Showing posts with label Australia. Show all posts
Showing posts with label Australia. Show all posts

Monday, September 13, 2021

'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.

Tuesday, May 18, 2021

Automatic-door failures fuel injuries, tort claims, but road to recovery in litigation can be bumpy

Pixabay by djedj
An Australian woman struck by a malfunctioning airport security door was denied recovery in April after failing to prove that the malfunction caused her injury.  The outcome strikes me as questionable, and the case is instructive of tort principles anyway.

If you travel much, as I do, you probably have passed through those one-way transparent security doors that whip open and closed to allow only a person at a time to pass.  They frighten me a bit, and I never linger on the threshold.  The plaintiff in the instant case likewise denied having paused upon egress from Wagga Wagga City Airport arrivals in New South Wales, yet was struck by one of the doors.  She complained of shoulder and back injury, requiring surgery, and the court confirmed that the impact of the door at least worsened a preexisting condition.

Arrivals at Wagga Wagga Airport
(2012 photo by Bidgee CC BY-SA 3.0 AU)
The doors were in fact malfunctioning.  There are two batteries, at different heights, of photoelectric cells that sense a person in the way and prevent the doors from closing.  The lower set were out of commission.  However, tests and maintenance on the doors showed that the non-functioning cells were not essential for safety; the higher set still kept the doors open when so much as a person's leg was in the way.  The plaintiff therefore failed to show a causal connection between her injury and the malfunction, nor any alleged misfeasance by the airport defendant, such as a failure to warn.

The outcome strikes me as questionable, because there seems to be no dispute that the 44-year-old plaintiff was struck by the door, and that that's never supposed to happen.  Even if the photoelectric cell failure cannot be blamed, the case seems well suited to res ipsa loquitur, which, to the best of my knowledge, is recognized in New South Wales common law, and is not mentioned by the court.  Maybe the plaintiff failed to plead the theory.  Or maybe this is a Palsgraf-esque scenario in which the court concealed skepticism of the plaintiff's injury.  Of 100,000 arriving passengers annually, there were no other reported incidents, the court troubled to say.

Anyway, the case reminds me of one that I use sometimes in torts class to teach punitive damages with a dash of professional responsibility.  In 2015, 61-year-old James Hausman won a $21.5m verdict against the Holland America Line (HAL) after being hit by an automatic sliding door on a cruise ship, in an incident captured on camera.

There's plenty to inform a class discussion just there.  Hausman's injury did not look too bad in the video, but traumatic brain injury is tricky.  And the court awarded $16.5m in punitive damages after hearing about 16 other sliding-door injuries on HAL ships.  The plaintiff's lawyer accused HAL of trying to save on air conditioning, which HAL denied, the ABA Journal reported.

Then the case took a turn.  In 2016, the district court threw out the verdict after revelations of spoliation.  The ugly dissolution of an employment relationship between Hausman and a personal assistant led to an undiscovered personal email account and deleted messages that cast doubt on Hausman's veracity (ABA Journal, Seattle Times).  The court ordered a new trial and clarified that there was no evidence the plaintiff's attorney was complicit in wrongdoing.  The docket suggests that the case ended in settlement later that year.

The Australian case is Gray v. Wagga Wagga City Council, [2021] NSWDC 108, 07 April 2021 (Wolters Kluwer).  Simon Liddy at HWLEbsworth published commentary.  The American case is Hausman v. Holland America Line-USA, No. 2:13-cv-00937 (W.D. Wash. 2016) (Court Listener).

Tuesday, March 26, 2019

Terra Nullius: Named for legal doctrine, novel dives deeply into human identity

I'm not easily moved by fiction, so I don't make recommendations lightly.  And you need to read this book.

Terra Nullius by Claire G. Coleman (Amazon) has been a hit in Australia and thankfully was picked up for U.S. circulation by a small, Massachusetts-based publishing house, Small Beer Press.  The book has been shortlisted or nominated for a bunch of prestigious awards and won the Norma K. Hemming for exploration of themes of race in speculative fiction.  The book is a product of the Queensland "black&write!" indigenous writing fellowship.  Coleman identifies with the Noongar people of the southwestern coastal region of Australia.  A poet and writer, this is her debut novel, and she wrote it while exploring indigenous lands in a caravan.

The "speculative fiction" element of Terra Nullius is not immediately obvious in the telling of the story.  I won't spoil it here, and I urge you to avoid spoilers so that you can experience it yourself.  Even so, being married to a librarian, who recommended this book to me, I knew something of the novel's secret.  I was gripped early nonetheless, and the reveal was still richly enchanting.  For a while I had to ponder, why did Coleman tell the story this way?  But I got it, and the author interview in my Small Beer Press edition confirmed: Coleman's narrative delivers empathy for the indigenous experience in a way that I have never before witnessed.

There are countless parallels between Coleman's take on indigenous life and British colonization and the experiences of other marginalized groups, including Africans amid European colonization and First Nations in the United States.  The title, "terra nullius," refers to the Latin term and legal doctrine meaning "nobody's land."  Specifically the term was employed by the British to legally rationalize claim to Australia, as if the continent had been uninhabited.  The term turns up in American law, too, to justify claims to this continent and the displacement of native peoples.  Coleman states that she has not yet been to the United States, but would welcome the chance to compare notes on our reservations.  I would love to witness that conversation.  In ironic coincidence, I read Terra Nullius while exploring the reputed landing sites of Christopher Columbus on the Samaná Peninsula of la República Dominicana.  There are scarcely few more apt places on earth to consume this book.

While the focus might be on the indigenous perspective, this novel, in its sum, speaks even more ambitiously to the whole of our human experience.  It demands that we interrogate who we are as a species; that we ask whether confrontation and violence—might makes right—are intrinsic to our human identity, or a choice that we make, something we can change.  It comes clear that our survival may well depend on the answer.