'Don't panic,' lawyers say, as Oz High Court clears way for website liability over defamatory user comments

The High Court of Australia last week greenlit defamation claims against website operators for user comments, the latest evidence of crumbling global immunity doctrine represented in the United States by the ever more controversial section 230.

There is plenty news online about the Aussie case, and I did not intend to comment.  For the academically inclined, social media regulation was the spotlight issue of the premiere Journal of Free Speech Law.

Yet I thought it worthwhile to share commentary from Clayton Utz, in which lawyers Douglas Bishop, Ian Bloemendal, and Kym Fraser evinced a mercifully less alarmist tone when they wrote, "don't panic just yet."

The Australian apex court extended the well known and usual rule of common law defamation, when not statutorily suspended: that the tale bearer is as responsible as the tale maker.  In the tech context, in other words, "[b]y 'facilitating, encouraging and thereby assisting the posting of comments' by the public," the defendants, notwithstanding their actual knowledge or lack thereof, "became the publishers," Bishop, Bloemendal, and Fraser wrote.

But it's a touch more complicated than purely strict liability.  "What is relevant is an intentional participation in the process by which a posted comment may become available to be accessed by other Facebook users," Bishop, et al., opined.  "So does that mean you should take down your corporate social media pages? That would be an over-reaction to this decision."

The lawyers emphasized that this appeal was interlocutory.  On remand in New South Wales, the media defendants may assert defenses, including innocent dissemination, justification, and truth.  Bishop, et al., advise:

In the meantime, if your organisation maintains a social media page which allows comments on your posts, you should review your monitoring of third-party comments and the training of your social media team in flagging and (if necessary) escalating problems to ensure you can have respectful, non-defamatory conversation with stakeholders.

Funny they should say so.  Coincidentally, I gave "feedback" to Google Blogger just Friday that a new option should be added for comment moderation, something like "archive," or "decline to publish for now."  The only options Google offers are spam, trash, and publish.

I have two comments posted to this blog in recent years that I hold in "Awaiting Moderation" purgatory, because they fit none of my three options.  Every time I go to comment moderation, I have to see these two at the top.  The comments express possible defamation: allegations of criminality or otherwise ill character about third parties referenced on the blog.  I don't want to republish these comments, because I do not know whether they are true.  But I don't want to trash them, because they are not necessarily valueless.  Moreover, they might later be evidence in someone else's defamation suit.

I moderate comments for this blog, so I don't think it's too much to ask the same of anyone else who publishes comments, whether individual, small business, or the transnational information empires that peer over my shoulder.  

I do worry, though, about how that works out for the democratizing potential of the internet.  I'm trained to recognize potentially defamatory or privacy invasive content; I've done it for a living.  Are we prepared to punish the blogger who contributes valuably to the information sphere, but lacks the professional training to catch a legal nuance?  Or to pay the democratic price of disallowing dialog on that writer's blog?  As a rule, ignorance of the law is no excuse, in defamation law no less than in any other area.  But understanding media torts asks a lot more of the average netizen than knowing not to jaywalk.

I don't profess answers, at least not today.  But I can tell that the sentiment of my law students, especially those a generation or more younger than I, is unreticent willingness to hold corporations strictly liable for injurious speech on their platforms.  So if I were counsel to Google or Facebook, I would be planning for a radically changed legal future.

Facebook shields records from Mass. AG inquiry

The Massachusetts Supreme Judicial Court today ruled on efforts by Facebook to resist disclosures arising from an internal investigation into application development.  The disclosures are sought by the commonwealth attorney general, which is investigating allegations of consumer data misuse.

AG Healey
(Zgreenblatt CC BY-SA 3.0)

The court's ruling is mixed, but, overall, Facebook gained ground.  The court allowed Facebook more latitude than it won in the lower court to resist disclosure on grounds of attorney work product.  On remand, the lower court will have to scrutinize the records to separate attorney opinion, which is protected, from mere facts, which are not.  The SJC agreed with the lower court that one set of records was within attorney-client privilege, and Facebook will have to produce a privilege log.

Facebook seems to be taking seriously the investigation by the office of Attorney General Maura Healey, and it should.  The company hired fixer-firm Gibson Dunn to handle its internal investigation and is represented by Wilmer Hale in the Massachusetts investigation.  Massachusetts data protection regulation is antiquated relative to the latest generation of regulations in Europe and California, but the law has been on the books for more than a decade.  The AG was represented in the SJC by attorney Sara Cable, whose appointment last year as the office's first chief of data privacy and security signaled an intent to ramp up data protection.  Massachusetts consumer protection law, "93A," the basis of the AG investigation here, is famously expansive, often displacing common law tort in private enforcement and affording generous damages.

