High Court of Australia rules hyperlinking is not publishing [pdf]
eresources.hcourt.gov.au
eresources.hcourt.gov.au
Furthermore, the judgement makes it sound like Google's algorithm is fully neutral, that the results are the outcome of a simple mathematical algorithm. But Google is well-known to alter search result by manually boosting or banning websites. Given that Google has editorial control over the results, does the continued showing of misleading search results not count as defamation? How is it not the same as a newspaper continuing to call someone an "accused murderer" years after they have been acquitted?
In my opinion, Google gets to eat its cake and have it: full control over the content and none of the responsibility.
Not Disseminating: "Hey man, I really liked the new season of Stranger Things, you should check it out on Netflix"
Disseminating: "Hey man, you should check out the new season of Stranger Things, here's the DVDs."
> Does the continued showing of misleading search results not count as defamation?
Defamation: "You shouldn't trust Ted Cruz, he's the Zodiac killer."
Not Defamation: "Hey you should go read the Post's article about Ted Cruz, they're saying he's the Zodiac killer."
So this could easily have come down the other way and we could have a precedent suggesting potential liability for literally anybody who links to anything.
Because the messages were from a political party, they were exempt from anti-spam rules, and despite the protests from people sick of getting the messages - there was no requirement for any ability to unsubscribe.
[1] https://www.abc.net.au/triplej/programs/hack/craig-kelly-uap...
Depending on your phone/dialling app, you can already do this.
For me on a Pixel 3a, using the default Google Dialler I go to the Dialler app (where you dial numbers from), tap the three dots, settings, Blocked Numbers and there's a toggle "Unknown - block calls from unidentified callers".
iPhone has something similar, and I think Samsung's dialler also does too.
From the Parent Commenter:
> my phone helpfully lists a lot of spam calls as "Scam Likely" but I've yet to figure out how to make it just send those calls straight to voicemail
Similar to my other reply, you may be able to do this with the right phone/dialling app.
Again, for the Pixel 3a with the default Google Dialler: tap the three dots, settings, Caller ID and Spam, and there are three toggles.
See Calller and Spam ID. This shows if a caller is suspected as spam.
Filter spam calls. This rejects calls from suspected spammers (your carrier's normal rejected call handling then applies - i.e if you normally reject a call and it goes to Voicemail, then this is what will happen)
Verified calls. This allows companies which participate in the Verified Caller program to send the business information/reason for calling to your phone when they ring.
The TL;DR of the case is that a lawyer involved in some criminal gang cases sued Google because the reports by newspapers about him were available in Google search results.
I don't think many Australian politicians would take the side of the lawyer in this case.
Someone else commented that this is a very 'thin' interpretation, and so there may be no implications to the above. Were there to be any implications, however, they would most certainly go against the above 'protection payments' being enforceable.*
*Personal opinion, do not misinterpret as fact, please do your own research to misinterpret in your own, personal way.
Sure, but that's a very different issue to this one.
The wacky "make big tech pay" thing is dumb populism but appears pretty unrelated.
There is no technical understanding of any of this in the minds of the people making these decisions. The distinction between republishing via AMP and linking takes longer than 5 seconds to explain, so will be ignored by everyone involved.
Google & Facebook were being attacked (at the behest of Murdoch) on multiple fronts. This was one of them, the news mess was another.
I think (again, personal opinion, ignore at will) that this is the last remnants of that broohaha being put to rest.
The were converting the links, using AMP for instance, and driving traffic away from the publisher
Basically no media outlet in Australia allows comments unless they have a moderator (they never do) since this little gem.
> High Court rules media liable for Facebook comments on their stories
Free speech shouldn't mean someone is free from the consequences of that speech.
If we were to apply US law, specifically the infamous "Section 230", then that would depend on whether Y Combinator actively engages in moderation (aka editorializing) of comments.
If Y Combinator only engages in moderation of comments merely to satisfy other legal requirements (eg: remove illegal materials), then Y Combinator is a platform and cannot be held liable for comments.
If Y Combinator engages in moderation of comments beyond any requirements mandated by law (eg: remove some comments because the moderators don't like them), then Y Combinator is a publisher editorializing its content and can be held liable for comments.
A simplification is if Y Combinator has anything to do with a comment other than blindly disseminating it, then Y Combinator can be held liable for the comment. If not, whoever wrote the comment is liable.
And yes, if you think social media is getting away with moderating and editorializing its contents (eg: "this is disinformation" notices) while evading any and all liability under the guise of being a platform, you are absolutely right.
Just because many people wish Section 230 says that, it doesn't. The the contrary it gives fairly broad protection to moderation efforts and does not say that moderation amounts to becoming a publisher. (hence various people calling for changes to this, restricting platforms ability to moderate)
Contrast that to the following: I post a comment on Hacker News critical of some big megacorp. Megacorp can't credibly threaten to sue YCombinator over that because they are legally protected from being sued over the actions of their users. Megacorp sues me instead. I now have the ability to defend myself in court against Megacorp should I choose to.
