Australia Says Media Companies Can Be Sued Over User Comments On Facebook

It's no secret that Australia has taken a very different view towards intermediary liability than the US, saying (for example) that search engines can be responsible for search results it had nothing to do with, and even that they can be held liable if you are offended by the images that show up next to yours in an image search. So perhaps the latest such case in Australia shouldn't be a surprise. A court has ruled that media companies can be held liable for comments on their news stories. And not just the comments on their own pages... but on Facebook.

And the reasoning here is truly incredible. Because an "expert" testified that news sites could "hack" Facebook with a filtered list of common words to block comments, that magically makes them liable. No, really.

The judge wrote that each company had the power to effectively delay reader comments on Facebook and monitor if they were defamatory before "releasing" them to the audience.

This was based on evidence from social media expert Ryan Shelley, who testified that although you can't turn off comments on Facebook posts, you can deploy a "hack" to pre-moderate them.

Shelley's hack involves putting 100 of the most commonly used words in the English language ("a", "the", etc) on a Facebook filter list, causing any comment containing those words to be automatically hidden from the public.

Not doing that convoluted "hack" magically makes the news sites (not even Facebook) liable as a publisher for the comments. The judge's reasoning here is pretty incredible:

But Rothman found each company could reasonably monitor comments if they had sufficient staff to do so.

Rothman said that each media company running a public Facebook page had "little to do with freedom of speech or the exchange of ideas".

"Rather, the media companies’ use of a public Facebook page is about their own commercial interests," he said.

He acknowledged that "of course" it is the reader who writes the comment and posts it, but the media companies had brought about that result by running a public Facebook page where the comment could be seen, and by not hiding and moderating comments.

The comments are therefore published, for defamation purposes, by the media companies, he wrote.

"Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments."

This has shades of the awful Delfi decision in the European Court of Human Rights, that held that a publication could be liable for its comments, but this seems even worse, as it's not even comments on the news organization's own site. Even worse, the idea that news sites have to somehow "hack" third party sites to "pre-block" all comments seems insane. This seems like the mirror images of the US. This kind of ruling goes even beyond Stratton Oakmont v. Prodigy in the US -- the case that inspired Section 230 of the CDA.

It seems increasingly wise for internet companies not to offer any services in Australia, as the threat of liability extends so far as to be untenable.