Social media's 'publish first-remove later' approach is dangerous and unfair, writes Jane Fynes-Clinton.
Social media's 'publish first-remove later' approach is dangerous and unfair, writes Jane Fynes-Clinton.

Social media’s wild west days are numbered

AT long last, offensive and defamatory behaviour on social media might be brought to heel.

For too long, rabid rants and keyboard cursing has ripped people up and pulled their reputations down.

But while the number of users taking action to defend their reputation is growing - big firms such as Shine Lawyers now have designated national defamation offices - there remains a perception that social media slides between the cracks of law and vanishes into the virtual realm.

There is a feeling of untouchability for the average person, that control of what can be said about a person has been lost and the internet is a lawless frontier.

But all that might be about to come to a crashing halt.

One complainant might be the game changer that the upset and defamed on social media need.

Facebook has long claimed it is a platform, not a publisher.

This conveniently means it can spurn responsibility for what is put up on its pages.

Users, it says, are the doers of good and ill deeds and they are responsible for them.

Facebook rightly has policy and practices in place to remove any objectionable content when users complain.

That could soon be proven to be a flawed approach and Facebook's finger of blame might turn on itself.

MoneySavingExpert founder Martin Lewis is suing Facebook, claiming the social media company allowed scam ads featuring his name to be published. (Pic: Ian West)
MoneySavingExpert founder Martin Lewis is suing Facebook, claiming the social media company allowed scam ads featuring his name to be published. (Pic: Ian West)

On Monday, British businessman and TV personality Martin Lewis launched defamation action against Facebook itself, saying it published more than 50 fake advertisements that featured his name and picture.

Lewis, the founder of consumer website MoneySavingExpert.com, claims the ads were put up by get rich quick scammers, with many linked to websites that mimicking reputable news outlets.

His claim is that this is not just a post on a page: it was material Facebook took money for and shared liberally around cyberspace alongside the material that users posted.

He says he told Facebook repeatedly the ads were fake and defamatory but says Facebook was slow to take the ads down.

This meant the harm to his reputation was extended, he says.

In launching the civil action, Lewis says he hopes Facebook will take greater responsibility and be proactive rather than relying purely on reports of scams or complaints from users to take down harmful material, using its own face recognition technology perhaps.

He is not alone: high-profile sports and media personality Eddie McGuire is on the warpath too, and an ad campaign published on Facebook is what has fired him up.

The erectile dysfunction treatment ads used his photo and fake quotes from him. The treatment is available only via the internet and chasing the creator of the ads might be difficult.

But McGuire says he will go down the rabbit holes of the infobahn and he wants more than just the ad maker - he wants Facebook to take responsibility for the damage to his reputation too.

Without his permission, Eddie McGuire was used as the face of an erectile dysfunction campaign. (Photo by Michael Dodge)
Without his permission, Eddie McGuire was used as the face of an erectile dysfunction campaign. (Photo by Michael Dodge)

Only four years ago, Australia's first social media defamation case proceeded to full trial, with a former student ordered to pay more than $100,000 in damages over a series of defamatory posts about a teacher.

While celebrities such as Rebel Wilson and Eddie McGuire pack a punch when they seek to defend their reputations in the courts, a recent University of Technology Sydney study led by Derek Wilding found everyday Australians are most likely to sue or be accused of defamation.

The report, from the university's Centre for Media Transition, found only a quarter of defendants between 2014 and 2017 were media companies and more than half of cases involved digital publication.

Wins do not mean windfalls: payouts could be as little as $2000. And no legal action restores a reputation, but merely offers a financial salve.

Australia defamation laws - which are state-based but largely mirror each other - were overhauled in 2011, with a review after five years required. But that has never occurred and the laws have not kept up with technology.

For a person to take action for defamation, there needs only to be a statement that makes others think less of a person that is published to one other. This is done repeatedly and at the speed of light on the internet.

There are serious problems in the digital age: it can be hard to identify who is doing the defaming and it can be difficult to get the material taken down.

Also, generally, a person has a year to sue, but this starts from the time of publication and in the digital age republication occurs every time a post is shared.

A NSW judge recently spoke out about concerns for justice and the government there has promised to re-evaluate defamation legislation.

Social media's 'publish first-remove later' approach is dangerous and unfair.

Hopefully current action by the brave and maligned will help us all.

Dr Jane Fynes-Clinton is a journalist and journalism lecturer at the University of the Sunshine Coast. fclintonj@optusnet.com.au



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