It’s no secret to long term Techdirt readers that Australia truly is the upside down when it comes to internet laws and policy. We’ve discussed in the past things like Australia’s news link tax (they hate when you call it a tax, and insist it’s just a “bargaining code,” but the bargaining is to force internet companies to pay for linking to news, so it’s a tax), and its laws that can force companies to break their encryption. Or how about their plans to outlaw anonymity? But what’s been most stunning is their completely upside down view of intermediary liability. In Australia, not only can you sue intermediaries for someone else’s speech, the courts regularly happily side with absolutely ridiculous claims against those intermediaries.
The latest in an unfortunately long line of these cases is that an Australian court has ordered Google to pay the former deputy premier of New South Wales, John Barilaro (who is currently going through a job related controversy), because someone uploaded a YouTube video attacking Barilaro. In a normal system — i.e., like under the US’s Section 230 rules — Barilaro would have every right to go after the guy who created the videos, a comedian named Jordan Shanks, but Google has no liability since how the hell should it screen every video uploaded? Shanks actually settled with Barilaro last year, so the case continued just against Google.
As in previous, similar cases, Australia’s judges seemed to have no problem at all blaming Google for any content posted on a Google owned site, even if it was not created or viewed by anyone at Google.
On Monday, federal court justice Stephen Rares ruled that Barilaro had been left “traumatised” by a campaign of “relentless cyberbullying” by comedian Jordan Shanks, who uses the nom de plume Friendlyjordies
Rares ruled that Google had failed to adhere to its own policies by doing “nothing to prevent Mr Shanks’ hate speech, cyberbullying and harassment” of Barilaro.
The judge ordered Google to pay $715,000 in total, a figure which could rise if a costs order is made against the tech company.
Apparently the judge is also considering going after Google for putting “improper pressure” on Barilaro… by leaving the videos up. In other words, if a judge merely disagrees with a content moderation decision, that can be seen as an aggravating factor. It’s ridiculous.
The videos, and Google’s decision to leave them online, amounted to what the judge called “improper pressure” on Barilaro during the case.
“The intimidatory purpose of the hit its mark,” Rares found, pointing to evidence given by Barilaro during the trial that he had at one point instructed his lawyers to settle the case because “the hell continued”.
As Matthew Hughes, over at Reason, highlights that while the videos Shanks made may have been crass, they clearly would have been seen as protected speech elsewhere, and notes that Shanks’ YouTube channel has a history of doing significant investigative journalism on issues around government misconduct, including police misconduct and government corruption.
In other words, much of this certainly looks like retaliation against a vocal critic — while cashing in via Google, and making it much less likely that Google/YouTube will host his videos, or the videos of other critics in the future to avoid the risk of liability.
In other words: the laws that make it clear that intermediaries can’t be held liable for the speech of third parties protects speech and supports free speech.
Hughes’ article goes on to note other ways that Australia’s lack of 230 is now stifling speech, talking about the case that we covered last year, making Facebook users liable for comments under their posts. Soon after, we noted that CNN was removing comments from any of their posts in Australia, not because they don’t want the comments, but because the risk of liability is too great.
As Hughes explains, this has resulted in more speech suppression:
The ruling even prompted some politicians to reassess their social media presence. Peter Gutwein, who led Tasmania until April of this year, switched his Facebook profile to read-only mode, cutting off a potential communications channel for constituents.
Announcing the change, Gutwein said, “The recent Facebook defamation ruling by the High Court has determined that the page owner is now legally responsible for user comments on posts. We know social media is a 24/7 medium, however, our moderation capabilities are not.”
Dan Andrews, the leader of Victoria, suggested that he may follow suit, though that has not yet come to fruition.
And now John Barilaro—a man who was once second most senior politician in Australia’s most populous state—has suppressed criticism from an independent media operation, and in so doing likely made internet companies less willing to help such operations reach an audience in Australia.
Once again, this is why we’ve been pointing out for over two decades now that Section 230 enables more speech and removing Section 230 (or equivalent) laws leads to speech suppression. It is bizarre beyond belief that people still seem to believe that Section 230 is against free speech. Section 230 is one of the most amazing tools supporting free speech we’ve ever seen — because it’s opened up so many different places on the internet for people to speak.
