Opinion

Richard Ackland
Judges v The Internet

Judges, like everyone else, use the internet ferociously, which makes their hostility to it a modern-day conundrum. Their application of ancient judicial precedents to an evolved and different world is cockeyed, let alone unhelpful.

Last month the High Court, in a five-two judgement in Fairfax v Dylan Voller, told us that news organisations are liable for defamatory comments posted by readers on their Facebook pages.

This is so even if the comments had not been approved, may well have been irrelevant to the news item, indeed may not have been prompted by the media story at all.

The court stuck to its well-worn rule book about “publication” – inspiringly drawn from a 1928 judgement by Sir Isaac Isaacs dealing with an agent drafting a defamatory circular, on behalf of others, about litigation concerning wheat spoiled by mice.

Needless to say, it was a judgement conceived before the internet and social media and with very little relevance to either.

The thinking of the majority judges at the Last Chance Saloon is that if someone facilitates or invites comments then they are responsible for them, regardless of their non-involvement otherwise.

As media law barrister Matt Collins, QC, observed after the Voller decision, the High Court missed an opportunity to get to grips with the way communications operate in the online era. It would be hard to imagine that critics of “activist judges” would complain about updating a ruling nearly 100 years old in order to make intention and deliberation the essence of liability for publication.

The mainstream news companies put their stuff on social media platforms because they believe it might help expand their readership, an important consideration at a time when the economics of publishing is precarious.

It’s saying something that even the really conservative judges on the High Court, James Edelman and Simon Steward, found the majority in the Voller case too conservative for their liking.

In an attempt to temper the majority’s antediluvian approach, Steward warned of “floodgates” and suggested that “prior knowledge of defamatory content” might be relevant.

Likewise, Edelman played with confining liability to “sufficiently connected” comments and mused that publication had to be done intentionally to give rise to liability. He also mentioned something about “passive publication” – by which stage we’re in the zone of angels on pinheads.

Media law academic Michael Douglas thought the decision might be just the thing to dry-clean social media commentary or “improve the quality of our public discourse”.

There seems fat chance of that, now that the mainstream news publishers are in bed with Google and Facebook – with deals hatched in the shadow of the News Media and Digital Platforms Mandatory Bargaining Code.

Media analyst Hal Crawford has written in the British publication Press Gazette that these secret arrangements between the tech platforms and the main news publishers are designed to benefit the Googles and Facebooks of the world by heading off more regulation and the eye-watering amounts that would be possible if ever payment for links was mandated.

The United States-based behemoths can pick and choose who to pay while support for public interest journalism is not their priority.

Conveniently, news that engenders divisiveness also creates plenty of inflammatory comments and therefore clicks and views galore, particularly of advertisements. “Stickiness” and “engagement” are the key elements of the organising philosophy of social media companies, never mind the misinformation.

In the wake of Voller, some are switching off the comment functions on their Facebook pages. CNN has done it in Australia and, notably, so too the premier of Tasmania, Peter Gutwein. He said that even though comments on his page were monitored, sometimes unfortunate things slip through. Here’s hoping the world will be a better place without comments about Gutwein and his government.

The High Court decision can hardly discourage the posting of anonymous bile from third parties if someone else is deemed to have responsibility for them. It’s hard to sue anonymous people and harder still to sue Google and Facebook, whose status as “publishers” is uncertain. Conceivably they are like “dumb pipes”, akin to telephone companies or postal services.

As if Voller isn’t enough of a contentious, unhelpful and stuck-in-the-mud piece of judicial thinking, there’s more to come.

The next cab off the rank is solicitor George Defteros’s case against Google in relation to its search engine pointing to apparently defamatory content on other websites.

Defteros has acted for underworld figures in Melbourne. In 2004 he was charged with conspiracy to murder Carl Williams. The charges were withdrawn a year later.

Defteros sued Google over its search results in relation to articles in The Age, a montage of photographs and a Wikipedia entry about the Melbourne gangland killings.

