Online publishers beware, Europe wants to shoot the messenger

Review sites like TripAdvisor could become liable for any fake reviews they host under a new crackdown in Italy. scanna283/Flickr, CC BY-NC-ND

The internet is an endless source of information. But who is liable if the information is wrong or, at least, misleading?

Existing laws on publishing, information and privacy were not designed for the internet. Authorities around the world are applying old rules to new technology. Some rules can be adapted. In Australia, for example, the High Court clarified that search engines, like Google, have similar protections to publishers, like Fairfax.

But this common-sense result is the exception. Instead, internet companies are finding themselves hog-tied by legal process and costs.

For example, competition authorities in Italy are investigating TripAdvisor over “fake reviews”. TripAdvisor allows individuals to post reviews about restaurants, hotels or attractions. It is an invaluable resource for tourists.

Unsurprisingly, however, some parties post reviews on TripAdvisor that are self-interested. A hotel owner may post favourable reviews of his or her hotel. Restaurant employees may post unfavourable reviews of their rivals.

These fake reviews harm TripAdvisor’s reputation. It has procedures to try to identify and remove them, but some will get through. TripAdvisor’s business model depends on crowd-sourced information, and the company cannot perfectly check everyone in the “crowd”.

Fake reviews raise two legal issues for TripAdvisor. First, TripAdvisor needs to be careful how it promotes itself. It can’t guarantee that its reviews are all “genuine” and it has previously been investigated in the UK for making such claims.

Second, fake reviews may mislead consumers. So who is liable for this misleading and deceptive behaviour?

The Australian Competition and Consumer Commission (ACCC) has taken a common-sense approach. The fake reviewer is liable, and the ACCC has taken action against those who post fake reviews.

However, Italian authorities may want to go further and make TripAdvisor liable for fake reviews. TripAdvisor cannot perfectly prevent such reviews and consumers need to be aware of the potential for fake reviews. But if TripAdvisor is made liable for fake reviews or has to ensure that all reviews are “genuine”, its business will be unviable. In their haste to protect a few consumers, over-zealous competition authorities could make many other consumers worse off.

If the Italian authorities follow the ACCC’s lead, then it will be a good outcome. But if the Italian regulators go further, then they could harm, not help, many consumers.

Interventionist approach

As two recent decisions highlight, the Europeans appear to be favouring strong internet intervention.

Two weeks ago the European Court of Justice determined that individuals have a right to require search engines to remove links to some information. The information may be true, but if it violates a “respect for private life” or a “right to protection of personal data” then the search engine is obliged to sever the link.

This decision has been called a “right to be forgotten”. But the ruling applies to the search engine, not the newspaper that has a web page with the information. So the “right” is really a constraint on search engines. The information is true, public and exists on the internet. But a search engine is not allowed to find it for you.

This decision is the internet equivalent of “shooting the messenger”. Don’t fix the source of the information. Stop the person who allows you to find it!

Similarly, the European Court of Human Rights recently considered the requirement for news sites to monitor (and remove) comments on stories. In the case of Delfi AS v Estonia, the Court decided that:

“If a commercial website allows anonymous comments, it is both ‘practical’ and ‘reasonable’ for it to be held legally responsible for the contents of those comments.”

The internet as ‘co-author’

This decision goes further than simply requiring that websites act quickly to remove (for example) defamatory comments. If a website is publishing an article that may lead to such comments, it must monitor anonymous comments and is liable if any harmful comments are posted.

The decision may spell the end of anonymous comments because monitoring, for large news sites, is expensive.

Some may say “good riddance”. But the ruling reflects a bias towards controlling websites rather than placing the onus on those who use the website. It is moving away from the internet as publisher, as in the Australian High Court decision, to the internet as co-author. Website owners are becoming liable for the actions of users of their website, whether those users are posting misleading reviews, looking up information that others prefer to forget, or ranting in an anonymous comment.

More broadly, these European decisions reflect a split in the application of law to the internet. Some jurisidictions, like Australia, are requiring that users of websites are responsible for their actions. If an individual or company posts a misleading and deceptive fake review, then that individual or company is liable.

Europe, in contrast, is placing the responsibility on the website itself.

This split wouldn’t matter except that the world wide web is, well, world wide. European laws that restrict websites will affect Australian users of those websites. Having sensible legal interpretation in Australia will not save us from the impacts of interventionist policies overseas.