Annika Smethurst: Tech companies have a duty of care to users
The Morrison government will unveil a package to help make tech giants liable for harmful online content. It’s a step in the right direction but does nothing to compel these websites to remove content which we know is doing harm, Annika Smethurst writes.
Opinion
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When shop assistant May Donoghue accepted a ginger beer from a friend at the Wellmeadow cafe, near Glasgow, Scotland, in 1928, she wasn’t to know it would lead to the development of the “neighbour principle” and our modern compensation culture.
It was August. May fancied a pear and ice-cream ginger beer float, which her friend ordered and paid for. The joyous occasion came to halt when the remains of a snail dropped out of bottle as May poured the soda over her ice-cream.
May hadn’t entered a legal contract with the cafe as she didn’t purchase the drink, limiting her legal options. Guided by her solicitor Walter Leechman, she brought a claim of negligence against the manufacturer on the grounds that businesses have a duty of care towards customers. She won.
The case set a major precedent and expanded the legal concept of duty of care.
Almost a century on, there is a new push to extend this duty of care to social media companies for harm caused by cyber-bullying and offensive content. Advocates say it would work the same way as the law applies to businesses, which must provide a safe environment for customers or employees.
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Earlier in the year, a Senate inquiry recommended the move — which would make Facebook and Instagram responsible if users were bullied or hurt by content it allowed on its site.
On Monday the Morrison government will unveil a package that appears to be a first step towards making tech giants liable for harmful content.
It’s a step in the right direction but does nothing to compel these websites to remove content which we know is doing harm.
The Senate committee which investigated the laws around cyber-bullying heard that in the 12 months to June 2016, one in five teenagers was cyber-bullied. According to the Department of Education, there is increasing evidence that cyber-bullying has a lasting effect on victims and can lead to poor self esteem, depression and suicidal thoughts.
Steps have been taken by jurisdictions across Australia to prosecute the perpetrators, but little has been done to penalise the online intermediaries, such as Facebook and Google, that allow this content to appear online.
Perhaps it’s time to rethink the regulations and ensure social media companies help stamp out harmful behaviour.
In Germany the government has taken an ambitious step to penalise social media companies that fail to remove offensive content.
In New Zealand, the Harmful Digital Communications Act seems to strike a better balance. Social media companies ask users to remove “harmful” content. If the publisher launches a challenge the content remains online, otherwise it’s deleted. If the social media company agrees to these rules then they are protected from legal action by users.
The Morrison government should be congratulated for taking the first step. But more can be done.
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