Defamation, Harmful Content and Civilising ‘Big Tech’

By Conor Brady

9th April 2021

Defamation, Harmful Content and Civilising ‘Big Tech’ Defamation is every editor’s and publisher’s nightmare. Like war, it rarely occurs on purpose, and is more often the result of miscalculation, misunderstanding, carelessness or a failure to anticipate how one’s language or utterances can be interpreted. Much the same can be said for content that may not actually be defamatory but that can be harmful or toxic. In both cases and also like war, the consequences are invariably costly.

Legal systems can vary in how they treat defamation, but the core meaning is more or less universal; material that is potentially harmful to another’s reputation and that is likely to lead to them being lowered in the opinions of others. It can be written, spoken or broadcast. It does not necessarily have to identify an individual by name.

Only a small proportion of such utterances end up in court, but that can cost dearly. Defendants can find themselves paying out fortunes merely to answer cases that will ultimately go nowhere. The ‘gagging writ’ has a long history of being used to intimidate critics faced with huge costs in order to meet charges that will probably end up being thrown out by a judge. It is a truism that it costs a lot of money to go into court, but it can sometimes cost almost as much to stay out of it.

In The United States, it is famously difficult to sue successfully for defamation because of First Amendment protections, but the ‘SLAPP suit’ (Strategic Lawsuit Against Public Participation) is an increasingly common feature of American courtrooms.

SLAPPs are actions designed to neutralise or silence critics by obliging them to meet heavy legal costs in preparing and lodging defence pleas. Plaintiffs know they cannot win and defendants know they are unlikely to face penalty, but they will incur heavy legal bills and they will have to invest costly organisational resources in responding to the charges. This is not an enviable place to be unless one has very deep pockets.

Earlier this year The New York Times found itself having to defend a lawsuit brought by the campaign committee to re-elect Donald Trump. The allegation of defamation was on foot of a Times essay written by Max Frankel which implied that there had been a 2016 pre-election deal between candidate Trump and senior officials of Russian president Vladimir Putin’s inner circle.

A first-year law student could have told the committee that it was on a hiding to nothing because of First Amendment protections. So there was no surprise in March when the New York State Court decided the newspaper had no case to answer and threw it out on no fewer than three separate grounds. The Times won, but the cost in time and legal resources was not inconsiderable. Happily The New York Times still has deep pockets in an era when so many news media companies are struggling.

SLAPPs also figure increasingly in the law lists in the United Kingdom, while Ireland, a much smaller jurisdiction, has its own serial litigants. These are wealthy individuals whose lawyers are instructed to serve multiple writs, usually on newspapers and sometimes on individual journalists or others involved in the public conversation.

Publishers, journalists and indeed political figures have spoken about having to contend with the “chilling” or “stifling” effects of these on their freedom to report.

‘Big Tech’ Not Held to Same Standard

But paradoxically, while mainstream media are obliged to carefully navigate this legal and editorial minefield, digital publishers are not held to the same standard.

The air over government buildings and legislatures in Europe and North America is filled with talk of reform and reigning in the overweening power of tech-giants, often decried as incompatible with democracy. But while there is much marching to-and-fro there is limited evidence of any great desire to get to grips with the problem. Candidate Joe Biden committed to revoking Section 230 of the Communications Decency Act, which legally immunises internet publishers, but President Joe Biden isn’t so sure he wants to do that. The EU has its Digital Services Act, which promises a “safer and more open digital space.” We shall see whether Brussels has any teeth with which to bite, as distinct from merely barking.

One must look to the Southern hemisphere and specifically to Australia to see any evidence of determination to put manners on ‘Big Tech’ and to try to detoxify the internet. Australians are notoriously litigious when it comes to libel or defamation and publishers have to contend with a hostile and expensive legal system that pretty well assumes their guilt ab initio. But the Australians have led with stringent legislation, providing for heavy fines and imprisonment for anyone who publishes harmful content on line or refuses to take it down when requested. Uniquely and courageously they took a stand against Google, on behalf of traditional media, calling on the tech-giant to start paying for the content it has been lifting for free from newspapers and other outlets over a period of almost 20 years.

We are probably at some sort of a watershed. The Covid pandemic has helped to reassert the primacy of government and to underpin the caring duties of the state in the face of threats to the common good. We have only had Covid for something more than a year but we have had a digital space that has steadily grown in its malignancy and its toxicity over almost a quarter of a century. Governments and trans-national authorities, like the EU and the UN cannot continue to look the other way as hate-speech and other harmful content grows exponentially on the internet.

The question is a simple one, really. Is the planet to be run by three or four mega corporations, without regulation, without responsibility and without any purpose beyond expanding their already bloated balance sheets? Or is it to be run by governments, elected to serve the people who put them there and to provide for their good?

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