6th Nov 2015
Having your reputation maligned online can have major consequences, but the way Australian law handled this issue last week could have a seriously chilling effect on freedom of speech, writes Sunita Bose.
This week is critical for the future of free speech in Australia but, based on an obscure and chilling ruling last week, that future could be bleak.
The Supreme Court of South Australia ruled in favour of Janice Duffy in a case against search giant Google that resumed this week. On its face, it appears like a triumph of David over Goliath, but, in reality, the implications could see Aussie underdogs silenced online more often.
The court ruled that Google was the publisher of posts accessible through the search engine, even though they were authored by other people. Janice Duffy had posted on The Ripoff Report about a bad experience she had with some psychics; those psychics then responded by alleging that Duffy had stalked and harassed them. This prompted Duffy to ask Google to remove the psychics’ posts from its search results because she considered them to be defamatory – a request that the search engine resisted until taken to court.
Now, I don’t profess to know the truth of what transpired in this she said, he said story. That’s the point – very few people, and certainly not staff at Google, are in a position to judge the truth of any of those claims.
Yet, the reality of Australian internet and defamation law – made worse by last week’s ruling – is that internet platforms can be forced to take sides in such battles, and silence online commentary.
Speaking out online can make the powerless more powerful and, for so many of those people, the stakes couldn’t be higher.
Earlier this year in NSW, a 14-year-old girl used Change.org to speak out about the domestic violence she had experienced that led to her mother’s suicide. Her heartbreaking petition gained over 100,000 signatures and resulted in statewide changes to the education curriculum: domestic violence will now be taught in all NSW schools, so students like her can seek help before it’s too late.
Some of the stories on Change.org are deeply private, while others involve alleged corporate wrongdoing, such as the current campaign against the insurer MetLife which has allegedly been delaying the payment of police officers’ insurance claims for serious health issues caused by their service.
Yet, had just one person objected to the accuracy of either of these petitions, Change.org might have been compelled to remove them.
That’s because Australia, like many countries across Europe and Latin America, has a “notice and takedown” regime in its “intermediary liability” laws, which means that social media platforms, service providers, and other internet services that enable people to upload and share content online may become liable for their users’ content as soon as they are notified that it may be defamatory.
You may ask why, of all the worthy causes in the world, is intermediary liability – something that sounds so intensely boring – so critically important? The answer is that the internet is now the arena for almost all important social, political, and cultural debates. If we’re not allowed to even acknowledge certain problems online, we can’t ever start to change them.
To be clear, having one’s reputation maligned on the internet can have deeply problematic consequences on people’s lives and livelihoods. Yet, the liability of that content should lie with the person who wrote it, as it does in the US. The intermediary should generally only be involved if that person is unreachable or anonymous, and they should only have to remove content that is proven to be defamatory. The worst part about Australia’s laws is that it’s not clear whether someone needs any proof to claim online content is defamatory, and to have it taken down from a website.
All that said, intermediary liability laws do play an important role in compelling internet platforms to act responsibly, by providing a legal incentive to act. And some regulatory pressure is good to ensure adequate corporate practice in the face of such challenges. For example, Australian law requires that internet platforms have restrictions on cyber-bullying in their policies, and a complaints mechanism where people can request the removal of content that harasses them – which are standard for socially responsible companies like Change.org.
However, overreaches under these laws can cause myriad of other problems, the greatest of which is that people will not have a safe space to speak out online.
The need for a change in such laws is gaining global momentum. Civil society organisations came together in March and outlined the Manila Principles for Intermediary Liability which argue that intermediaries should be given immunity over their users’ content, as they have in the US, and that content should not be restricted without a judicial order. The United Nations included the importance of global reform in this area in a report about rights to freedom of opinion and expression.
But last week’s ruling takes Australia in the wrong direction, and has a seriously chilling effect on freedom of speech. That case returned to court this week and we should be watching closely as it progresses, because it’s crucial that people can use the internet to speak out about injustice.