Metadata by TLF: Issue 12
Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here, and you can subscribe to Metadata by TLF here.
Australian Court rules that media companies are liable for defamatory user comments
The Court of Appeal Supreme Court, New South Wales, made the ruling in the matter of Fairfax Media Publications; Nationwide News Pty Ltd and Australian News Channel Pty Ltd v. Voller. The claimant alleged that defamatory comments made on the Facebook pages of a few Australian newspapers were effectively published by the papers, due to which they were liable for the criminal harm caused. Regarding the argument that the media outlets promptly removed the comments about Voller when they became aware of it, the judges said that it was “immaterial” and they should still be held responsible because they had “participated in the publication … from the outset” by inviting comments. “A person who participates in and is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees,” said the ruling. The ruling was criticised by media companies in a joint statement. “The appeal court has shown that Australian defamation law is completely out of step with the realities of publishing in the digital age, and how Australians consume news and information,” said a joint statement from News Corp Australia, Nine and Australian News Channel.
Josh Taylor, “Australian media companies face defamation liability for comments on Facebook after court dismisses appeal”, The Guardian, (June 1, 2020).
Mike Cherney, “News Outlets Are Liable for Others’ Facebook Comments, Australian Court Rules”, Wall Street Journal, (June 1, 2020).
Hugh Marks, “Digital giants must take rap for comment on their sites”, The Australian Financial Review, (June 1, 2019).
Trump signs Order targeting social media companies
On May 28, President Donald Trump signed an executive order on May 28 targeting Section 230 Communications Decency Act, 1996 which protects internet companies from liability. The move was in response to Twitter fact-checking the president's tweets on mail-in ballots for containing "potentially misleading misinformation." As part of its new policy undertaken amid the coronavirus pandemic, the platform has introduced labels and warning messages that aim to provide “additional context and information” on Tweets containing disputed, misleading or unverified claims related to the pandemic. The executive order doesn't change how Twitter, Facebook or other social media companies operate. Rather, it calls on the government to review federal law that protects online companies from liability for content posted by users, according to a draft of the order. The executive order alleges that online platforms are engaging in “selective censorship”, and that Twitter’s labeling of Trump’s tweets indicated “political bias”. It argues that when online platforms remove or restrict access to content, they engage in editorial conduct and become the “publishers” of all the content posted on their websites. Based on this, the order seeks to revoke the liability shield offered to platforms and exposes them to liability “like any traditional editor and publisher that is not an online provider.”
Tim Wu, “Trump’s Response to Twitter Is Unconstitutional Harassment”, The New York Times, (June 2, 2020).
Henry Olsen, “Trump’s social media executive order is a big mistake”, The Washington Post, (May 29, 2020).
Andrew Marino, “Vergecast: Examining Donald Trump’s executive order targeting social media”, The Verge, (May 29, 2020).
Chris Megerian, “Trump signs order targeting social media companies”, Los Angeles Times, (May 28, 2020).
Casey Newton, “Why Twitter labelled Trump’s tweets as misleading and Facebook didn’t”, The Verge, (May 29, 2020).
Arizona sues Google over claims it illegally collected location data despite users opting out
Google kept tabs on the whereabouts of its users even if they had turned off location tracking, an Arizona official alleged in a lawsuit filed on May 27. The suit filed by Attorney General Mark Brnovich stemmed from an investigation that began after The Associated Press reported on Google’s location tracking in 2018.The suit alleges Alphabet’s Google violated the Arizona Consumer Fraud Act and it seeks to claw back profits from the tracking. “Every company has a responsibility to be truthful to consumers,” Brnovich said. “You can’t deceive them, you can’t make misrepresentations.” A Google spokesman said Brnovich and the “contingency fee lawyers” who brought the case have mischaracterized the company’s services. AP reported two years ago that users could pause a setting called location history, and Google’s support page said: “You can turn off Location History at any time. With Location History off, the places you go are no longer stored.” But it was later uncovered that even with the function paused, some Google apps automatically stored time-stamped location data.
Nick Statt, “Arizona sues Google over claims it illegally tracked location of Android users”, The Verge, (May 27 2020).
Tony Romm, “Arizona sues Google over allegations it illegally tracked Android smartphone users’ locations”, The Washington Post, (May 28 2020).
G.D.P.R. used to adjudicate family dispute in Netherlands
In a first, Europe’s General Data Protection Regulation (‘G.D.P.R.’) was used to adjudicate a family dispute in the Netherlands. The matter arose when a Dutch woman was requested to takedown pictures of her granddaughter on Facebook and Pinterest. She denied this request from her family, who took her to court on the ground that the child’s privacy had been violated. In the Gelderland province, a judge ruled that the child’s picture could only be uploaded if the mother’s permission was sought in her capacity as legal guardian of the child. Further, it was held that the grandmother’s actions stood in violation of the G.D.P.R. The regulations hold that for a child below 16 years, the posting of pictures can only be authorised by legal guardians. This is a striking instance of how the G.D.P.R. provides individuals with control over how their data is collected, used and stored, which can be enforced against companies, the government and other individuals.
Marc Ehlsof and Celine Van Es, Netherlands: GDPR Update - GDPR In The Netherlands: One Year After, Mondaq, (13 June 2019).
Gannon Burgett, Dutch court rules grandmother must remove photos of grandchildren from social media under GDPR, Digital Photography Review, (21 May 2020).
Adam Satariano and Claire Moses, Grandmother’s Refusal to Remove Photos From Facebook Tests Privacy Law, The New York Times, (22 May 2020).
Private firms to get access to ISRO facilities
Recently, the Indian government has given the green light to private firms to access the Indian Space Research Organisation’s (ISRO) facilities. This move is in furtherance of increasing private investments in exploration, space technology and development. The government recognises that the private space sector is highly regulated and that may be a barrier to entry and a hindrance in using ISRO’s resources. Participation is encouraged through easing regulatory governance measures. This will enable the private players to improve their products. In the same address, the Finance Minister also promised a liberal geospatial data policy to tech entrepreneurs which will help them economically. Geospatial data about India is bought from foreign countries by Indians who want to work in fields that develop drought prone areas, irrigation facilities, etc. This move has been made in furtherance of having more home-grown space technology, thereby reducing the high costs involved.
ET Bureau, ISRO facilities to open for startups, private firms; new geospatial policy soon, The Economic Times, (16 May 2020).
TechGig Correspondent, ISRO opens testing facilities and geospatial data to startups and private companies, TechGig, (18 May 2020).
TE Narasimhan, Peerzada Abrar & Samreen Ahmad, Launch pad: Centre opens up space sector for private players to grow, Business Standard, (17 May 2020).