Australia proves that Google and Facebook can be tamed

Proposed legislation in Australia to make Facebook and Google responsible for policing defamatory material on their sites is rather draconian, but I suspect it will lead to a reasonably balanced compromise that the rest of the world will want to follow.

Australia is looking at forcing online platforms to reveal the identities of people with anonymous accounts if another person complains that the material they posted is defamatory. If the online platform refuses to do that, they would assume legal liability for that material jointly with the account holder. This is based on traditional legal principles that in general anyone who is involved in the publication of false and defamatory material shares liability for any damages suffered.

Another part of the proposed legislation would make social media operators legally responsible for defamatory comments beneath publishers’ posts on their platforms.

Both initiatives are commendable in their attempts to allow people to protect their reputations. However, there are problems with both initiatives, which are easily cured.

Some online anonymous speech has value

First, there are sometimes legitimate reasons for not disclosing someone’s identity online, such as in the case of a whistleblower or the victim of abuse. Take away their anonymity and you take away their willingness to expose what could be the criminal actions or misconduct of another person or company that it is in the public interest be disclosed.

As far as making online platforms responsible for each and every comment on their sites, consider that Facebook has more than 2.8 billion users worldwide. It is easy to see why the task of monitoring every comment is simply beyond the realm of reality or reasonableness. So too is imposing liability on them for every post.

While the blanket liability being proposed in Australia goes too far, legislators can look elsewhere to find a more practical and well-balanced solution – such as Ontario.

In its 2020 report, Defamation in the Internet Age, the Ontario Law Reform Commission proposed a workable solution, which Ontario has so far not acted on. The commission recommended that if alleged defamatory content is posted, the complaining party can electronically advise the online provider of their objection to the post. The platform would then inform the original poster of the objection and give them a short period of time to respond. If there is no response, the post would be automatically taken down. 

An easy way to control hateful comments

This simple procedure, which can be carried out electronically without any human intervention, will eliminate much low value and harmful speech from the Internet that the original poster is not prepared to defend.

On the other hand, if the person who originated the post believes the material is not actionable and wants it to remain online, the platform would have an obligation to retain and safeguard the identity of that person in the event of future litigation. Their name would not be disclosed to the complainant, thus at least initially protecting the identity of a whistleblower or victim. If a legal action is then launched, a court would decide whether it is in the public interest to disclose the identity of the poster.

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Checks and balances provided by the court is the key advantage of this proposed system, as compared to the blanket disclosure obligation being promoted in Australia.

Only if the service provider fails to give the notice to the original poster or fails to preserve information as to the identity of the poster, would imposing liability on the service provider makes sense.

Maybe it’s time to turn off Facebook comments

Perhaps we must also ask ourselves if it is time to turn off the comments on Facebook. Most represent low-value speech, do not advance the public interest and present the potential for great harm. That is already happening in the mainstream media, where comments are either turned off altogether for some types of stories, or the outlet requires the poster to register and provide their full name and identification before leaving a comment.

If we did something similar across social media, it is likely low-value speech would either disappear or people’s language or comments would be tempered.

Still, I commend the Australian legislators for having the guts to advance this legislation. They are miles ahead of other jurisdictions such as the United States and Canada, which have talked about the need to regulate social media but have failed to do anything constructive.

Australian Prime Minister Scott Morrison is quoted in media reports as saying that if Facebook left Australia over the new law, that “would be an admission that they have no interest in making the online world safe.”

Precedent of liability will help

I wouldn’t go that far. I believe Facebook and other online players need financial motivation to act. The legislation proposed by Australia, or the Law Reform Commission, will provide that incentive. Only once we develop some precedent of liability on platforms and posters, will people start to change their behaviour.

To return to Australia, I’m betting the current legislation will be watered down to create something that is more nuanced and balanced, that recognizes the value of controlling defamatory speech while protecting the right to anonymous expression. Once they achieve that, Canada should get on board with similar legislation.

• Howard Winkler is the founder and principal of Winkler Law. For over 35 years, his areas of practice include media law, libel, slander and reputation management.