Is Facebook's care really contempt?

Facebook's cautious answer as to why it removed vigilante groups that had posted details about accused fire-bug Brendan Sokaluk smells of fear. Could it, like general media, be held responsible for content published on its network?

Facebook's decision to pull the groups on Wednesday couldn't have been more perfectly timed: as its CEO Mark Zuckerberg attempted to convince his users that they really do own the content they publish on Facebook, locally it was commandeering "user's content" because Facebook decided those groups had breached its terms of use.

In other words, Facebook's lawyers thought it was not subject to the court order; it was just following its own rules.

The decision to take down the groups came after the Victorian Police told the media that it feared the Facebook groups could threaten the Department of Public Prosecution's case against Sokaluk.

Facebook responded quickly, but told media it did so because the groups had breached its terms of use. "We will remove groups reported to us that are found to express hatred or threaten violence towards people," spokespeople said.

In other words, Facebook's lawyers thought it was not subject to the court order; it was just following its own rules. At least that's how criminal lawyer David Galbally QC, who was interviewed on Sunrise yesterday, interpreted Facebook's comments.

"Facebook say they're not responsible. But that's wrong and nonsense. They're displaying it in a jurisdiction that breaches an order," Galbally said.

"We need to have a law that makes the website provider responsible for what it is that's being displayed on the internet, particularly in circumstances that breaches or tends to breach a court order," he added.

But if that's what should happen, it's certainly not what has happened in the past.

A lawyer friend of mine reckoned there are three analogous scenarios: eBay being used to sell counterfeit software; the court order preventing Channel 9 from airing the first series of Underbelly in Victoria being undermined by YouTube; and the case being brought by the Australian Federation Against Copyright Theft (AFACT) against ISP iiNet.

eBay typically handles the issue of counterfeit sales in its terms and conditions, my friend said. A good example is Microsoft's recent legal action, which was directed at the sellers and not eBay.

The Underbelly court order is much closer to the issue of whether Facebook is responsible. Although no individuals were charged with contempt of court, David Vaile, University of NSW Cyberspace Law and Policy Centre executive director told News.com.au at the time those who uploaded the series could face copyright and contempt of court charges, rather than YouTube or BitTorrent.

The AFACT versus iiNET case is more tangential than the first two, but that shows some of the difficulties in holding a service provider responsible for its users' actions.

Galbally is the only person I've heard say that Facebook should be responsible for obeying the court order. If he's right, we might see Facebook place an advertisement on its network asking: "Wanna make $150 a day for sitting at your desk and reading? Click here to apply."