14 August 2018
Fake news, digital disruption and digital defamation

According to a prominent Queensland lawyer, defamation laws in Australia have failed to move at a pace consistent with the digitalisation of our world and are giving the internet giants like Google, Facebook and Instagram, a free kick at the expense of traditional media organisations and the thousands of Australians they employ.

Travis Schultz, Principal of Travis Schultz Law, recently made the observation that the last five or six years have seen a transformational shift in the way in which Australians receive their news and print media, yet there have been no corresponding changes to the Defamation Act and no regulation of the way in which these technology behemoths are required to conduct their business in Australia.

“The biggest loser in this is print media. And this group is historically, a large employer of Australian workers but under current legislation, these types of publishers are liable for any defamatory content they publish, even if the defamatory comments have originated from some other person or third party.

“On the other hand, platforms which “host” content which is posted by others, seemingly take little responsibility to manage the truth or accuracy of what they allow to be disseminated through their digital technology”, Mr Schultz said.

“What strikes me as absurd is that these social media and search corporations have a business which is really around selling advertising. Their model may be different to the traditional publishers in that they don’t pay for their content but rather, allow others to post it for them. Yet they collect enormous amounts of data on users and non-users in the process, and at the end of the day, they are making money through selling ads, albeit, targeted ones.”

In recent years much has been reported on “fake news” and the unfair, if not unscrupulous conduct of certain organisations who have attempted to manipulate public opinion, often using material which is inaccurate if not simply untrue, yet the internet publishers of this material have no responsibility under current law to compensate for the damage their publishing of the content does to an individual or organisation.

While inaccurate or maliciously posted material can be removed, these digital platforms are often slow to react or do not act at all which does little for those who have been negatively impacted by the offending post and who might, as a consequence, have suffered enormous damage to their personal reputation, business or political interests.

And Australians are concerned about this alarming trend. According to The Digital News Report: Australia 2018, “Three quarters of Australia news consumers say they have experienced one or more types of fake news, and they are worried about it”.

“We just can’t have two sets of rules for digital and traditional publishers. The playing field currently isn’t level, and it’s time for a discussion as a country about what we expect of all publishers when it comes to taking responsibility for the consequences of defamatory or misleading content which drives advertising revenue but can have reputationally and financially crippling consequences for the innocent person affected by it”, Mr Schultz warns.

However, it will only be a matter of time before we start to see some sort of legal responses to those inadvertently caught up in fake news stories. The High Court recently found that a Melbourne businessman, Milorad Trkulja, had an arguable case against Google as a result of it wrongly linking him to underworld crime figures in its search platform.

Lower courts had found that Mr Trkulja had no reasonable prospects of succeeding and had struck out his claim, but the High Court found that it was at least arguable and permitted the case to proceed.

This case will be followed by our politicians and regulators who will be watching for the outcome with interest. “It might not change the corporate behaviour of these digital publishers, but it might at least start a discussion about the accountability of these digital platforms for the content which drives their advertising revenue,” Mr Schultz said.

And with the ACCC’s Digital Platforms Inquiry currently underway it is only a matter of time before we see recommendations for change being made – but sadly for many it will be too little too late.