Treat internet providers and traditional media equally

The controversy involving facebook’s decision to deny access to thousands of sites in Australia calls for a review of the laws relating to the traditional media and new online services.  Several laws, including those regulating defamation and the broadcasting of election materials, vary according to the way information is shared with the general public.

Social media providers such as facebook and twitter maintain that they are merely providing a platform for their users. Historically, they have rejected the suggestion that they are publishers. The consequence is that the providers have no legal responsibility for the content on their sites, apart from material that might contravene public decency or national security laws.

Increasingly however, the providers have curated their sites, removing material or access to materials. This has ranged from alleged concerns about so-called ‘fake news’ to bans on political material with which they disagree.

The most egregious example was the decision by facebook to deny access to thousands of sites in Australia, including many providing critical health advice and information. This was not the result of any concern about the inappropriate nature of the material, but because facebook sought to send a message to the Australian government about its insistent on a bargaining code for the use of news in the sites. The decision to remove access was wilful decision about profits.

In curating the material on their sites, the providers have become publishers. They have exercised the right to determine which material is published and which is not. They are not simply disseminating the materials that others post without reserving to themselves and exercising the right to reject or remove it. This is publishing and editing.

Accordingly, the providers should be subject to the same laws that apply to the traditional media, whether print, radio or television.

The Broadcasting Services Act 1992 provides in clause 91 of Schedule 5 (Online Services) that a State or Territory law or the Common Law, such as defamation, has no effect if the provider was unaware of the nature of the internet content. Nor are they liable if they would have to monitor the content or keep records of the material on their sites.

This law, which is like the US safe-haven legislation, protects the online service providers. It was written a generation ago when the internet was in its infancy.

The scope of this section has not been the subject of detailed judicial discussion but a current appeal to the High Court may lead to consideration of it.

Regardless of any decision by the High Court, the internet providers such as facebook and twitter have demonstrated over the past year that they can identify and remove access to material they dislike or disagree with. The claim that they are not aware of the content is flawed. They have intricate algorithms that enable them to monitor and identify various content.

Facebook has a history of removing material that has been judged inappropriate. Since 2017, the company has removed hundreds of posts the Pakistani government has deemed blasphemous despite explicitly stating the blasphemy does not violate its community standards. It has also removed similar content at the request of Bangladesh, Indonesia and Malaysia.

The providers are now acting as publishers. They should be subject to the same laws as other publishers. Replacing clause 91 with a take-down provision would achieve this outcome.

A failure to take down defamatory material could then result in the same penalties that other parties who are found to have committed defamation currently face.

Similarly, the laws relating to the broadcast of election material should be amended. It makes no sense today that the traditional media are subject to a blackout prior to polling day, but this restriction does not apply to the online service providers such as facebook and twitter.

The same law should apply to the dissemination of election materials, whether online, in print or on radio or television.

- Polity 9 (1 & 2) 2021