Christian Porter's Defamation Reform Would Be A Catastrophic Mistake

Attorney-General Christian Porter wants social media platforms like Twitter and Facebook to be legally liable for defamatory comments made by their users.

Right now, the common law can distinguish between the legal liability of active publishers of information (like newspapers and broadcasters) and the passive platform operators that allow users to publish information themselves.  Courts decide where this distinction is drawn according the unique facts of each case.

But in a speech to the National Press Club on Wednesday, the Attorney-General declared he wants to eliminate the distinction altogether:  "Online platforms should be held to essentially the same standards as other publishers."

The Attorney-General's proposal is fundamentally confused.  Removing the distinction between digital platforms and newspapers would have a devastating effect on both those platforms and our ability to communicate with each other.

The proposal is bad on its merits.  But even besides that, the conservative government needs to understand how destructive it would be to the conservative movement online.

Let's start with the legal principles.  It makes sense that newspapers and broadcasters are liable for what they publish.  They actively commission and produce the content that appears on their services.  They read it, edit it, arrange and curate it.  They pay for it.  Newspapers and broadcasters have not only an editorial voice, but complete editorial control.  Indeed, it is this close supervision of what they publish that gives them strength in the marketplace of ideas.

Social media platforms do nothing of the sort.  Not only do they not commission the content that appears on our newsfeeds (let alone read, factcheck, or edit that content), they don't typically confirm that their users are even real people — not, say, bots or foreign impersonators.  They merely provide a platform for us to communicate with each other.  Social media has facilitated a massive, global conversation.  But it has no editorial voice.

In the United States a parallel debate is going on among Republicans about whether Section 230 of the Communications Decency Act — which explicitly prevents courts from treating "interactive computer services" as publishers or speakers for the purpose of legal liability — should be abolished.

Section 230 has variously been described by scholars and commentators as "the 26 words that created the internet" or the "the internet's first amendment".  The internet law professor Jeff Kosseff writes that eliminating this provision would "turn the internet into a closed, one-way street".  Attorney-General Porter's proposal would have the same effect.

If social media platforms have to bear legal responsibility for what their users say, they will assume editorial responsibility for it.  That means editing, deleting, and blocking all content that could be even the least bit legally questionable.

Newspapers and broadcasters sometimes take calculated risks with what they print, if they believe that the information they reveal is in the public interest.  But why would a technological company — a company that lacks an editorial voice or the journalistic vision — be anything but hypercautious?  Why wouldn't it delete anything and everything with even the slightest risk?

And here is where the practical politics comes in.  Even if the Attorney-General's proposal was a good idea in principle, this policy would be particularly devastating for the conservative movement that supports his government.  Indeed, it is hard to imagine a legislative proposal that would more effectively, and immediately, cut down the Australian conservative movement online.

After all, what side of politics benefits most from the political diversity and openness of the modern internet?  What side of politics has relied most on the internet's ability to bypass traditional media gateways?  It is difficult to imagine the conservative political surge in recent years without social media — without Facebook, Twitter, YouTube, and all those podcast platforms.

If conservatives are concerned about social media networks "censoring" conservative content on their services now, well, making them liable for everything conservatives say would supercharge that.

And why would this policy stop at defamation laws?  Why wouldn't it also apply to liabilities around, say, Section 18C of the Racial Discrimination Act?  Or our sedition laws?  We are looking at a future where technology companies in California (companies that many conservatives believe are stacked with culturally left employees) could be required to second-guess how the most left-wing judges in Australia might enforce this country's draconian anti-speech restrictions.

The Coalition government should also reflect on how some of its most recent legislative programs have backfired on conservatives.  The Foreign Influence Transparency Scheme, passed in 2018 in order to tackle Chinese interference in Australian politics, is now being used to target the organiser of the Australian Conservative Political Action Conference, Andrew Cooper, and even Tony Abbott.

The Attorney-General is right that defamation law needs reform.  Australia's defamation framework is heavy-handed and disproportionately favours private reputation over the public need to discuss significant issues.  But removing the courts' ability to determine liability for defamation — and instead deputising the world's technology companies to enforce what they imagine it could be — would be a catastrophic mistake.