As the ‘Trump -v- Twitter’ saga unfolds, a spotlight has been shone on the legalities of social media and, in particular, the adequacy of current legislation in our constantly evolving digital world.
Broadly speaking, the saga concerns certain protections afforded to a ‘provider or user of an interactive computer service’, namely Twitter, through the operation of s 230 of Communications Decency Act (47 U.S.C. § 230) (US Provision).
Relevantly, the US Provision provides a safe harbour for Twitter in relation to ‘any action voluntarily taken in good faith to restrict access to or availability of material that [it] considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected’. This allows Twitter to utilise content warnings, restrict various functions (including the ability to like, retweet and share) and remove certain infringing tweets.
The US Provision further states that ‘no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider’.
Applicability in Australia?
While the US Provision has been dismissed by the Supreme Court of South Australia as ‘irrelevant’ in relation to defamatory publications in Australia1 there are similar Australian statutory protections afforded to internet content hosts2 found within cl 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth) (Australian Provision).
The Australian Provision, in essence, provides an internet content host with an immunity against any law of a State or Territory, or a rule of common law or equity, in relation to hosting particular internet content in circumstances where it cannot be said that the host has the requisite state of knowledge as to the nature of the hosted content.
Much like the protection afforded by the US Provision, the Australian Provision can protect an internet content host against liability for hosting defamatory content. Unlike the US Provision however, the immunity within the Australian Provision does not extend to users of the platform.
This distinction is particularly pertinent given recent changes concerning defamation law in Australia as discussed in our recent article following the decision in Voller v Nationwide News Pty Ltd & Ors3 (which we note was upheld on appeal on Monday, 1 June 2020). In short, parties with public Facebook pages can be held liable as primary publishers of defamatory content made by third-party posters, including in circumstances where the party has not been requested to remove the content, or indeed put on notice of the allegedly defamatory content.
Parties relying on social media for commercial purposes, including for consumer engagement and advertising, must therefore be aware of the potential exposure to liability for not only their own content but also for any defamatory content made by third-party posters.
Practical tips
Some practical tips for parties using social media:
- If you know the post is likely to be controversial because it relates to a sensitive topic, or an emotive issue likely to generate strong responses from both sides of a debate, consider if you should post the material on your social media page at all, or whether another forum such as your own website is more appropriate.
- If you do allow comments on your page, consider using available tools to vet third-party comments or posts before they are published, and monitor the posts carefully.
- Be aware that you can block users and hide posts and do not be afraid to do so.
1See, Google Inc v Duffy [2017] SASCFC 130, [524].
2Clause 3 of Schedule 5 of the Broadcasting Services Act 1992 (Cth) defines ‘internet content host’ to mean ‘a person who hosts internet content in Australia, or who proposes to host internet content in Australia’. ‘Internet content’ is defined to mean ‘information that: (a) is kept on a data storage device; and (b) is accessed, or available for access, using an internet carriage service’.
3[2019] NSWSC 766.
