Will the admins of Mastodon be liable for defamation posted on their servers?
Lawmakers and politicians are getting more and more interested in what’s said on social media and who can get sued for what. That will pose some interesting (and intimidating) problems if social platforms get smaller and more decentralised.
Here’s a fun thought:
When you join Mastodon, you sign up for an instance (or server) hosted by someone, not dissimilar to signing up for an email server.
If you defame someone in Australia – is that host considered the publisher of your comment and therefore liable?
He went on to reference a recent High Court ruling in Australia that decided that the admins of individual Facebook pages and groups could be held responsible for defamatory comments posted by others.
Never post, never comment
The ruling was messy. Someone wanted to sue some big Australian media outlets for comments made on their Facebook pages.
The media outlets pushed back, arguing they weren’t responsible for the comments.
Here’s a report from Elizabeth Byrne, high court reporter for the ABC, back in September 2021:
The High Court rejected the argument that, to be a publisher, an outlet must know of the relevant defamatory matter and intend to convey it.
The court found that, by creating a public Facebook page and posting content, the outlets had facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users, and they were, therefore, publishers of those comments.
Once the ruling dropped, the admins of other pages and groups started to worry. James Purtill, a tech reporter for the ABC, covered it:
The High Court indicated anyone who invites or encourages third-party comments on any social media platform would be seen as the publisher of those comments.
That case focuses on media outlets, but the ruling may extend to administrators of community groups, Dr Bosland says.
In fact, the ruling extends not only to administrators of community groups, but to the ordinary members in those groups too.
Suing Google for
fun and profit
Meanwhile, in June 2022, the Australian Federal Court ordered Google to pay over $700,000 to the then New South Wales deputy premier John Barilaro because of YouTube videos published by Jordan Shanks (aka FriendlyJordies). Defamation laws come for us all.
The court found that Google hadn’t taken “responsibility for its conduct as a publisher,” according to a report from Paige Cockburn. Her article continued:
Google initially pleaded a series of defences, including honest opinion and qualified privilege, which Justice Rares called “obviously hopeless”.
Eventually the company dropped all its defences.
For his part in things (you know, making the videos), Barilaro had to pay $100,000 in costs as part of a settlement deal in November 2021.
And that’s just in Australia. Ignore all the “Aussies are all laid-back larrikins who love a laugh” national brand building. We’re a litigious, reactionary bunch (who are also pretty funny).
Elsewhere, lawmakers in Texas decided to “restrict the ability of Facebook, Twitter and YouTube to moderate content on their platforms” (which is kind of the opposite problem, in some ways). In Russia, the Kremlin will jail you for up to 15 years for posting “fake” info on social.
Different countries, different contexts. But it all speaks to the malleability of how publishing and protected speech is defined.
Take authoritarian leaders out of it: if Facebook and Google can’t protect themselves from political and legal overreach, what power does any random individual hosting a Mastodon server have?
Facebook, Google, Twitter and the like have the benefit of scale. They have the money, resources and legal teams to go to war against rulings they think unfair. (Well, maybe Twitter doesn’t at the moment. They seem busy.)
Your friendly neighbourhood Mastodon admin doesn’t. And neither will other smaller, more intimate decentralised platforms that may pop up in the future.
They’ll just need to… hope no-one really cares about your little community enough to sue it into the ground.
Published on • Whisper any comments into a leaf and let it float away on a breeze
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