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By Paul Russell, LegalMatters Staff • The reaction by Facebook to the consequences of a recent Australian court decision that makes online publishers responsible for third-party comments shows how defamatory content can be controlled, says Toronto defamation lawyer Howard Winkler.
Early in September, Australia’s high court ruled that online publishers such as Twitter, Google and Facebook were legally responsible for the comments added to their posts, even if the stories themselves were factual and accurate.
After that ruling, American-based CNN asked Facebook if the company would help news organizations disable the comments on their pages so it could avoid any legal risk, according to a news story, which adds Facebook “declined to craft a blanket disable feature, instead saying it would help CNN disable comments on posts one-by-one.”
Not satisfied, CNN responded by disabling its Facebook pages in Australia, forcing Facebook to give in to CNN’s demands for the blanket disable feature in that country.
Online platforms ‘blinked in the face of external pressure’
“This is just the latest example of many where Google and Facebook have blinked in the face of external pressure,” says Winkler, principal and founder of Winkler Law, adding that in February, Australia passed legislation that forces online platforms to pay for news content they use.
“After that decision, Google threatened to leave Australia,” Winkler tells LegalMattersCanada.ca. “When that failed to have any effect, they relented and entered into negotiations for the payment of royalties for their use of others’ content.”
Also in Australia, Facebook, Google, and Twitter established a committee with independent oversight to combat online misinformation, he says, but only after the government threatened legislation to achieve that goal.
“These are all positive developments in the fight against misinformation and false and defamatory content,” says Winkler. “The pressure being applied to online platforms through court decisions and the threat of legislation forced social media platforms to self-regulate themselves in Australia.”
Returning to Facebook’s decision to allow Australian users to invoke a blanket disable feature, he says it’s in the social media giant’s financial interests to keep the comments “as the outrageous nature of the comments often leads to traffic and revenue.”
A news story on the issue states a Facebook spokesperson has said the controversy shows “how Australian defamation laws needed to be reformed.”
‘Facebook needs to reform itself’
“I think they’ve got it quite backwards. I think the move by the Australian courts shows how Facebook needs to reform itself to prevent the harm that its platform is causing,” says Winkler.
Citing another news article about a recent Australian court decision that found that owners of social media pages are “publishers” of comments made by third parties, he highlights a comment from two judges.
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“The [media companies] chose to operate public Facebook pages in order to engage commercially with that significant segment of the population,” it reads. “[Their] attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”
Winkler says “they were absolutely correct.”
“The net effect of all of this is that Australia’s proactive efforts – by way of legislation or the threat of legislation – and the application of traditional common law principles by their courts, is forcing positive change among platforms such as Google and Facebook,” he says.
Rest of the world should follow Australia’s lead
“And the real question is, ‘Why is the rest of the world not following Australia’s lead?’”
Winkler says that there is a global acknowledgment of the problems caused by the current functionality of Facebook, Google, and Twitter, though “no one besides Australia seems to have addressed it.”
Winkler says he does not know why Canada is not following suit, though from a jurisprudence perspective, “these issues have not yet come before our courts.”
“The Trudeau government has threatened to control social media platforms, but they’ve really done nothing of substance to deliver on that,” he says.
“Maybe there is a reluctance to take on these powerful platforms, which are richer than some of the countries in which they operate,” Winkler adds.
Free speech is not the issue
He says free speech is not the issue here.
“What we’re dealing with in most of these cases is low-value speech,” Winkler says. “It’s either misinformation or anonymous defamatory content, which is not nearly as important as the right to protect one’s reputation.”
He says he hopes Canada joins Australia in efforts to force online platforms to take responsibility for the content on their sites.
“Much of the world relies on Facebook for the dissemination of information,” Winkler says. “So Mark Zuckerberg, and others, have to be made to understand they are responsible for the defamatory and harmful comments that their sites allow anonymous users to freely post.”