Justice Scott Kafker wrote the lengthy opinion for the court in Attorney General v. Facebook, No. SJC-12946 (Mass. Mar. 24, 2021).  Justice Kafker is on a tear of late, having written the court's opinion in a sea change in tort law in late February and the court's unanimous ruling against Gordon College in a First Amendment religious freedom case on March 5.

Alien tort animates U.S. lawsuit in abduction of 'Hotel Rwanda' hero, threatens immunity of social media

Paul Rusesabagina at the University of Michigan in 2014

(photo by Ford School of Public Policy CC BY-ND 2.0)

The alien tort statute has turned up more than usual lately in my newsfeed.  In two compelling appearances, the law is implicated in the criminal prosecution now underway in Kigali of "'Hotel Rwanda' hero" Paul Resesabagina, and it has a cameo in the section-230-reform show now playing on Capitol Hill.

Last week, Professor Haim Abraham, of the University of Essex School of Law, spoke to the Obligations Discussion Group, organized by the University of Oxford Faculty of Law, on his current working paper, "Holding Foreign States Liable in Tort."  Working at the intersection of torts and human rights, Professor Abraham is passionate about the problem of accountability for wrongs perpetrated by state actors.  His present work means to outline a policy framework to support state liability, and he made a reference in passing to the American alien tort statute (ATS).

Dating to 1789, the ATS, complemented by the Torture Victims Protection Act of 1991 (TVPA), is a principal legal avenue to liability for torts committed abroad.  ATS liability, though, runs up against serious hurdles, namely, the law's own vague scope, and foreign sovereign immunity.  On its own terms, the ATS only pertains when a wrong rises to a violation of international law or treaty, often imprecise benchmarks.

The enigmatic 18th-century enactment says little else.  Especially in recent decades, the U.S. Supreme Court has grown fastidious in its interpretation of the law, rejecting claims without sufficient nexus to the United States.  Meanwhile, ATS plaintiffs must take care to pursue wrongdoers as rogues, lest defendants present as state actors entitled to foreign sovereign immunity.  The TVPA was a mitigation of that latter limitation.

Sharing Professor Abraham's appetite for accountability, not to mention my self-interest in full employment for torts professors, my attention is captured anytime the ATS turns up in a way that might yield fresh fruits.  And so it has.

Graves of genocide victims in Rwanda in 1995
(photo by Gil Serpereau CC BY-NC-ND 2.0)

The New York Times, among others, has reported on the shady chain of events that led to the presently ongoing criminal trial in Kigali of Paul Resesabagina, the man who saved some 1,200 lives during the Rwandan genocide in 1994 and whose story was turned into a major motion picture starring Don Cheadle.  Living outside Rwanda first in Belgium and then in the United States, Resesabagina has been an outspoken critic of Rwandan authorities, both as to the genocide and as to subsequent Rwandan foreign policy, including alleged involvement in war crimes in the Democratic Republic of Congo.  He knew better than to return to Rwanda, but, reports state, Resesabagina thought he was on a plane to Burundi for a speaking engagement when the plane landed in Kigali, and he was placed under arrest on terrorism charges.

There's plenty to debate about the criminal matter in Rwanda, but my focus here is on events back home.  Rusesabagina's family in San Antonio, Texas, in December 2020, sued GainJet and Constantin Niyomwungere in federal district court under the ATS and TVPA, and in Texas tort law on counts of fraud, false imprisonment, intentional infliction of emotional distress, and civil conspiracy.  GainJet is the company that conveyed Rusesabagina from his Dubai layover to Kigali, and the family alleges that Niyomwungere, a purported pastor who invited Rusesabagina to to speak in Burundi, was in fact a secret operative of the Rwandan government.

The pleadings mean to represent the abduction as a violation of international law, besides common law torts, and to bring the case within the scope of the TVPA, too.  The complaint characterizes the abduction of Rusesabagina as "extraordinary rendition" and charges the defendants with torture of Rusesabagina upon or after his landing in Kigali, stating that he was kept bound, blindfolded, and gagged for days and "physically and psychologically tortured" in interrogation.

GainJet B757 ascending from Coventry, England, in 2015

(photo by Rob Hodgkins CC BY-SA 2.0)

Niyomwungere is characterized alternatively as a state actor or a free agent working with the state, to deal with immunity on that front.  Either he was a state actor, in which case the state would have to concede its role in the abduction, or he was a rogue, subject to tort liability (if he can be brought within U.S. jurisdiction).  The complaint furthermore alleges that GainJet, a private charter company based in Athens, Greece, was a knowing co-conspirator with the Rwandan government, so the GainJet pilot and co-pilot, knowing what was afoot, failed to signal an emergency in the air.  The complaint catalogs GainJet commercial outreach to Rwanda and speculates that the firm was anxious for work amid the Greek economic debacle.

