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Facebook chief executive Mark Zuckerberg
Andrew Harnik/AP

This is why Australia may be powerless to force tech giants to regulate harmful content

If some anonymous troll went after one of my children, I’d be livid. And if my colleagues supported me, I’d thank them.

So, on some level, I can sympathise with Deputy Prime Minister Barnaby Joyce when he railed against the rumour-mongering on social media that targeted his daughter earlier this month.

Prime Minister Scott Morrison and Communications Minister Paul Fletcher, who has recently authored a book on these matters, backed him in.

The Coalition leaders have taken aim at the social media giants, claiming they should take greater responsibility for false and damaging content on their sites, including by identifying offenders. Should they not comply, Morrison argued,

they’re not a platform anymore — they’re a publisher … and you know what the implication of that means.

Difference between platforms and publishers

What is the difference between a publisher and platform? And what exactly are the implications, under Australian law, for US-based social media companies like Facebook and Twitter when it comes to false and harmful content being posted to their sites?

The main difference between the two is that one is shielded from defamation actions in Australia (platforms), while the other is not (publishers).

Complicating matters, in a landmark ruling last month, the High Court said media companies and private individuals – but not the platforms themselves – can be treated as publishers of both the content they post and comments that are posted in response. As such, they can be liable for both if they are defamatory.

Read more: High Court rules media are liable for Facebook comments on their stories. Here's what that means for your favourite Facebook pages

Australian attorneys-general are considering changes to defamation law to address this issue, including whether social media companies should be considered publishers and therefore be more liable for the content that appears on their sites. This could potentially put them at risk for defamation claims.

A related question addresses the obligations of these companies to identify anonymous authors of defamatory content.

This seems to be what Morrison had in mind when he made the distinction between platforms and publishers this month. In practice and principle, it is a vitally important and complex area of media law.

Why US laws in this space are paramount

For the social media giants, however, Australia’s laws on this front are far from the most important or relevant.

Indeed, two US laws provide American tech companies with powerful protections from defamation penalties incurred internationally.

The most recently enacted law is the Securing the Protection of our Enduring and Established Constitutional Heritage Act (2010), otherwise known as the SPEECH Act. (US lawmakers love rousing titles.)

The SPEECH Act makes foreign defamation judgements unenforceable by US courts if they are inconsistent with US laws. This law is designed to prevent “libel tourism” – the act of taking action in countries such as the UK and Australia, where defamation claims are more likely to succeed.

The other US law that applies in cases like this is the notorious section 230 of the Communications Decency Act (1996), containing what has been described as “the 26 words that created the internet”. This passage says

no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider.

This law, enacted a decade before the rise of social media, essentially shields tech companies from legal responsibility for the content that appears on their sites, with very few exceptions.

Read more: What is Section 230? An expert on internet law and regulation explains the legislation that paved the way for Facebook, Google and Twitter

Despite a growing consensus among US lawmakers that section 230 is a problem, there is no bipartisan agreement on the nature of the problem, or how to fix it.

The irony is that section 230 was designed to encourage emergent online platforms (blogging and chat sites, chiefly) to monitor, moderate and/or remove harmful (and “obscene”) content.

Previously, these sites were protected if they left user-posted content untouched, but they ran the risk of being seen as a publisher, and thus liable, if they took editorial action against such content.

Does Australia have any legal options?

Together, the SPEECH Act and section 230 suggest Australian defamation findings against US-based companies might be unenforceable. So threats to treat Facebook and Twitter as publishers may be toothless.

Australia can claim jurisdiction on the basis these companies are operating businesses here, but this may not be sufficient. Their complex multinational corporate structures provide the tech giants with an effective judicial shield.

Australia could also try to make enforcement easier by pursuing the matter through law reform. For example, legislation could make tech giants’ local subsidiaries liable for local content and require assets to be held locally for use as potential compensation.

But this, I predict, would meet with robust resistance.

The Australian government may claim to have beaten the tech giants once already with the news media bargaining code, which forced them to the bargaining table on the matter of compensation to media companies for news content.

Morrison has claimed as much when he said:

We have been a world leader on this, and we intend to set the pace.

But this wasn’t really a decisive victory; it was more like a negotiated ceasefire. The news media bargaining code is on the books, but has yet to be applied. The social media companies have instead negotiated arrangements separately and independently with news media providers. Some, including SBS and The Conversation, have missed out.

Similarly, if Australia actually, as Morrison threatened, designated the tech giants as publishers, they would effectively be unable to operate here, due to the unrealistic task of pre-moderating all posted content for fear of constant defamation claims.

Read more: A push to make social media companies liable in defamation is great for newspapers and lawyers, but not you

A proposed compromise, in which social media platforms take action against content that has been reported to them, would require them to assess an endless cacophony of defamation claims. Many could be spiteful nonsense. And any claim might take an expert court months to determine.

These operating conditions would be unbearable. I agree with Tama Leaver, a professor of internet studies at Curtin University, who said the tech giants would likely withdraw from Australia altogether.

No level of self-congratulation is proof Australia can prevail against the tech giants. Despite the chest-thumping by our leaders, Australia cannot “set the pace”. The main game is always being played in Washington. Change, if possible, will have to come from there.

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