So how could your second case occur?
Yes. So they don't have comment sections or they have expensively moderated comment sections. Both are preferable to unmoderated comment sections. I thought this had been the norm in many countries for years now?
Note that newspaper sites are very different from any random "forum". They typically enjoy very special legal protections and in return have legal responsibilities with a responsible publisher.
This meant that they review "letters to the editor" and take responsibility for them before publishing. And of course they can't do that with the comment section under an article online. And the simple solution is: for these specific types of publishers, just skip having comments or moderate the comments like the paper content is moderated.
The reader's letters editor reads the letter, and decides whether to publish it. The paper takes responsibility.
The comments editor reads the comment, and decides whether to publish it. The website takes responsibility.
I really can't see the difference.
Now, if by "comments editor" you mean the person that wrote the comment and hit "comment" on the site, that is perfectly equivalent to the person sending the letter to the editor, but has 0% equivalence to the person deciding whether the letter will be published.
When you comment on a site, the mechanism goes your computer -> server -> other users. There is no obligation for the server to make it available to other users just because it accepted your request. And indeed, the vast vast vast majority of sites on the internet that accept user content (far more than 99.9%) engage in moderation - some before the fact (moderator must approve content before it is published to other users), some after the fact (moderator sometimes deletes content that was previously published).
I know! I wanted to emphasize the equivalence between a print letters editor and a comments moderator.
Obviously it's hard to unpublish a letter to the editor in a print organ (you could leave it out of the second edition, I guess). So print editors are forced to pre-moderate.
I once had a "letter to the editor" published. They cut an important chunk of my prose, and added a misleading headline. That was 30 years ago, and I've never written to an editor since.
When I used to moderate the comments section on a political site, I would edit, but very cautiously. Mainly, I would remove addresses and phone numbers of people being criticized in a comment, and removed completely most kinds of bigotry and prejudice, and most exhortations to criminal acts. This was an "open posting" site - very strongly anti-censorship - but we still got attacked regularly for moderating at all.
Facebook wasn't found liable - they were seen as public forum.
But the newspaper by deciding to include comments on the article was found liable.
This is what DMCA section 230 settled in the US.
In the whole West, people who call themselves liberals demand further and further restrictions on speech in the name of niceness (no hate!) and accuracy (no misinformation!)
It is a road to hell paved with good intentions as usual, but we will have to relive the anti-utopia again to understand why free speech is valuable.
Aren't we already in a privacy anti-utopia, with pervasive, nearly universal surveillance by the large tech companies and the info going to the US government and perhaps its "five eyes" allies?
> liberals demand further and further restrictions on speech in the name of niceness (no hate!) and accuracy (no misinformation!)
if you cant control your own forums, wont your service quickly get overwhelmed by trolls and scammers?
> some other countries has already reached the level of "causing emotional distress is a crime".
I don't have a list of what do, I just hypothesise there could be other constraints. Private agreements, CSAM laws, IPR laws, which go to why you cannot provide a hyperlink.
Not a Lawyer.
An example is a recent hot button issue where the Court ruled Aboriginal Australians could not be classified as "aliens" under the Constitution (Love v Commonwealth). The decision was condemned by conservative media as judicial activism. The majority comprised Bell, Gordon, Nettle and Edelman JJ, the latter 3 were conservative government appointments.
“Here, Google was fixed with knowledge that Mr Defteros claimed the material was defamatory when a solicitor [...] lodged a removal request on Google's website for the Underworld Article to be removed from Google's search results. Google was provided with the Uniform Resource Locator ("URL"). The removal request form was provided and generated by Google. [...] Google was therefore aware of the defamatory character of the Underworld Article a reasonable time after having been given notice and the defence of innocent dissemination cannot be established.” [¶113]
“Contrary to Google's submission, its vast repository of information obtained and organised by the web crawler and indexing programs is not "an undifferentiated mass until a search is requested". And in crawling and indexing, news articles are a particular, if not primary, focus. A webpage which appears to be a news article, importantly, is separately crawled – identified – and indexed as such a page 181 . "Important" webpages are crawled more often 182 . The web crawler program and the ranking algorithm's focus on "important" webpages, the crawling of such pages for updated data more frequently, and the PageRank and freshness clues used by the ranking algorithm then combine to produce search results in response to a search query 183.
The design of the Google search engine system as a whole is intended to, and does, affect the results that are produced when a user enters a particular search query. And it is for that reason that, in seeking protection for its search results under the First Amendment to the Constitution of the United States, Google has itself successfully argued that the design of its search engine system involves the exercise of evaluative judgment 184.” [¶123-124]
Essentially saying that “hey, you said (and the US supreme court agreed) your results are protected as free speech because you're exercising judgement in preparing them, so why should we agree that you're not exercising judgement in preparing them now?”
