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Intermediary liability protections in Australia suffer major setback after court rules against news publishers

The ruling by Australia’s apex court could have severe implications on intermediary liability jurisprudence everywhere.

In a significant blow for intermediary liability protections in Australia, the country’s High Court (which is the country’s topmost court) ruled on September 8 that news organisations that post their articles on social media are responsible for comments on those social media sites as though they had published them. “An action for defamation does not require proof of fault. Defamation is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care,” the full bench of the High Court decided. “A publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it.” The case is an appeal of Dylan Voller v. Fairfax Media, Nationwide News, and Australian News Channel Pty Ltd.

Intermediary liability is the responsibility an intermediary holds for content that is published through it. In technology, intermediaries are generally protected from liability for user-generated content, as long as they take content down when told to do so. But cracks are emerging in these protections all around the world. Australia’s new interpretation — that news organisations are as responsible for the words of commenters on their social media profiles as they are for the news they publish — is bound to open a can of worms on intermediary liability jurisprudence in the country.

Implication of judgement

“The Court of Appeal was correct to hold 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,” the High Court’s majority ruled. In the context of this case, all this means is that the individual, Dylan Voller, can sue the news publishers in question, even though these remarks came from social media users.

News organisations have cause for worry even if they win the subsequent defamation suit. The High Court’s ruling sets a precedent: Now, not only are news organisations responsible for comments from users on their own website, but also for comments that are posted on social media sites like Facebook, where they may by default not be able to pre-screen comments as they do on their own website’s comment section.

Intermediary liability protections shrink

It’s not clear if other countries will want to follow in Australia’s footsteps on this interpretation of law. But the deniability social media companies have over user content is shrinking.

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In the US, Section 230 of the US Code (a part of the Communications Decency Act), provides vast cover for intermediaries, and is under fire from both Republicans and Democrats. Former US President Donald Trump tried to narrow how this section was interpreted, but his efforts didn’t reach Congress before he was voted out of office. Current president Joe Biden told the New York Times that he wanted the law repealed altogether.

In India, the Information Technology (Intermediary Liability and Digital Media Ethics Code) Rules, 2021 were notified in February, and that law includes requirements that large social media platforms appoint grievance officers, nodal officers, and law enforcement liaisons, and respond quickly to government takedown notices on a wide range of issues, lest they lose the protection from liability the law grants to intermediaries. Different parts of the IT Rules are under challenge in 19 different court cases across the country, and the government has appealed the Supreme Court to hear the cases together.

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I cover the digital content ecosystem and telecom for MediaNama.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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