The Robots Are Coming. Sensible, Universal Laws On Social Media And Publishing, Not So Much.



There have been some major developments internationally on how courts view social media, and publishing. Hannah Marshall and Sophie Ciufo from Marque Lawyers break it down for you.

The EU is popping currently with directives and cases addressing the legal and social obligations of digital platforms.

Recently, the Court of Justice of the European Union (ECJ) ruled that an individual has a legally enforceable right to be forgotten and France passed new copyright laws requiring service providers like Google to pay publishers for showing snippets of news articles in search results.

The latest case has global implications. At the beginning of October, the ECJ held that the EU’s e-commerce directive (Directive 2000/31/EC) can have global application.

We begin in Austria, where a politician sought an injunction against Facebook Ireland (which operates Facebook outside the United States and Canada, because #tax) after it refused to take down a statement publicly posted by another user that the politician claimed was defamatory.

Eva Glawischnig-Piesczek wanted Facebook to take down the original post, as well as other posts with ‘equivalent remarks’, from the platform in Austria and worldwide.

The Vienna Commercial Court sided with Glawischnig-Piesczek and Facebook complied, but only in Austria. On appeal to the Austrian Supreme Court, the parties referred the case to the ECJ for guidance. The ECJ ruled that service providers, such as Facebook, can be ordered by a court of an EU Member State to remove or block illegal content (including defamatory content), worldwide.

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This is problematic for social media providers, because other countries are also passing their own laws regulating social media that may have conflicting effects. It also comes at a time when social media platforms are increasingly under the microscope for their legal and social (and political) obligations, as are the media companies using them.

Back in Australia, our Government swiftly passed (without debate, amendment, or input from anyone who may have had even a morsel of value to add) the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019, making it a criminal offence for platforms not to report ‘abhorrent material’ to the Australia Federal Police once aware that the material is on their platform, and not to expeditiously remove the material.

We also saw the Supreme Court of New South Wales determine that media companies could be held liable for defamatory posts and comments made on news stories on their Facebook pages, in the case of Dylan Voller v Nationwide News, Fairfax Media Publications and the Australian News Channel.

Needless to say, these cases will keep swirling around in Australia and the rest of the world, and the law’s attempt to regulate the behaviour of social media platforms will only continue to develop into a complex and unnavigable mess.

The only effective approach would be a coordinated global one. As if that’s going to happen.

Anyway, the robots are coming so does any of this even matter?

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Hannah Marshall is a partner at Marque Lawyers. Sophie Ciufo Sophie is a lawyer in the commercial team at Marque. She has both in-house and boutique firm experience in media and general commercial law. And more broadly, Marque Lawyers is the firm that on any given day (and out of the goodness of their hearts - i.e. pro bono) helps keep New Matilda out of jail.