Another defeat in the info wars

On Monday the highest court in NSW upheld a ruling that media organisations are liable as publishers for defamatory comments posted on their Facebook pages. The context is a case brought by Dylan Voller, a former inmate of Darwin’s Don Dale Youth Detention Centre. The media organisations, The Australian among them, have said they were unaware of the comments and Voller did not ask for them to be taken down before launching court action. As News Corp Australia, publisher of this newspaper, has pointed out, mainstream media is being held to account for social media commentary when the platform itself bears no responsibility and does not allow comments to be turned off.

The law has always been a horse-and-buggy left behind by technology, but the stakes for democracy and public interest journalism today are alarmingly high. We have to navigate a tsunami of information — and outright lies — amid a multitude of local and global challenges including a pandemic, riots on the streets of our chief ally, geopolitical sparring with our biggest trading partner, industrial-scale conspiracy online, the galloping collapse of the old business model for journalism, and potentially an economic downturn of a severity that can spark social conflict. The question for political leaders is what law and policy will encourage the creation and sharing of accurate information and analysis that tries to get at the truth. We urgently need recalibration of the incentives to encourage journalists serious about the public’s right to know. By accidents of technology and failures of policy, the public square has become overrun with trolls, bots and bad actors.

Against this background, the legal contortions of the Voller case have an air of unreality. Provisions at issue in a key broadcasting statute were drafted before Facebook existed. Defamation law is already slated for a technology upgrade. And after excruciating delay, the federal government has flagged a mandatory code of conduct and a revenue reckoning for the oligopolistic tech giants, which have expropriated the quality journalism of the mainstream media while disavowing any responsibility for the toxic sprays of anonymous malevolence that pass for debate on its platforms. As we wait for action, more newsrooms close, the ranks of spin doctors grow and increasingly tribalised voters are likely to lose patience with the difficult business of negotiation and trade-offs in democratic politics, as well as losing faith in the tolerance required if civil society is to function.

The tech giants want it every which way but accountable. One day they are private platforms with take-it-or-leave-it dictatorial control over content. The next they are public utilities promising a utopia of ever deeper social connection. But they shrug off any suggestion they are also publishers that should try to prevent their business model poisoning the wells of communication. And they resist the expectation they should be good-faith traders duty-bound to pay for benefiting from journalism created by others.

So many of these themes come together in the flame war between Donald Trump and Twitter. The US President’s account is hardly a reliable news source but Twitter only draws attention to its own unadmitted bias when it invokes CNN as if it were a neutral authority to fact-check Mr Trump’s hyperbolic claims about electoral fraud. Twitter attaches no such “fake news” warnings to Chinese Communist Party-linked accounts spreading propaganda that the coronavirus is all-American, nor to the anti-Semitic rants of Iran’s leader.

The tech giants seem oblivious to the distortions of the “progressivist” world view they impose on citizens with a galling lack of transparency. They bear a heavy responsibility for the modern vice in which the progressive take on “hot button” social issues becomes dogma and dissent gets suppressed as “hate speech”. This is dangerous. Without open and honest debate, we risk being overwhelmed by the multitude of problems that confront us as societies.