By Dan Kennedy • The press, politics, technology, culture and other passions

Australian libel ruling shows what happens without Section 230 protections

Photo (cc) 2011 by Scott Calleja

I’m not familiar with the fine points of Australian libel law. But a decision this week by the High Court of Australia that publishers are liable for third-party comments posted on their Facebook pages demonstrates the power of Section 230 in the United States.

Section 230, part of the Communications Decency Act of 1996, does two things. First, it carves out an exception to the principle that publishers are legally responsible for all content, including advertisements and letters to the editor. By contrast, publishers are not liable for online comments in any way.

Second, in what is sometimes called the “Good Samaritan” provision, publishers may remove some third-party content without taking on liability for other content. For example, a lawyer might argue that a news organization that removed a libelous comment has taken on an editing role and could therefore be sued for other libelous comments that weren’t removed. Under Section 230, you can’t do that.

The Australian court’s ruling strikes me as a straightforward application of libel law in the absence of Section 230. Mike Cherney of The Wall Street Journal puts it this way:

The High Court of Australia determined that media companies, by creating a public Facebook page and posting content on that page, facilitated and encouraged comments from other users on those posts. That means the media companies should be considered publishers of the comments and are therefore responsible for any defamatory content that appears in them, according to a summary of the judgment from the court.

Over at the Nieman Journalism Lab, Joshua Benton has a markedly different take, arguing that the court is holding publishers responsible for content they did not publish. Benton writes:

Pandora’s box isn’t big enough to hold all the potential implications of that idea. That a news publisher should be held accountable for the journalism it publishes is obvious. That it should be held accountable for reader comments left on its own website (which it fully controls) is, at a minimum, debatable.

But that it should be held legally liable for the comments of every rando who visits its Facebook page — in other words, the speech of people it doesn’t control, on a platform it doesn’t control — is a big, big step.

I disagree. As I said, publishers are traditionally liable for every piece of content that appears under their name. Section 230 was a deviation from that tradition — a special carve-out providing publishers with immunity they wouldn’t otherwise have. If Benton is right, then we never needed 230. But of course we did. There’s a reason that the Electronic Frontier Foundation calls 230 “the most important law protecting internet speech.”

I also don’t see much difference between comments posted on a publisher’s website or on its Facebook page. A Facebook page is something you set up, add content to and manage. It’s not yours in the same way as your website, but it is part of your brand and under your control. If you should be liable for third-party content on your website, then it’s hardly a stretch to say that you should also be liable for third-party content on your Facebook page.

As the role of social media in our political discourse has become increasingly fraught, there have been a number of calls to abolish or reform 230. Abolition would mean the end of Facebook — and, for that matter, the comments sections on websites. (There are days when I’m tempted…) Personally, I’d look into abolishing 230 protections for sites that use algorithms to drive engagement and, thus, divisiveness. Such a change would make Facebook less profitable, but I think we could live with that.

Australia, meanwhile, has a dilemma on its hands. Maybe Parliament will pass a law equivalent to Section 230, but (I hope) with less sweeping protections. In any case, Australia should serve as an interesting test case to see what happens when toxic, often libelous third-party comments no longer get a free pass.

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  1. Marcus Breen

    As an Australian-born and bred US citizen, it is pleasing to see Australia go it alone in distinguishing its national cultural priorities from that of the US. It is important to recognize that yes, Australia is not the United States (although some of my fellow countryfolk have difficulty comprehending the idea that there are two sovereign national legal systems and cultures at play). In other words, free speech as it is constituted in the USA is not the same everywhere – that is, the US model is NOT universal.

  2. Steve Ross

    Direct comparisons would be hard in any case. In Australia, public figures can sue for libel. Here they must prove actual malice. In Australia, loser plaintiffs might have to pay defendants’ legal fees. Here, that rarely happens.

  3. I appreciate this reporting about how an Australian court has responded as well as Dan’s comments in response to Josh Benton. I am weighing all sides in trying to learn how to best respond to Arlington Patch Neighbor comments. There, my posts are routinely vilified by “two” posters — actually one and his alias. Ignoring the troll did not work. Complaining to Patch moderators worked to a degree. Now I am trying to engage “both,” with little success so far. I do not regard my posts as Patch-owned comment, yet I would think the media outlet should defend itself.

    • Steve Ross

      To be libel in the USA, something has to be a falsehood, not pure opinion and has to damage your standing in the community. Trump supporters and some progressives have defended themselves by claiming only an idiot could believe their statements, thus the statements are not libel.

      Alleging error in the USA on the part of, say, a retailer is almost never libel because, well, mistakes happen and should be expected as none of us is perfect. But deliberate falsehood (fabricating a mistake about a retailer, for instance) is grounds for libel damages.

      Same holds for omissions. Two PhD candidates at Columbia wrote a history of analytic journalism in 2014 but were kept in the dark (deliberately, I think, but the suspected perpetrator is dead) about Columbia’s contributions to the field. As most of those contributions were mine, their report made my resume seem a lie. I reached out and (in person) provided much evidence including the first textbook in the field.

      I’m told they immediately went to the dean, suggesting the report be amended. He refused, and thus committed libel in my opinion. He never even apologized and.never answered my emailed and phoned query. The authors themselves added what amounted to an apology, on the site housing the report.

      No point suing (and again, the person I think caused the omission is dead) but I wrote Columbia out of my will.

      Take a close look. If I were sued for libel, some of what I just said is indeed opinion. What is not opinion is all true, though, to the best of my knowledge and belief.

      This is part of the reason Section 230 exists… the best examples are often complicated and all-consuming to litigate. So services meant to engage the broad public (supposedly a social good) would be disadvantaged. In 1996, Congress was thinking of things more like Patch than Facebook though.

      • In 1996, Congress was thinking about newspaper websites, although AOL was the defendant in an important early test case of Section 230. The main reason 230 exists is because the communications industry convinced Congress that it shouldn’t be forced to hire armies of moderators to weed out problematic comments either before or after they were posted.

      • Steve Ross

        Dan, absolutely. In the fall of 1996, with the law just a few months old, I and many faculty members took Columbia’s libel course for journalists. The law school and journalism school faculty were both internally split on impact. We were seeing some “community journalism,” and of course some newspapers had web sites and some of those allowed comments. But no one on those faculties, I think, envisioned Facebook or Twitter with algorithms that drove greater notice to crazier comments. The internet had gone commercial in Oct 92, graphical web browser was unveiled in 1993. I taught new media workshop in spring 1994. This was early in the game.

        It does amaze me that 230 has survived as long as it has, and there are many saying that outright repeal would be worse. But here, there is little honest debate and little appreciation for what the law outside of telecom says.

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