The complaint asserts that the matter in sum sufficiently "touches and concerns the United States" to satisfy Supreme Court requirements, because the defendant-conspirators reached out to Rusesabagina at his Texas residence to lure him abroad.  That by itself is a thin reed, but the U.S. residency of the plaintiffs bolsters the nexus.

Meanwhile, in Washington, D.C., Senate Democrats are circulating a proposed bill that would carve out some slices of Internet service providers' infamous tort immunity under section 230 of the Communications Decency Act of 1996.  Section 230 reform has become a bipartisan cause since both Democrats and Republicans, often for different reasons, have sought to blame social media companies for our present national discontent, whether for not censoring enough or for censoring too much.

The proposal does not represent a wholesale repeal and reinstatement of conventional publisher liability in tort, as some congresspersons called for.  Among proposed new immunity exceptions are actions in civil rights law, antitrust law, "stalking, harassment, or intimidation laws," wrongful death, and, lo and behold, "international human rights law," specifically, the ATS.

The theory behind the proposal as to the ATS is that social media companies over which the United States has jurisdiction could be held liable for having facilitated human rights violations abroad.  As Lauren Feiner observed for CNBC, this measure

could be particularly risky for Facebook, which acknowledged in 2018 that it was “too slow to prevent misinformation and hate” on the platform as Myanmar military officials sought to weaponize it in what became characterized as a genocide against the minority Rohingya Muslims. The SAFE TECH Act would clarify that Section 230 immunity should not bar suits under the [ATS], which could allow survivors of the genocide in Myanmar to bring cases against the platform in the U.S.

People displaced by violence in Myanmar in 2012
(photo by UK Department for International Development CC BY-SA 2.0)

Myanmar would be only a starting point, as social media, including Facebook's WhatsApp, have been blamed for eruptions of violence around the world, notably including mob violence in India (which I talked about at a Dubai event in 2019 sponsored by India-based Amity University).  Plaintiffs would face the usual high hurdles of the ATS, including the international law requirement and the requisite U.S. nexus, as well as hurdles in conventional tort law, such as duty and proximate causation.  But it's not hard to imagine plaintiffs surviving dismissal to see discovery.  Even without further process, discovery would be a boon to human rights advocates.

Over its centuries of life on the books, the alien tort statute has been counted out as a dead relic, resurrected as a reputed redeemer, and wrangled as a menacing mischief-maker.  What seems certain now, whether under the ATS, TVPA, or instruments yet to be devised, is that in our smaller world, the challenges of legal accountability for both states and corporations for transnational misconduct cannot be written off easily as beyond the scope of national concern or domestic jurisdiction.

The case in Texas is Rusesabagina v. GainJet Aviation, S.A., No. 5:20-cv-01422 (W.D. Tex. filed Dec. 14, 2020).  At the time of this writing, PACER shows no activity since filing.

The section 230 reform bill was introduced in the Senate, 117th Congress (2021-2022), on February 8, 2021, as S.299.

LatAm NGOs propose model of internet platform self‑regulation consistent with human rights

NGOs working on the project, from the report.

Now published online and open for comment are "Contributions for the Democratic Regulation of Big Platforms to Ensure Freedom of Expression Online," a potentially powerful document developed by a coalition of Latin American non-governmental organizations.  Here is the abstract:

This document offers recommendations on specific principles, standards and measures designed to establish forms of public co-regulation and public regulation that limit the power of major Internet platforms (such as social networks and search engines).

The purpose of this effort is to protect users' freedom of expression and guarantee a free and open Internet. Such intermediaries increasingly intervene in online content, through the adoption of terms of service and the application of business moderation policies. Such forms of private regulation affect public spaces which are vital for democratic deliberation and the exercise of fundamental rights.

The proposal seeks to align with international human rights standards and takes into account existing asymmetries related to large internet platforms without limiting innovation, competition or start-up development by small businesses or community, educational or nonprofit initiatives.

The proposal seeks to create a self-regulatory framework that will avert public regulation of the internet.  Needless to say, that will involve the voluntary collaboration of the major players, Facebook, Google, Twitter, et al.  From what I saw of their recent participation in RightsCon in Tunisia, they are game.

