Blurred Strains in Publishing Regulation Making a New ‘Threat Panorama’

When I first started practicing media law 15 years ago, a typical day was reviewing draft articles for newspapers, working with publishers to make sure books were sold with minimal risk, and suing in Irish courts for clients facing the found the wrong end of a claim. The internet was minimal, if any. Today there are very few files on my (completely virtual) desk that do not contain any online aspect. It has changed the media, how we all do business and how people communicate.

But it also brings with it a new risk landscape, and many people fear that the general use of this landscape is slowly but surely undermining freedom of expression.

The Internet has enabled new forms of content generation and expanded the reach of traditional publishers to a much wider audience, but it has also led to an exponential increase in the spread of harmful language and misinformation. The inevitable result? A call for regulation by private, commercial and legal interests alike.

The difficulty for internet users, from news-posting companies to individual social media posters and everyone in between, is that regulation is not consistent around the world. Different jurisdictions deal with the legal issues arising from publication on the Internet against the background of their own, often complex, legal systems. In Ireland, our written Constitution guarantees all citizens the right to freely express their beliefs and opinions. This right is of course subject to restrictions, but is of great importance in the balancing act of a legal challenge to the publication.

In the US, the First Amendment, which protects freedom of expression and freedom of the press, is arguably even more important. However, in jurisdictions such as Russia and China, severe restrictions on freedom of expression, along with increasing encroachments on privacy by technology, can make it difficult or impossible to distribute online content.

National courts, legislators and regulators deal with these contradictions and challenges in different ways and with different goals. The result is often legal inequalities and uncertainties for internet users.

For example, the Australian High Court recently ruled that media that allow third-party comments on social media can be held legally responsible for those comments. The decision is not liable to the person who published the comments or the provider of the social media platform, but to the media organization that owns and operates the digital site.

The decision goes back to a defamation suit brought by Dylan Voller, an Australian juvenile inmate, against defendant media companies for comments from Facebook users on messages posted by these companies on Facebook. Mr Voller successfully argued that the media organizations that published the original news were liable for any third-party comments made in response, even though the media organizations did not intend to publish the material. The decision underscores the risks involved in facilitating the posting of comments by third-party users on websites controlled by an organization. It appears that, in Australia at least, this act alone is sufficient to establish that the organization in question is a “publisher” for the purposes of the Libel Act.

This is not the law in Ireland or the rest of the European Union, and it is unlikely that this will be done in the foreseeable future due to the “Notice and Take-Down” liability regime under the E-Commerce Directive, as outlined in the Defamation Act, 2009 and the e-commerce regulations. In Ireland, Facebook, and probably most traditional media companies, are only liable if they receive a complaint about third-party comments that they did not respond adequately to.

The US goes further and provides in Section 230 of its Communications Decency Act that an “interactive computer service” cannot be treated as a publisher of third party content. So Facebook would be off the table immediately if Mr Voller’s problems had occurred in the US, and possibly the media organizations too, given the first change principles and their legal interpretation in the US. Yet even the US – often viewed as the bastion of free speech – is now seeing that relatively clear line starting to blur with the reform of Section 230 and the landmark 1964 Supreme Court ruling in the New York Times Company against Sullivan , which shapes the defamation law in the USA to this day, has come under fire.

The result of all of these legal differences is forum shopping, legal potholes for those who distribute content in any form, and harmful speech slipping through the cracks. The current global health crisis has only exacerbated these problems – in 2020, disinformation and harmful language will spread faster than Covid-19 on the internet.

The legal responses of states to this wave of harmful content are only just beginning to be scrutinized. How individual jurisdictions have acted to combat such disinformation will become clearer in the coming months, but we can reasonably predict that any significant change in approach in the US will have an impact on our Department of Justice’s reform agenda for Ireland’s libel laws, in which heads of a new libel law is expected.

This article was first published by CaliberAI.

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