Sure, in the same way that the outcome of an election depends on the relative amount of campaign spending by each side.
This is an example of a belief that is extremely common despite the fact that there is a mountain of evidence contradicting it and almost nothing in support.
https://fivethirtyeight.com/features/money-and-elections-a-c...
Obviously it's not going to be 100% success... but are you saying that marketing doesn't work?
But
> unlike in the general election, early fundraising strongly predicted who would win primary races.
> https://fivethirtyeight.com/features/money-and-elections-a-c...
Your own link is fairly explicit about this:
> “I think where you have to change your thinking is that money causes winning,” said Richard Lau, professor of political science at Rutgers. “I think it’s more that winning attracts money.”
> decades of research suggest that money probably isn’t the deciding factor in who wins a general election, and especially not for incumbents.
> Most of the research on this was done in the last century, Bonica told me, and it generally found that spending didn’t affect wins for incumbents and that the impact for challengers was unclear.
> the strong raw association between raising the most cash and winning probably has more to do with big donors who can tell (based on polls or knowledge of the district or just gut-feeling woo-woo magic) that one candidate is more likely to win — and then they give that person all their money.
> 80 to 90 percent of congressional races have outcomes that are effectively predetermined by the district’s partisan makeup — and the people that win those elections are still given (and then must spend) ridiculous sums of money because, again, big donors like to curry favor with candidates they know are a sure thing.
Capitalism does not “actually exist”. It’s learned constraints on agency. I can’t just walk into Musks house and eat his food.
I can’t walk into Tesla and alter products due to my meat bag not being referred to as billionaire Elon Musk.
How much more evidence story mode still runs the world do you need?
Impartiality is the hypothetical story we tell ourselves to make us feel good about, for example, Hunter Biden taking selfies with 20g of crack cocaine while black men do 10 years or more for the same crime. There are so many examples that if this one offends your politics, let me know, and I'll provide you with examples that will comport with your preferred media source.
When Hunter Biden gets extra protection from the law, does that source more from his money or from his political status?
When Michael Milken got extra persecution from the law, was his wealth an asset or a liability?
This is well-understood and I’m not breaking any new ground here by saying so.
What I am saying that is perhaps offensive or provocative is that this happens in the USA.
It is an interesting point though, it's not publishing but in my limited understand it just means that Google isn't bound by links that it has on its pages.
Example is btdigg which exclusively crawls and indexes magnet links from the DHT
I can give you what you need just by telling you to torrent f09c8d0884590088f4004e010a928f8b6178c2fd
That's even less than a hyperlink. It would be absolutely ridiculous to say that I'm publishing the torrent.
If sharing .torrent file is illegal, then so is the magnet. The court doesn’t care about “Um technically there is a DHT in the middle here”.
Personally I don't see that as being materially different to a magnet link.
The only difference is the DHT is acting like a kind of super-tracker.
(torrent search engine shows links to a link to a "link" to a material)
You're right; my spectacles-supplier makes it possible for me to watch infringing videos. So they're "facilitating".
Arguably a website operator can do something about it; Vision Express can't, and nor can Apple.
The battle between copyright maximalists and the "information wants to be free" crowd won't end until there's a copyright regime that most people think is fair. I think that means that (a) all copyright expires on the authors death, or after 70 years, whivhever comes first; (b) copyright infringement is a purely civil affair; (c) copyright holders get to sue for lost royalties, which they have to demonstrate, thus suppressing actions against people whove never made a penny from infringement.
That's how it was when I was a kid, and it seemed pretty fair. All the subsequent changes have been to favour the RIAA and the MPAA, enacted by the US government, and then rammed down the throat of the rest of the world through trade agreements and so on.
But doesn’t this mean having a site with bit torrent magnet links would be legal as you’re not hosting or publishing copyrighted material?
However they can be as bare-bones as you say.
“It will be recalled that the Court of Appeal in this case adopted the possibility of defamatory matter being published by way of incorporation by reference into a search result. In our view, this suffers from two difficulties. The first is that whereas incorporation by reference clearly has a place in contract law 64 and other areas of law, such as patent law and the law relating to wills, it can have no place in the law of defamation, which requires that the defamatory meaning be conveyed for publication to be complete. [...]” [¶45]
I'd be wary of claims that this is broad decision affecting all areas of Australian IP law. Also be mindful that “publication” has a technical meaning; one of the dissenting opinions makes a good case that the majority is erring [¶149-154].
