Free speech has always held a precarious position in Australia which does not have an equivalent to the First Amendment in guaranteeing free speech as a constitutional right. Despite this history, a new decision out of the High Court is still shocking in its implications for further attacks on free speech. The court ruled that newspapers and television stations that post articles on social media sites like Facebook are liable for other third party comments on those posts. The ruling, if replicated in other countries, could accelerate the censorship of viewpoints on the Internet.
The case was brought by Dylan Voller, who was detained in a juvenile detention center. Voller has a long criminal history and over 200 prison incidents. The shocking footage of Voller shackled to a restraining chair within the adult Alice Springs correctional center caused an uproar in the media. However, it also led to criticism of his own history in comments.
Some of us view free speech as a human right or a natural right. Australia however has never embraced such notions or even the claim of a guaranteed right of free speech as we know it in the United States. A High Court justice recently dispelled such notions by writing that free speech is largely an aspirational value rather than a protected constitutional right.
In this case, the High Court of Australia found that media companies, by creating a public Facebook page and posting content on that page, facilitated and encouraged comments from other users on those posts. In doing so, the Court held that they could be liable as publishers for the purposes of defamation. Justice Rothman wrote “The acts of the (media companies) in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.”
The ruling will magnify pressure on these companies to censor comments or eliminate comment sections entirely on the Internet. Of course, if there is defamation, Voller can sue those posters. Indeed, courts now routinely allow discovery to strip away anonymity in lawsuits. Understandably, some trolls and anonymous posters hide their identity but the price for combatting such posters through defamation is prohibitive for free speech.
American courts have long recognized that broad defamation rule are inimical to free speech. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. As such, public officials and public figures must show either actual knowledge of its falsity or a reckless disregard of the truth.
In addition,Section 230(c) of the Communications Decency Act of 1996 provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(e)(3).
This has long been a controversial element under the FCA because it was largely the result of judicial not congressional construction. We discussed this issue in relation to the Sixth Circuit’s arguments in Jones v. Dirty World Entertainment. A gossip blog, The Dirty, appealed the decision of U.S. District Judge William Bertelsman that the site is liable of defamatory statements by third parties and cannot claim immunity under the Communications Decency Act, 47 U.S.C. § 230. The site was sued by Sarah Jones, an ex-Bengals cheerleader and a former high school teacher in northern Kentucky, who was libeled on the site by commentators.
The jury hung in the first trial of this case, which necessitated a second trial. The second jury returned a verdict for $38,000.00 compensatory damages and $300,000.00 punitive damages.
Bertelsman rejected the argument that it barred recovery in the case. The district court drew a distinction between third party postings or comments that appear without solicitation or encouragement and this type of site that actively seeks such comments. The court noted a number of decisions limiting CDA immunity including a decision by Judge Easterbrook of the United States Court of Appeals for the Seventh Circuit, who wrote in Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008), that the CDA does not provide “a grant of comprehensive immunity from civil liability for content provided by a third party.” Easterbrook ruled that Craigslist was entitled to protection but noted that “[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination.” Id. at 671-72.
The district court held that
“Although Courts have stated generally that CDA immunity is broad, the weight of the authority teaches that such immunity may be lost. That is, a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a “creator” or “developer” of that content and is not entitled to immunity.”
However, the Sixth Circuit vacated the district court’s decision with instructions to enter judgment for Dirty World. The Sixth Circuit held that the district court erroneously applied an “adoption or ratification test” on determining if immunity existed. It instead favored the material contribution test from Fair Housing Council of San Fernando Valley v. Roommates.com, LLC.
Notably however, in that case, then Chief Judge Alex Kozinski wrote for the en banc court that Roommates.com was not immune under Section 230(c) because the website qualified as an information content provider: “Roommate created the questions and choice of answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the ‘information content provider’ as to the questions and can claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services.” The court found that “Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of the information. And section 230 provides immunity only if the interactive computer series does not ‘creat[e] or develop’ the information ‘in whole or in part.’”
We have previously discussed the opinion in Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997) where Chief Judge Wilkinson wrote for the Fourth Circuit:
By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.
The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.
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None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” Id. § 230(b)(5). Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.
Past CDA decision have been sweeping in the extent of the immunity, even from reluctant judges as in Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
This is a case involving a major issue of political and public debate. Defamation, as addressed din NYT v. Sullivan, can have a major impact on free speech by exposing publishers to endless lawsuits and liability. The High Court simply brushes aside such concerns. If companies are liable for third party comments, they will use the ruling to engage in even greater levels of censorship. The result is that the internet, which was the greatest invention for free speech since the printing press, will continue to be confined by criminal and civil liability rules.
Some are calling for a legislative fix for this opinion. However, the most chilling aspect of the opinion is how dismissive the court appears in weighing free speech values in such cases.