Australian defamation ruling threatens media companies

Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer

Earlier this month, an Australian court issued a decision in a long-running defamation case: the judges ruled that Dylan Voller, who filed the case in 2017, could proceed with a defamation lawsuit against a number of Australian media outlets, including Murdoch-owned The Australian and Sky News. Not that unusual. Except that Voller isn’t suing these news companies for things they printed or broadcast about him, he’s suing them for things that Facebook users said in comments that appeared on the Facebook pages of those media companies after they linked to news stories about him. In effect, the Australian court said these media outlets are legally responsible for the comments their readers left on those posts, even if the companies were unaware of their existence. The chilling effect of this decision has already been felt even outside Australia: according to a report in the Wall Street Journal on Tuesday, CNN says it will shut off all public access to its Facebook pages in Australia because of the ruling.

The decision states that “the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments,” and therefore liable. The judges added that an attempt by the media companies to portray themselves as “passive and unwitting victims of Facebook’s functionality” was not credible. “Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences,” the court said. It’s worth noting that the decision isn’t a lower-court ruling that might later be reversed: Voller won the original case, giving him the right to sue the companies; an appeals court upheld that decision in 2019, and that in turn was appealed to the country’s highest court, which issued the latest ruling. Five of the seven judges hearing it agreed with the majority.

When news of the decision was first released, some speculated that media companies might shut down their comments, or even their entire Facebook presence, for fear of being caught up in similar lawsuits. CNN appears to be the first, but it may not be the last. The media company reportedly asked Facebook for help in turning off comments on all of its posts in Australia, but the social network refused. Until recently, Facebook didn’t allow comments to be turned off on pages, presumably because they are a significant source of user engagement. It introduced the ability to do so in 2019, after the original Australian court decision in the Voller case, but comments have to be disabled on a post by post basis, rather than across all of a publisher’s pages.

Dave Earley, the audience editor for the Australian version of UK’s Guardian in the UK, said that the newspaper plans to shut off comments on any story that is controversial.
“We won’t post stories about politicians, Indigenous issues, court decisions, anything that we feel could get a problematic reaction from readers,” he said. This seems advisable, except that in the current polarized social and political climate, almost any story could be controversial enough to trigger hateful comments. As Earley noted, Facebook is not interested in making it easy for page publishers to shut off comments because “it’s to their benefit for there to be comments on everything.”

While the Australian ruling might be used as precedent in countries that used to be part of the British commonwealth such as the UK and Canada, since their legal traditions are similar, it’s unlikely to affect the US—at least not right away. Social networks and publishers are protected from that kind of liability by Section 230, a clause in the Communications Decency Act of 1996 that says “interactive service providers” are not responsible for anything posted by their users. That might seem like ironclad protection, but Section 230 has come under fire from both Democrats and Republicans—the former because they feel social networks don’t take down enough disinformation, and the latter because they feel these services censor too much.

Here’s more on defamation and the internet:

Defamation: In a piece about the Australian high court ruling, David Rolph, an Australian law professor, pointed out that while the decision might open the door to more such defamation lawsuits, Australia has also recently updated the law surrounding defamation, which could make it more difficult for cases like Voller’s to succeed in proving defamation. The new laws raise the bar for proving that defamation has occurred, requiring that plaintiffs show that they have suffered “serious harm” as a result of the comments, and they also provide a defense for material that is considered to be “in the public interest,” which could apply to news stories.

Malicious: Josh Benton at the Nieman Journalism Lab, wonders what the impact might be if a malicious actor—like Silicon Valley investor Peter Thiel, who financed the lawsuit that bankrupted Gawker Media—decided to pursue defamation lawsuits against other companies. “I don’t expect a ruling like this in the United States anytime soon,” Benton says. “But other countries across Europe and Asia? It’s easy to imagine — especially in less-free countries where the man who lives in the palace would be happy to open up independent media to a whole new genre of lawsuits.”

