This was published 2 years ago
Opinion
John Barilaro’s case against tech giant exposes flaws in ‘anti-trolling’ laws
Patrick George
Lawyer and authorAs is often said, timing is everything in politics – and life. The federal government is pressing forward urgently, before the election, with its social media “anti-trolling” bill.
At the same time, former NSW deputy premier John Barilaro went to trial this week against Google on the same issues the bill seeks to address and has shown that the bill is hopelessly flawed and unfit for purpose.
Former NSW deputy premier John Barilaro took Google to court.Credit: Dominic Lorrimer
The case concerned a person calling himself “Friendlyjordies” who uploaded videos about Barilaro to YouTube, while he was the deputy premier. Jordies accused him of serial corruption, serial perjury and blackmail.
There is no doubt the videos were seriously defamatory and damaging to Barilaro’s reputation at the time they were published and were likely to continue to cause him serious harm while they remained available on YouTube.
The trial judge was severely critical, describing the videos as bullying, shameful, and disgusting, among other comments.
Google operates the YouTube website and makes money through the sale of its advertising. Barilaro complained to Google and asked for the videos to be taken down. Google refused, so Barilaro sued jordies and Google.
Jordan Shanks, pictured in October, was sued by Mr Barilaro before the case settled.Credit: Kate Geraghty
Jordies settled but Google, with breathtaking arrogance, persisted in its defences up to the week before trial and left the videos up on YouTube up to and during the trial. The trial judge said he was “dumbfounded” and “shocked” by Google’s behaviour.
The proposed anti-trolling bill, however, would have allowed Google to do all this and ignore the damage done to Barilaro. Under the bill, Google would only have been required to identify the person known as jordies to Barilaro, so he could sue jordies for defamation, and it would have a complete defence. It would first need to seek jordies’ consent to that identification but not need to involve itself in whether to take the videos down.
All care but no responsibility.
Better still for page owners of a social media service such as Twitter or Facebook/Meta, the bill gives them an immunity for any defamatory post by a third party on their page.
This is intended to protect them from the High Court judgment in Voller, which confirmed that any person who participates in the publication is potentially liable.
That judgment was not a surprise. The law of defamation makes a person “strictly” liable for the act of publication of defamatory material.
The anti-trolling bill seeks to go from strict liability to no liability for page owners and, subject to compliance with a complaints scheme, no liability for social media service providers.
Instead, it compels complainants to take their grievances up with the author of the publication who may or may not be able to be identified.
Those with control of the social media service, however, may go about their business regardless once they have complied with the complaints scheme.
The easy passage provided by this bill for Google, Twitter and Meta suggests it is a “pro-protection of the media” bill, not an “anti-trolling” one in any real or practical sense.
It runs contrary to the policy direction which the Federal government initiated when it took a world-first position in regulating social media platforms just three years ago.
In the wake of the Christchurch terrorist attack in March 2019, where the violence that day was live-streamed on Facebook and Twitter and YouTube, the Federal government passed legislation to protect the public from the dissemination of such content and impose heavy sanctions on platforms that did not exercise reasonable care in removing abhorrent and violent content quickly.
This was imposing a “fault-based” liability on them in circumstances where the originator exploited the service for violent ends and those with the power and control over the service were expected to take steps to prevent such abuse.
In the wake of the Al Noor Mosque shooting in Christchurch, Australia tightened its online rules.Credit: AP
The decision to implement this regulation of social media platforms started a process of wider regulation by the Federal government, probably unintended but necessary, in respect of a number of other (Commonwealth) laws: for criminal offences, harassment, breach of privacy, defamation, and protection of consumers to name a few which needed to move in the same policy direction.
It included the regulation of not only the platforms but also those who facilitate the abuse and hatred of others on their pages. Not simply those who start the publication, oddly known as “trolls”.
Their identity may be known, they may be not. That is not the real issue.
They may start the fire but those who have the power and control over the trolls to put the fire out should bear the responsibility to do it.
The experience of the last 10 years has been that abuse and defamation are typically aimed at women and children.
How, it may be asked, did the anti-trolling bill head in the direction of no liability? This bill is misdirected in providing immunity or defence for simply identifying trolls, rather than providing a consistent and coherent policy direction with other laws, with proper regulation of the platforms and facilitators if they do not take reasonable care to protect the victims by removing the material once they are aware of the trolling.
I am all in favour of the Federal government taking over from the states and territories and legislating the defamation laws for the country, and have been for many years.
The Federal government would be well advised to ask the community – more thoroughly – for its expectations of the regulation of social media platforms.
And they could ask John Barilaro for his views – or perhaps wait for the judgment from the Federal Court which will I am sure have something to say about trolls and social media platforms.
Patrick George is the author of Defamation Law in Australia (3rd Edition) and a senior partner at Kennedys.
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