Dismantling the immunity

Date published




It will long be remembered that the big tech social media platforms “de-platformed” a President of the United States and denied Donald Trump his media connection of choice at a critical time.

Twitter closed his account to 88.7 million followers. Facebook, Instagram, YouTube and other social media platforms followed suit, at least suspending his accounts pending Joe Biden’s inauguration.

Trump had attracted 74 million votes in the Presidential election (Biden attracting 81 million) and 232 electoral college votes to Biden’s 306.

The numbers indicate he still had a substantial support base and he refused to concede. Instead, he used social media platforms to urge and inflame his supporters to believe that the election had been stolen and they must fight and “Stop the Steal”.

Throughout his presidency the extent and influence of Trump’s power on social media was unprecedented. Here was the most powerful leader in the Western world speaking to the masses directly on a daily basis.

His delusions, contradictions and threats were there for all to see. He approved/disapproved, menaced/endorsed, bullied/praised, mocked/indulged, lied to his followers and labelled media outlets as “enemies of the people”.

Many faithfully accepted his word, typically uttered by tweet. In return the social media platforms attracted more followers, and flourished and grew, benefitting from his enormous popularity and the money which flowed their way.

The de-platforming of Trump was met with criticism in some quarters as “chilling” free speech. The criticism was superficial and ignorant, failing to acknowledge Trump’s breach not just of the law but the fundamental values of democracy, and his ability to exercise his free speech somewhere else.

Elections depend on an honest declaration of the result by those entrusted with the count of the votes. If a candidate for election claims that votes were fraudulently cast, then they need to prove the claim with cogent evidence and to sufficient extent through the courts. That process respects the rule of law.

For Trump to have agitated through social media for two months after the election that it was fraudulently stolen without proving the claim in court was absurd, reckless and irresponsible.

The rally he called for his supporters to attend in Washington on January 6, 2021 was timed and intended to take place on the same day that Congress would vote to accept the certification of the Electoral College and declare Biden as the next President.

The urging of his supporters to fight the “steal” that day led to a march on Congress that put people and property in harm’s way. Yet this was more than a trespass, it was a repudiation of the voters’ choice at the election and a violation of the fundamentals of democracy, no more strongly symbolised than the angry mob sacking the Capitol.

It will be remembered that social media companies enabled this President to use their platforms to further his popularity and success, and enabled others with wild and lawless speech, to spread hatred and division.

The platforms pretended that they were carriers, like phone line companies, and not publishers responsible for content.

Trump’s rise and fall has changed that. His legacy will be the imposition of reality and responsibility on social media platforms into the future.
Ironically it was Trump himself who challenged social media platforms with this reality after Twitter fact-checked his tweet in May 2020, claiming there had been widespread fraud in mail-in voting.

In response, he issued an Executive Order to narrow the operation of section 230 of the US 1996 Communications Decency Act. This was challenged in the courts under the First Amendment of the Constitution.

The fact-checking and labelling of his tweets continued throughout the election period, responsibly contradicting his unashamed disinformation. On December 1, 2020, Trump put up his last stand against them as President, threatening to veto a $740 billion defence bill unless Congress repealed the “very dangerous and unfair” s.230.

This section has protected “providers of internet computer services” for 25 years. It provides immunity to a social media platform from liability:

(a) as a publisher of content posted by others; and
(b) as a moderator of that content, in good faith.

Third parties may be liable for content but not the internet computer service. This was introduced to allow internet service providers to carry others’ content with all care but no responsibility.

As the internet has become an essential service or “utility” to society, the foreseeable harm from the content published by malicious third parties has often caused immeasurable harm without any means of redress.

The ability of third parties to use social media platforms anonymously without identification weaponised their content to damage others with apparent impunity.
The market place of ideas became a cesspit of abuse, harassment and threats while the social media platforms looked the other way. Australian courts have not accepted this abdication of responsibility because the immunity under s.230 does not operate here.

Any person who participates or enables the dissemination of defamatory matter, for example, is liable in Australia for its publication, subject to the statutory defence of innocent dissemination available to distributors: Trkulja v Google LLC [2018] HCA 25 at [4]; Fairfax Media Publications Pty Ltd v Voller [2020] NSWCA 102. The latter decision is the subject of appeal to the High Court.

Internet service providers have been held liable in Australia despite the qualified immunity available under the innocent dissemination defence: Duffy v Google Inc [2015] SASC 206; on appeal [2017] SASCFC 130; Defteros v Google LLC [2020] VSC 219.

The social media platforms operate globally. A consistent legal position on their responsibility across different jurisdictions is desirable if not essential.

In a post-Trump world, social media platforms will be looking at the shadow Trump casts on them. He showed that they are not mere carriers or platforms but could and eventually did control the content of a President. They are publishers in the new world, with responsibilities and liabilities, and should anticipate the likely dismantling of the immunity ahead.

This article was originally published in the Gazette of Law and Journalism 20-01-21.