Australia Offers a Terrifying Vision of an Internet Without Section 230

What happens when YouTube and Facebook can be held liable for their users’ speech?

The former deputy premier of New South Wales, John Barilaro, won an unlikely battle against Google earlier this month. The High Court of Australia ruled that Google had defamed the now-retired politician by failing to remove videos published by the wildly popular YouTube journalist and commentator FriendlyJordies, whose real name is Jordan Shanks-Markovina.

Barilaro's victory attracted worldwide media coverage, not least because of the unprecedented damages awarded: Google was ordered to pay AU$715,000 (roughly $500,000 in U.S. money) and referred for a potential contempt prosecution. Ruling for the plaintiff, Justice Steven Rares accused Google of assisting Shanks-Markovina in the "vitriolic, obsessional, hate filled cyberbullying and harassment of Mr Barilaro."

Shanks-Markovina has repeatedly contested this characterization, arguing that his videos represent legitimate public interest journalism. The FriendlyJordies channel routinely investigates matters of grave national importance, such as water theft, police misconduct, and government corruption.

A combination of slick production values and Shanks-Markovina's acerbic personal style has allowed the FriendlyJordies channel to amass over 600,000 subscribers. This is no small feat, considering that Australia has a population of 25.7 million.

Barilaro could not have pulled this off in the United States. Platforms like YouTube are protected by Section 230 of the Communications Decency Act, which limits their civil and criminal liability for the actions of their users. Australia does not have an equivalent to Section 230.

In 2019, Dylan Voller, an Aboriginal Australian artist and prison reform activist, launched defamation proceedings against three major news outlets—News Corp, Fairfax Media, and the Australian News Channel—over comments posted to their social media accounts. 

Voller had a troubled childhood. His teenage years were punctuated with periods of incarceration following convictions for car theft, robbery, and assault. His experiences became national news following the publication of an Australian Broadcasting Corporation investigation into the Northern Territory's youth justice system.

The documentary, titled Australia's Shame, made for harrowing watching. It showed Voller, at age 17, shackled to a chair and forced to wear a spit hood. Another clip showed a correctional officer strike Voller, then just 14 years old, in the face after minor misbehavior. The footage shocked Australia and provoked a national soul searching.

It also provoked a backlash. Defamatory comments inevitably followed coverage of his case. One falsely claimed that Voller had "brutally bashed a Salvation Army officer." Another accused him of raping and beating an elderly woman.

Voller filed suit. In 2019, the New South Wales Supreme Court ruled in his favor. Without making a determination as to whether the comments were defamatory, it said publications could no longer "turn a blind eye" to defamatory comments, arguing they provide a forum and therefore are responsible for them. The High Court of Australia affirmed this ruling two years later.

The Voller case fundamentally redefined who can be held liable for user comments online, paving the way for Barilaro's victory.

From its inception, the internet has facilitated robust debate, eliminating traditional media gatekeepers. Social media accelerated this trend, facilitated by legislation like Section 230. Without the risk of civil liability, tech companies can allow the unfettered flow of discourse.

As the Voller ruling demonstrates, changing that legal ground limits the avenues for open debate. In the wake of the 2021 High Court ruling, many Australian publications opted to limit the ability of third parties to comment on their articles.

CNN—admittedly a minnow in the Australian media ecosystem— took the most drastic action and deleted its Australian Facebook page entirely.

The ruling even prompted some politicians to reassess their social media presence. Peter Gutwein, who led Tasmania until April of this year, switched his Facebook profile to read-only mode, cutting off a potential communications channel for constituents. 

Announcing the change, Gutwein said, "The recent Facebook defamation ruling by the High Court has determined that the page owner is now legally responsible for user comments on posts. We know social media is a 24/7 medium, however, our moderation capabilities are not."

Dan Andrews, the leader of Victoria, suggested that he may follow suit, though that has not yet come to fruition.

And now John Barilaro—a man who was once second most senior politician in Australia's most populous state—has suppressed criticism from an independent media operation, and in so doing likely made internet companies less willing to help such operations reach an audience in Australia.

When Reason asked Shanks-Markovina for comment, a spokesperson compared the ruling to "making a paper mill responsible for everything that may in the future be printed on their paper," and added: "If Australia continues to go down this path, it essentially means that anyone will be able to submit vexatious complaints to Google about public interest content and it will be in Google's commercial interest to remove the content complained of no matter the merits of the complaint." 

Here in the United States, Section 230 has its opponents on both sides of the political aisle. The Australian experience demonstrates how removing the protections enjoyed by internet platforms can chill all sorts of online speech.