The reaction by Facebook to the consequences of a recent Australian court decision making social media platforms responsible for third-party comments shows how online defamatory content can be controlled. So why isn’t Canada doing the same thing?
Early in September, Australia’s high court ruled that online publishers such as Twitter, Google and Facebook were legally responsible for the comments added to their posts, even if the stories themselves were factual and accurate.
After that ruling, American-based CNN asked Facebook to craft a blanket disable feature so that the news organization could avoid any legal risk. Facebook refused, and offered to help CNN disable comments on posts one-by-one. Not satisfied, CNN responded by disabling its Facebook pages in Australia, forcing the social media giant to give in to CNN’s demands for a blanket disable feature in that country.
This is just the latest example of many where Google and Facebook have blinked in the face of external pressure. In February, Australia passed legislation that forced online platforms to pay for news content they use. Google threatened to leave Australia. When that failed to have any effect, they relented and entered into negotiations for the payment of royalties for their use of others’ content.
Also in Australia, Facebook, Google, and Twitter established a committee with independent oversight to combat online misinformation — but only after the government threatened legislation to achieve that goal.
These are all positive developments in the fight against misinformation and false and defamatory content. The pressure being applied to online platforms through court decisions and the threat of legislation forced social media platforms to self-regulate themselves in Australia, even though the outrageous nature of the comments leads to traffic and revenue.
Interestingly, a news story on the issue states a Facebook spokesperson has said the controversy shows “how Australian defamation laws needed to be reformed.”
I think they have it quite backwards. Instead, I think it is Facebook that needs to reform itself to prevent harm its platform is causing. The Australians are proving that such reform is possible.
An Australian court decision which recently ruled that online social media platforms are “publishers” of comments made by third parties — contained this insightful comment:
“The [media companies] chose to operate public Facebook pages in order to engage commercially with that significant segment of the population,” it reads. “[Their] attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”
This statement is absolutely correct.
Australia’s proactive efforts — by way of legislation or the threat of legislation — and the application of traditional common law principles by their courts, is forcing positive change among platforms such as Google and Facebook.
The real question is: Why is the rest of the world not following Australia’s lead?
There is a global acknowledgment of the problems caused by the current functionality of Facebook, Google, and Twitter, but only Australia seems to have addressed it.
I cannot understand why Canada is not following suit, though admittedly these issues have not yet come before our courts. Still, the Trudeau government has threatened to control social media platforms, but they’ve really done nothing of substance to deliver on that. Maybe there is a reluctance to take on these powerful platforms, which are richer than some of the countries in which they operate.
And to be clear, free speech is not the issue here.
Instead, what we’re dealing with in most of these cases is low-value speech. It is either misinformation or anonymous defamatory content, which is not nearly as important as the right to protect one’s reputation.
I hope Canada joins Australia in efforts to force online platforms to take responsibility for all the content on their sites. After all, much of the world relies on Facebook for the dissemination of information. Because of that, Mark Zuckerberg and others have to be held to account for the defamatory and harmful comments that their sites allow anonymous users to freely post.