Will This Twitter Case Change Australian Law?

News last week that Twitter itself was being sued by an Australian man could change our entire approach to social networking. QUT law lecturer Peter Black explains the legal issues involved.

Picture by Wilson Afonso

Twitter is being sued for defamation by a Melbourne man who was wrongly identified as the author of a “hate blog” directed at writer and TV personality, Marieke Hardy.

Hardy posted a tweet last year to “name and shame” Joshua Meggitt, the Melbourne man she incorrectly identified as the blog’s author, leading Meggitt to sue Twitter for defamation.

While Meggitt and Hardy have already apparently reached a (confidential) legal settlement, the broader issue of Twitter’s moral culpability and legal responsibility for allegedly defamatory tweets has now been brought sharply into focus.

This is the first time under Australian law Twitter has been sued for defamation, and it raises three interesting legal questions with respect to the liability of online intermediaries or platforms, such as Twitter, Facebook and YouTube.

1) It represents an application of the High Court’s reasoning in the case of Australian businessman Joseph Gutnick vs. the Dow Jones publishing firm. In that case, the High Court held that a cause of action for defamation arises in all places of publication. (That is, just because the Dow Jones is based in the US, it doesn’t mean Gutnick couldn’t bring the case to an Australian court.)

So even though Twitter is based in Silicon Valley, it can potentially be held liable for publication in Australia. This decision, while accepted law in Australia, has been very contentious overseas, particularly in the United States.

2) The case highlights the issue of whether disclaimers in the terms and conditions of various websites, such as the one on Twitter, provide legal immunity.

While such disclaimers will likely provide some protection, they will not provide absolute legal protection in all situations. Meggitt also has a strong argument in saying the terms and conditions will not protect Twitter against claims made by non-Twitter users.

3) It is one of the first cases in which the platform – in this case Twitter – rather than the person that actually made the defamatory comment has been sued.

This is novel because, in the United States, section 230 of the Communications Decency Act provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.

In Australia we do not have an equivalent immunity for platforms such as Twitter, Facebook or even Google. In Australia, platforms will have to rely on either the defence of innocent dissemination or schedule 5, clause 91 of the Broadcasting Services Act 1992 to avoid liability.

While both these provisions will clearly apply to internet service providers, they are unlikely to extend to provide immunity to platforms such as Twitter or Facebook. That means that, under Australian law, it is possible that platforms such as Twitter and Facebook could be held liable for posts made by their users.

If that is indeed the result in this case, Australian defamation law will need urgent reform. Online intermediaries and platforms should not be held liable for the actions of their users.

It is simply not practically possible for these platforms to filter all the content posted to these sites. If the law did require platforms to do so, they would either be forced to pass the considerable costs of doing so on to their members, withdraw from Australia altogether or change the very nature of their platform.

Moreover, if Australian law did place this burden on platforms, such a regulatory framework would be a powerful disincentive to innovative new services being developed and based in Australia.

The simple solution could be that, where defamation takes place on the internet, the individual who posted those defamatory remarks should be held responsible. Alternatively, if the legislature wishes to impose an additional level of liability upon online intermediaries and platforms, it should do so only where such an intermediary and platform fails to take account of a defamatory comment once they have been given notice.

A notice and takedown regime has similar antecedents in existing legal frameworks. With respect to copyright, the US Online Copyright Infringement Liability Limitation Act (a part of the DMCA) and section 116AG of the Australian Copyright Act 1968 limits, in certain circumstances, the remedies available against carriage service providers to taking down infringing material, terminating a specific account and/or disabling access to an online location outside Australia.

With respect to defamation, Australia already has detailed provisions for offers to make amends. A scheme of this nature has the potential to protect an individual’s legal interests while fostering collaborative communication on the internet. It is a potential reform that deserves further consideration.

In essence, the law is still struggling to keep up with rapid advances in technology over the past few decades, and this case has the potential to expose some weaknesses in Australia’s existing defamation law with respect to online intermediaries and platforms.

It will definitely be a case to follow (both on and off Twitter).

This article was originally published at The Conversation. Read the original article.


Comments

    "... Rapid advances in technology over the past few decades."

    In terms of the internet advances, 30 years is SLOW..!

    I find it odd the same US law that finds it contentious to have an overseas company face courts here will happily extradite someone from the UK to the US for doing something that was found to be legal in their courts.

    I certainly agree we need reform, but the US seem to think they have the right to guard law over the internet and things that happen on it, which is an even more dangerous issue.

    If the man wins, this will let people sue car companies because the person got drunk and ran into someone else's car.

    Now if Twitter had started the name and shame tweet, or failed to act when asked to remove the tweet, that's different.

      Yes, cause that has a lot to do with defamation. Lets try and keep it reasonable here.

    This defiantly needs to change as this could be expanded to not only relate to services such as Twitter or Facebook, but to any site that allows user contributed content. If I was deface somebody or something in this comment right now should the owners of lifehacker be held accountable?
    The censorship of the internet is fast becoming a major problem and governments need to have some common sense when creating legislation.

      It's funny, because the same laws that keep online platforms responsible for their content are the ones that stop Australian-based piracy sites. It would be hilarious to see a knee-jerk reaction creating a broad, sweeping law that granted online platform owners immunity from the actions of their users. Piracy would run rampant for a while...

    If I use this comment to call Lifehacker a bunch of lying a$$holes (I wouldn't, I love you guys!) can you sue yourself?

    What's next?

    When someone calls you a son of a b*tch for cutting them off on the freeway, sue the state gov't for providing a roadway that would allow someone to defame my mother?

    Both of these people should be ashamed of themselves for being so petty.

    1. Create fake twitter account
    2. Defame self through fake account
    3. Sue twitter for defamation
    4. ?????????????
    5. Profit!

    If this case flies, essentially every internet service provider from facebook to twitter to myspace will have to evaluate if it's worth staying in business in Australia. Is the projected revenue from Australia's relatively small market worth the liability created by offering services here or the overhead of trying to ensure that nobody uses their services to say anything that they're liable for?

    I frankly can't see how it wouldn't be cheaper to just block facebook to Australian IP's than to try and manage their liability.

    This is what Australian law is all about. It is flexible enough to change when required. This is one of those times in which it is required. When a case like this comes up that is pretty straight forward, that is twitter should not be held responsible under natural law. Then the parliment if near forced to evaluate current legislation and a reform should be put in place. The consequences of not doing so would be too large and would set presedent for far too many cases.

    In case anyone hasn't noticed there isn't any significant Australian based social networking sites - perhaps this is one of the reasons why? On another note, the legislative regime in Australia is one of the primary inhibitors to innovation with many tech companies simply going to the US. Shame really...

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