The case trundled through the Victorian judicial food chain, with the same outcome as Voller – Google was liable for third-party content even though it had not written or provided these online entries.

This is so even though the search information itself is not defamatory and may be achieved by Google’s algorithmic “auto complete”.

The Victorian appeal judges approved of a quaint analogy used in an earlier Google case – that a search result is the electronic version of “the person who places a post-it note on a book which reads ‘go to page 56 to read interesting gossip about X’.”

In this way Google is seen by the judges as a facilitator and therefore a participant as a publisher. Again, the 1928 case about the circular dealing with the wheat-mice litigation, drafted by an agent of the defendants, miraculously came to Defteros’s aid.

Disturbingly, in relation to defences pleaded by Google, the Victorian appeal judges thought the search engine is not a service for the “common convenience and welfare of society” nor was it enough that the search result was a matter of public interest.

This might be a revelation to the countless millions who each day rely on search engines for research, social interaction, commercial activity and the functioning of a modern world.

The High Court will hear the final appeal on this sometime soon; but having decided Voller in the way it did, there seems to be only one outcome. What this means for the future of fearless online searches is anyone’s guess but seemingly not a deep concern of the judges.

The High Court made a mess of it in an early encounter with the internet, in the case brought by Melbourne businessman Joseph “Diamond Joe” Gutnick against Dow Jones, publisher of the online and print subscription journal Barron’s.

Dow Jones said its servers were in New Jersey, but Gutnick was suing in Victoria. The issue then was where did the publication take place and the High Court in December 2002 decided it must be Victoria, because while the article may have been uploaded in the US it was downloaded in Victoria.

Support for this was drawn from ancient authority, the Duke of Brunswick’s case of 1849.

The duke had heard that embarrassing stories had been published about him nearly 20 years earlier in The Weekly Dispatch, to the effect that he was excessively depraved and “a perfect Nero”.

The High Court of Australia thought that downloading an article from the internet was akin to retrieving an old copy of The Weekly Dispatch from newspaper archives. Conceivably, then, countless defamations could arise from the single occasion something was uploaded.

This decision, aberrant in the modern era, was set to rights 18 years later in the 2020 defamation law reforms, which say that publication in any electronic form takes place from the time of upload, generally for a one-year limitation period.

It’s interesting that the George Pell verdict contempt case in Victoria focused on Australian news media companies and editors that published vague headlines about the outcome of the cardinal’s child sexual assault case.

People could read the details of the verdict – later overturned – in The New York Times and other offshore global online newspapers, but it was the Australian media that got a good spanking because they are within reach of the jurisdiction.

Judicial powers go only so far. And that applies to the internet intermediaries. The ones based in the US are well protected, by the Communications Decency Act and by the First Amendment.

The US legislation says providers of internet services shall not be liable for other people’s content. The Broadcasting Services Act in Australia says state or territory laws have no effect if they subject internet content hosts to liability, without notice.

This is pertinent to another example. Last week, Barnaby Joyce said his daughter was the subject of recent gossip on Twitter and called for a crackdown on the intermediaries, who he seems to regard as publishers, at least that’s what he might mean if an article he wrote for The Sydney Morning Herald and The Age is careful parsed.

“The public has got to stop falling for the fable that it should just keep lending the car to people who run over pedestrians, while screaming obscenities and medical advice from the window.”

Prime Minister Scott Morrison said that his government would be “leaning further into this issue” where the media giants are providing a “coward’s palace” for anonymous trolls.

But it’s uncertain precisely what they have in mind – possibly even to them. This is especially true when the tech giants are so beyond reach, courtesy of laws in the US and an army of log rollers on Capitol Hill. 

The Saturday Paper has licensing deals with Google and Facebook. Following the Voller decision, it is closing comments on Instagram and Facebook.

This article was first published in the print edition of The Saturday Paper on Oct 23, 2021 as "Judges v The Internet".

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Richard Ackland is The Saturday Paper’s legal affairs editor. He publishes 500Words.com.au.