Part of his issue is all his stuff has gone so far right with Sky News (especially 'After Dark' shows) and the tabloids (which also basically includes The Australian now), similar to how Fox News in the US went. But it seems that while he is pulling in a number of crazies, it's seemingly nowhere as big a proportion of the population as in the US. So more people seem to be switching off than getting pulled in (thankfully).
I think its because Australia has a Preferential Voting system.
Did you even read the case-summary?
"The respondent commenced proceedings, claiming damages for defamation from the appellant"
(In Australia his main publications are news.com.au and associated other mastheads, and Sky News. Fox isn't a player).
https://inews.co.uk/news/technology/tech-giants-google-faceb...
Public broadcasters like the BBC love to gloat every few pixels about how trustworthy they are. Yet, they will have more secret commercial deals with tech giants to get automatic prominent positions in feeds, regardless of quality. They're already spending up on ads on those platforms, and now the money will move in both directions. What could go wrong?!
In addition, the scheme involves harvesting data of users on the social platforms. It's a messy conflict of interest that encourages high volumes of low quality. Because that's all that's needed to get paid.
Why didn't the lawyer sue the actual publisher?
https://www.theage.com.au/articles/2004/06/17/1087245041025....
“The respondent did not sue The Age for defamation; instead, in 2010, the respondent sued two authors of a book that, amongst other things, contained a chapter based on the Underworld article. One of the two authors was also the author of the Underworld article. The claim settled at mediation, and it was a term of the settlement that the authors would make certain revisions to the book. In exchange, the respondent released the authors from all liability in relation to a number of matters, including any article published in The Age or its affiliated publications concerning the respondent.” [¶182]
Among other things, the court highlights an analogy of a google search to a librarian retrieving a book for a patron, including bookmarking relevant passages. And it's noteworthy that the librarian could in fact be guilty of publishing defamatory material, because “publishing” is a technical term.
“It was not suggested by the courts below that the appellant, as an internet search engine operator, actually communicated the defamatory material. It is of course possible that search results may themselves contain matter which is defamatory. This was acknowledged in Trkulja 35 . But that is not this case.
The question which arises here is whether providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another and assist them in accessing it amounts to an act of participation in the communication of defamatory matter.” [¶23-24]
“As the trial judge found, navigating the Web can be a challenge. Search engines assist in that process. But the analogy drawn by her Honour between a search result and a librarian handing over to a library user a book marked at a particular page is problematic, not the least because a search result is only one of a number of responses to an enquiry, as was the case here. Properly understood, a search result conveys to the person searching that they may be interested in one or more of the results. The person is not directed to a particular result, as the Court of Appeal implied. According to the trial judge's findings, results are ranked by the use of an algorithm having regard to relevance using "signals" or clues as to what the person searching is looking for according to the words used in their enquiry. The search result merely refers, in the sense of drawing attention, to a webpage. As Abella J pointed out in Crookes v Newton 68 , there is a difference between drawing a person's attention to the existence of an article and communicating its content. And whilst it may be said that the use of a hyperlink may mean The Age gains a reader, that does not make the appellant something other than a reference provider.
The respondent submitted that the Search Result had the added feature, to which the Court of Appeal referred, that by its terms it "enticed" the person searching to open the webpage. It is difficult to see how this level of excitement could be said to be generated by the words of the Search Result. Moreover, it needs to be borne in mind that the person has already activated a search for particular information before the result is received. As is the case with any search result, a person will employ the hyperlink if they think the webpage to which they are directed may provide the information they seek. It is notable that the respondent also submitted that the decisions of the New York courts should also be seen as involving "enticement". In doing so the respondent appears to equate "entice" with "call attention to".” [¶50-51]
Explicitly allowing crawlers and — perhaps most tellingly, offering specific metadata for SEO optimisations — is tacit permission for the republication of hyperlinks/titles/snippets. If you don't like that deal, just deny Googlebot (et al). It really is that simple.
The settled law is a joke.
(Or in the alternative, as a non-news publisher, I want my cut too.)
Just a little context.
That kind of makes them sound like heroes, but a quick scan of their wikipedia articles makes me think that's probably not the case...
That is a specific legislation which is dumb, but is limited to specific designated properties under specific circumstances, and doesn't modify liability.
On page 5 the judgement clearly talks about full search results where each result is “comprised [of the] title of webpage, snippet of content, and hyperlink”.
“Australian court rules that link previews are not publishing” …perhaps?
(Description of Duffy for reference: “Thus, in Google Inc v Duffy 91 with reference to Hird v Wood, the content of the snippet component of several Google search results was said to have been such as to "entice" a third party to click on the hyperlink in those search results to obtain more information. That was because the snippet component "naturally invite[d] the reader to click on the hyperlink for explanation and elaboration" of the matter 92 , such as to be aptly described as "the electronic analogue of the person who places a post-it note on a book which reads 'go to page 56 to read interesting gossip about X'" 93 .” [¶67])