The outrage economy is eating public debate and dismantling community trust. So how to regulate it? How to ethically monetise it? Yesterday’s High Court decision took a stab at an answer.
It’s about how the Facebook algorithm has worked to degrade Australian media and how publishers have leaned into the FB model to support their traditional ad-supported businesses.
There’s a touch of comic absurdity in common law with the courts adapting a 1937 English decision about allegedly defamatory claims stuck up on a suburban golf club notice board to confirm that on Facebook, as on the worldwide web, the publisher is responsible for what’s on their page — including comments posted on their Facebook pages by third parties.
Whatever the legal justification, the High Court agreed with the NSW courts: you play the game, you pay the price, favourably quoting primary judge Justice Rothman that third-party comment affects the algorithm “and increases the profile of the Facebook page and the consequential popularity of the Facebook page, thereby increasing readership … and augmenting advertising sales”.
“Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences,” two of the High Court judges added.
The use of indignation, resentment and fury to game the Facebook algorithm is the core of the outrage business model. And the courts, it seems, aren’t having it, saying the publishers’ “attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality”.
The decision is also a slap in the face for the industry’s self-regulator, the Australian Press Council, who in the “Enemies of the State” decision last week accepted News Corp’s contention that “it was difficult to anticipate social media responses to reports” and so shouldn’t be held accountable for the racist vilification its story generated.
What’s the choice, the publishers ask? The evidence in this case (launched by Dylan Voller) demonstrated that in 2017 (when the offending comments were posted) 53% of unique monthly visitors to The Australian’s web page, for example, came from the masthead’s public Facebook page. By the time of the first decision in 2019, the Facebook pivot to prioritise posts from family and friends in news feeds had seen that fall to 39%.
Right now, Facebook has been trialling a further cut of news in the news feed in some markets and is likely to roll it out across its platform. (Facebook says it’s already less than 6% of content that users see.)
It’s not just bad reporting. Plenty of good journalism gets caught up in social media’s outrage maw. For example, any reporting on race or gender, sympathetic or not, will bring out the trolls (which is why many publishers, including Crikey, will turn off comments). Women journalists and journalists of colour are themselves the target. Just this week, the ABC’s Lisa Millar suspended her Twitter account after finding herself a target in the COVID wars.
The publishers meanwhile have hardened paywalls to drive subscriptions, with only their free news services (news.com.au, nine.com.au) still exclusively reliant on ads. This reduces the imperative to use social media: unless it triggers a subscription, the click will expire on the masthead’s sign-up-here splash page.
The defamation law, too, has already been changed (in NSW and Victoria, at least) to encourage conciliation (which would allow the companies to take down the offending comments) and by requiring evidence of substantial harm.
The committee of attorneys-general is also considering a discussion paper on the appropriate levels of indemnity for different players in the internet and platform world, including forum hosts, whether News Corp and Nine or local Facebook community groups (where most defamation cases actually play out.)
Facebook, Instagram and Twitter have made things easier by enabling users to switch off, restrict or more simply moderate comments — assuming the publishers are prepared to employ people to do the work.
There’s risk in the High Court decision for Facebook too. Under pressure from the federal government earlier this year, Facebook agreed to pay News and Nine for articles in its proposed News Tab (still not available in Australia). Absent an indemnity, Facebook could, in turn, find itself a “publisher” in Australia’s courts.
A good start would be getting rid of anonymity in social media and on the internet generally. Publish under your own name (verified) and stand behind your words.
A bit of a danger for whistleblowers though.
Seriously who blows a whistle by posting directly on the internet. It would be completely lost in the torrent of hearsay, allegations and general opinionated nonsense that floods around.
I am continuously amazed by what people will write online under their own name, heck, even under their own name and employer in the case of LinkedIn. So I don’t think anonymity is the only driver.
Imagine the Nut cases that would get vindictive if the narrative was not to their liking? Like here on Crikey for example. So no it would be avery bad idea.
We will, of course, arrive at the place I’ve been advocating for for nearly 20 years. Anyone who wants to avoid being sued will only publish material with a recognisable author attached to it. It will be the only viable – and only genuine – ‘free speech’ (‘speaking freely’) option available. And journalism, public debate, open and healthy discussion….will all be infinitely the better for it.
You will figure it out eventually. I am a patient fellow.
You’re all welcome.
So, how is a person like myself who has had no legal training whatsoever to know what the difference is between comments that are defamatory and those which are not defamatory. Knowing lawyers, they would argue that almost anything was defamatory if they thought there was a dollar to be made.
I think that the High Court wants us all to be too afraid to speak our minds. I doubt that this would get up in America where they have the First Amendment.
Both the LNP government and consolidated legacy media running protection are complicit in ‘engineering’ (Curtis) or ‘manufacturing’ (Chomsky) consent.
There are two entwined issues related to business and politics. Legacy media i.e. 9F, 7WM and NewsCorp, are now central in messaging and manipulation for the LNP government, while the same legacy media run protection for the latter.
Fairfax newspapers have been accused of only allowing comments that follow or concurs with an article’s themes and sentiments, media outlet moderated comments may be viewed as an unnecessary ‘cost’, while smaller or independent media outlets, journalists and commentators have been targeted for mischievous defamation suits, hence, been compelled to not allow comments due to legal risk…..
Quite disturbing, but not to most Australians when our consolidated media and national government operate in lockstep to guide the electorate aka Russia, Poland and Hungary; nations where much white Christian nationalism and autocracy abounds through encouragement of media and government.
I see hateful comments a lot but I don’t see a lot of defamatory comments. The main problem with comments ideological. Newspapers screen out what doesn’t suit their lying agenda.
For example News Corp will delete anything that goes against say, their anti-trans platform. Or if they are writing about crime you point out the rich commit lots of crimes they just don’t get policed as much.
The progressive media ran a lot of articles saying the Covid supplement did not impact on anyone’s decision to go to work and higher welfare doesn’t stop people working. I’m a minimum wage worker. This is simply untrue. The Covid supplement equalled my wage. I did not work during it, why would I? I’m not a martyr. There is a serious issue that some people find the gap between welfare and picking up some min wage work to be too small, so why bother. If you comment about this on say The Guardian you will be blocked.
Our media is highly ideological and comments can sometimes be helpful to point out mistruths, mistakes and so on or give a different perspective. Yet they are constantly deleted if they don’t tow the line.