic educational resources, sharing information, identifying locations of clinics, arranging rides and escorts, fundraising to support reproductive rights, or simply encouraging women to consider all their options now have to consider the risk that they might be sued for merely speaking. The result will be a chilling effect on speech and a litigation cudgel that will be used to silence those who seek to give women truthful information about their reproductive options. SB8, also known as the Texas Heartbeat Act, encourages private persons to file lawsuits against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” It doesn’t matter whether that person “knew or should have known that the abortion would be performed or induced in violation of the law,” that is, the law’s new and broadly expansive definition of illegal abortion. And you can be liable even if you simply intend to help, regardless, apparently, of whether an illegal abortion actually resulted from your assistance.And although you may defend a lawsuit if you believed the doctor performing the abortion complied with the law, it is really hard to do so. You must prove that you conducted a “reasonable investigation,” and as a result “reasonably believed” that the doctor was following the law. That’s a lot to do before you simply post something to the internet, and of course you will probably have to hire a lawyer to help you do it.SB8 is a “bounty law”: it doesn’t just allow these lawsuits, it provides a significant financial incentive to file them. It guarantees that a person who files and wins such a lawsuit will receive at least $10,000 for each abortion that the speech “aided or abetted,” plus their costs and attorney’s fees. At the same time, SB8 may often shield these bounty hunters from having to pay the defendant’s legal costs should they lose. This removes a key financial disincentive they might have had against bringing meritless lawsuits. Moreover, lawsuits may be filed up to six years after the purported “aiding and abetting” occurred. And the law allows for retroactive liability: you can be liable even if your “aiding and abetting” conduct was legal when you did it, if a later court decision changes the rules. Together this creates a ticking time bomb for anyone who dares to say anything that educates the public about, or even discusses, abortion online.Given this legal structure, and the law’s vast application, there is no doubt that we will quickly see the emergence of anti-choice trolls: lawyers and plaintiffs dedicated to using the courts to extort money from a wide variety of speakers supporting reproductive rights.And unfortunately, it’s not clear when speech encouraging someone to or instructing them how to commit a crime rises to the level of “aiding and abetting” unprotected by the First Amendment. Under the leading case on the issue, it is a fact-intensive analysis, which means that defending the case on First amendment grounds may be arduous and expensive. The result of all of this is the classic chilling effect: many would-be speakers will choose not to speak at all for fear of having to defend even the meritless lawsuits that SB8 encourages. And many speakers will choose to take down their speech if merely threatened with a lawsuit, rather than risk the law’s penalties if they lose or take on the burdens of a fact-intensive case even if they were likely to win it. The law does include an empty clause providing that it may not be “construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution.” While that sounds nice, it offers no real protection—you can already raise the First Amendment in any case, and you don’t need the Texas legislature to give you permission. Rather, that clause is included to try to insulate the law from a facial First Amendment challenge—a challenge to the mere existence of the law rather than its use against a specific person. In other words, the drafters are hoping to ensure that, even if the law is unconstitutional—which it is—each individual plaintiff will have to raise the First Amendment issues on their own, and bear the exorbitant costs—both financial and otherwise—of having to defend the lawsuit in the first place.One existing free speech bulwark—47 U.S.C. § 230 (“Section 230”)—will provide some protection here, at least for the online intermediaries upon which many speakers depend. Section 230 immunizes online intermediaries from state law liability arising from the speech of their users, so it provides a way for online platforms and other services to get early dismissals of lawsuits against them based on their hosting of user speech. So although a user will still have to fully defend a lawsuit arising, for example, from posting clinic hours online, the platform they used to share that information will not. That is important, because without that protection, many platforms would preemptively take down abortion-related speech for fear of having to defend these lawsuits themselves. As a result, even a strong-willed abortion advocate willing to risk the burdens of litigation in order to defend their right to speak will find their speech limited if weak-kneed platforms refuse to publish it. This is exactly the way Section 230 is designed to work: to reduce the likelihood that platforms will censor in order to protect themselves from legal liability, and to enable speakers to make their own decisions about what to say and what risks to bear with their speech. But a powerful and dangerous chilling effect remains for users. Texas’s anti-abortion law is an attack on many fundamental rights, including the First Amendment rights to advocate for abortion rights, to provide basic educational information, and to counsel those considering reproductive decisions. We will keep a close eye on the lawsuits the law spurs and the chilling effects that accompany them. If you experience such censorship, please contact info@eff.org.Originally published to the EFF Deeplinks blog.

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posted at: 12:00am on 09-Sep-2021
path: /Policy | permalink | edit (requires password)

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