I'm all for seeing where the self-regulatory approach takes us, but I worry about two problems.  First, I'm not sure how long the big players will be willing to spend money on social responsibility while unscrupulous competitors bypass self-regulation and continue to reach audience across the technologically egalitarian internet.  Second, as Facebook talks about setting up its own judicial system, I worry about whether we're creating corporate nation-states that will censor anti-majoritarian expression, e.g., perceived "hate speech," with the blessing of NGOs that purport to uphold human rights.  But one step at a time....

Here via Observacom are links to the report in español, português, and English.

Polish court enjoins Facebook 'private censorship': just one sign of new norms in digital rights

Much worry about censorship today focuses on the private sector, specifically and especially the large tech companies--Google, Facebook, Twitter--who have so much power over what we read, hear, and see.  When I was in journalism school, in ethics class in the early 1990s, a student once mentioned the possibility of a news organization withholding a sensitive story and worried that that would be "censorship."  Professor Lou Hodges--a great teacher, great person, since deceased--vigorously corrected the student, saying that censorship by definition must be governmental action. 

Louis Hodges, W&L

Well denotational niceties aside, and with the great respect due to Professor Hodges, I'm not sure the distinction remains salient.  I've been worried about the private sector in the free speech realm for a long while.  I've already posited in print that the greatest looming threat to the freedom of information around the world today is not government, but private corporations, and I've started writing about what can be done (what already is being done in Africa, relative to: the United States, India, and Europe, forthcoming).  Indeed, even the classical distinction between freedom of expression and the freedom of information has lost much salience in the information age.

In the United States, for good historical reasons, our constitutional law draws a sharp line between the freedom of speech and the freedom of information, and also between state action, "censorship," and private action, so-called "private censorship."  Both of those lines have eroded in the real world, while our law stubbornly insists on them.

Foreign constitutional systems, such as the European and African human rights regimes, do not come with the historical baggage that carved these lines in U.S. constitutional law.  These younger systems are proving more adept at navigating the problem of private action that would suppress speech and information.  That flexibility has meant full employment for lawyers in the counsel offices of Big Tech.

It also means that the law of the internet and the law of digital rights is no longer being authored in the United States.

In Poland, a digital rights organization called the Panoptykon Foundation--I assume named for the legendary imaginings of English philosopher Jeremy Bentham--is litigating without shame against Big Tech, Google and Facebook included.  In a suit against Facebook, Panoptykon has taken up for "SIN," an (acronymed appropriately if coincidentally?) anti-drug NGO in Poland.  SIN apparently suffered content-based take-downs and blocks on Facebook.  It's not clear why Facebook (algorithms? censors?) targeted SIN, though TechCrunch speculated that it might have to do with SIN's strategy on drug counseling: more of a "use responsibly" approach than an abstention-only approach.

The action is based on Polish statute, which guarantees freedom of speech and does not get hung up on any American-style state-action limitation.  In June, a Warsaw court ex parte ordered (in Polish, via Panoptykon) Facebook to stop blocking or removing any online SIN content, pending litigation.  Technically the respondent in the case is Facebook Ireland.  But one can imagine that American Facebook execs are on alert, as foreign courts fuss ever less over the public-private distinction.

Professor Hodges might roll over in his grave to hear me say it, but I am confident that "private censorship" will be the free speech story of the 21st century.  America will be dragged into a new world of legal norms in digital rights, willingly or not.  I would rather see us embrace this new world order and confront the problem of a runaway private sector than see our civil rights law relegated to legal anachronism.

Read about SIN v. Facebook at Panoptykon.  Hat tip @ Observacom.

Claim to Facebook fortune dismissed in Mass. appeal

The Massachusetts Court of Appeals Wednesday affirmed dismissal in tort, contract, and equity claims by a software developer against principals behind Facebook-predecessor company ConnectU.

The Winklevosses (CC BY-SA 2.0 cellanr)

Wayne Chang (commencement address at UMass Amherst in 2016) alleged that he was entitled to a some portion of the $65m in cash and stock received by ConnectU's twin brothers and "bitcoin billionaires" Cameron and Tyler Winklevoss in settlement with Facebook founder Mark Zuckerberg.  That mediated settlement ended litigation in California and Massachusetts in 2008; Chang initiated the instant action in 2009.  Bringing the case to a close at last, the Massachusetts Appeals Court agreed with the lower court that Chang had severed business ties with the Winklevosses before they entered settlement negotiations with Zuckerberg.  The court also affirmed award to the Winklevosses of $30,000 in costs.

The case is Chang v. Winklevoss, No. AC 18-P-329 (Mass. Ct. App. Apr. 24, 2019).