Right and left: CJR invited a wide range of legal and technology experts to do a series of online interviews about Section 230 using our Galley discussion platform following a number of related developments, including an attempt by Senator Amy Klobuchar to amend Section 230 in order to make social networks like Facebook liable for spreading medical disinformation about the COVID pandemic. A group of Republican members of Congress have also proposed their own “carve-outs” to the law, which they hope they can implement to reduce Section 230’s protections for certain things, including the removal of conservative speech by social platforms.

Other notable stories:

Ozy Media’s board has started an investigation into allegations contained in Ben Smith’s recent New York Times media column, including the fact that the company’s chief operating officer impersonated a YouTube executive during a conference call with Goldman Sachs about funding. Ozy’s COO has been placed on leave while the investigation is underway. In other Ozy-related news, Katty Kay, a former BBC anchor who recently joined the company, has resigned, calling the allegations “serious and deeply troubling.” And Ron Conway, an early investor from Silicon Valley, has renounced his investment and returned his shares, according to a report from Axios, which said this was an “extremely rare” move for a VC firm.

The Chicago Sun-Times and Chicago Public Media, the parent company of radio station WBEZ, have confirmed that they are talking about a potential merger, according to a report from Chicago media columnist Robert Feder, who first reported the rumors about such talks on Wednesday. “In separate emails to their staffs, the chief executive officers of the Sun-Times and Chicago Public Media acknowledged their negotiations,” Feder wrote. Matt Moog, interim CEO of Chicago Public Media, said in his memo that the proposed merger was “an important part of our commitment to serving Chicago and ensuring local news continues to thrive.”

YouTube said it has banned a number of users who regularly post anti-vaccination content about COVID-19, including the account belonging to Robert Kennedy Jr., and also said it will block any videos that claim vaccines don’t work or are harmful, the Washington Post reports, including both COVID vaccines and those for measles and chickenpox. On a related note, Russia has threatened to block YouTube from that country after the Google-owned video-hosting service banned two German-language channels managed by Russia’s state media company RT that were deleted after they published what YouTube said was misinformation about COVID-19 vaccines.

A recent New York Times story on crime statistics was too credulous about reports of an increase in crime during COVID,in part because the story was based largely on police sources, according to a Twitter thread from Alec Karakatsanis, founder and executive director of Civil Rights Corps, a Washington DC-based nonprofit. The story “suggested falsely that police prevent murder and that one reason for increased murders during a global pandemic was civil rights criticism of police,” Karakatsanis said, adding that the author previously worked as a paid police consultant.

Isha Sesay, a former CNN journalist and chief executive of OkayMedia, has co-written an op-ed on CNN as part of a campaign to bring attention to the civil war in Ethiopia’s Tigray region. Her co-authors include Liz Agbor-Tabi from Global Citizen, Masai Ujiri of the Toronto Raptors, and Gbenga Akkinagbe, an actor. The piece describes how “thousands of Ethiopians have been killed in the conflict, and there is evidence of massacres of the innocent.Two million people have been displaced, more than 350,000 are facing famine, and millions more are in need of emergency food aid.”

Meedan, a technology nonprofit that helps build tools for journalists, is launching a new initiative called Fact Champ to address misinformation in Asian American and Pacific Islander communities, in partnership with the Annenberg Public Policy Center of the University of Pennsylvania and its project; the University of Massachusetts Amherst, University of Connecticut, and Rutgers University; and AuCoDe, a start-up that uses artificial intelligence to detect and analyze disinformation.

Former Columbia University fellow and CJR contributor Akintunde Ahmad is co-hosting Viewer Like Us, a multi-episode podcast focusing on systemic inequality within the public media system, specifically public television. The series stems from concerns raised by the podcast’s original host, Grace Lee, a Peabody-winning independent filmmaker who called out PBS’s overreliance on documentarian Ken Burns in a fall 2020 essay for the Ford Foundation.

Digiday has a Q&A with new Fortune magazine editor-in-chief Alyson Shontell in which the former Business Insider editor talks about whether she plans to keep the print version of the magazine, and her desire to bring more data to the newsroom. “We can put more data into the hands of the newsroom to inform them, guide them and help them pick the stories that have the most impact and that people care about,” she says. “More visibility with data is important. It helps the newsroom measure success in a way where they feel what they’re writing about is sustainable.”

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