Is Facebook's care really contempt?

Is Facebook's care really contempt?

Summary: Facebook's answer as to why it removed vigilante groups that had posted details about accused fire-bug Brendan Sokaluk smells of fear that it may be as responsible as media for content published on its network.

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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."

Topics: Telcos, E-Commerce, Government AU, Social Enterprise

Liam Tung

About Liam Tung

Liam Tung is an Australian business technology journalist living a few too many Swedish miles north of Stockholm for his liking. He gained a bachelors degree in economics and arts (cultural studies) at Sydney's Macquarie University, but hacked (without Norse or malicious code for that matter) his way into a career as an enterprise tech, security and telecommunications journalist with ZDNet Australia. These days Liam is a full time freelance technology journalist who writes for several publications.

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Talkback

6 comments
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  • Facebook needs to know its place

    It's a clear case of Facebook being arrogant. I doubt the Victorain legal system gives a damn about Facebook's TOS. An order handed down by a court in a sovereign state has to be obeyed, particularly where that order is widely known to be in full effect. It doesn't matter where the server is located.

    Whilst facebook did the right thing their motives seem to be a little on the arrogant side and their stance amounts to corporate chest-beating instead of civic responsibility.
    anonymous
  • Facebook did not remove one of the main groups

    There has been some inaccurate reporting regarding one of the groups being removed by facebook.
    Yvette Langstaff creator of the "Brendan Sokaluk is the man who was arrested for arson" has closed the group after repeated threats and harrasment.

    As an Admin of this group i saw 1st hand the hrrasement and the unwanted phone calls at 2.00am in the morning, i have since had to have my number changed and made private.

    Anytime there was a photo of Brendan Sokaluk posted it was removed as soon as possible (cant be online 24/7)

    There was in fact only 1 group removed from Facebook and clearly this was a breach of the suppression order.

    Our group still exists on Facebook but it is closed to new applicants and are waiting as per request for Facebook to delete the group.

    If it wasnt for the constant harrasement and abuse this group would still be functional
    anonymous
  • What did you expect?

    Robbie Shenton, your surprise at what occurred after creating such a group is astonishing. In such a heated and emotional time did you really expect a level-headed non-emotive reaction from those joining the group or a similar response from those who saw what these irrational people had to say? What purpose did the group serve other than to attract messages from wannabe vigilantes?

    I don't see how a service providing an open online forum can possibly be expected to guarantee that all those who contribute will be aware of and obey court orders. People need to take responsibility for their actions, yet too many continue to treat the Internet as a tool by which they can vent or incite in ways they wouldn't otherwise do. I'd prefer to see tighter identification controls when joining such forums so people are accountable for their actions. Maybe the law should be that a SP must be able to identify the offending user(s).
    anonymous
  • Not quite so clear cut

    Facebookis right, but then so is the court order. Facebook's own Ts & Cs state;

    "You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libellous, defamatory or otherwise unlawful material."

    The groups in question clearly conflict with these conditions and Facebook would have become aware of the illegality on receiving the police request in relation to a court order. Therefore, it doesn't matter whether Facebook did it to adhere to the order or because they breached the Ts&Cs - it amounts to exactly the same thing: without the order, the pages weren't illegal - with the order, they were. So both sides a right and we are arguing about nothing more than semantics.

    They aren't responsible in the sense that Facebook could be fined or considered in breach of any law. Just as a town hall can't be fined for a speech made on its stage that incites violence. The individual would be. But there is absolutely no reason why Facebook couldn't remove material when notified by police that it is illegal in some way without any sense that they are forced to.
    anonymous
  • Yvette Langstaff

    After the trouble Yvette Langstaff caused, I couldn't beleive that she had the hide to whine about getting "harassed". Apparently our little Attention Seeker doesn't like it when she gets a taste of her own medicine. Its bad enough that she used the Victims of the Victorian Fires to get her 15 minutes of fame but even worse, she was boasting all over Facebook that she got PAID for her Media interviews! So much for "doing it give the fire victims closure." What a load of BS. You have to be pretty low to profit of the fire victims. And Sick. There's an Anti-Vigialante group now. Its logo has a pic of her with Idiot stamped on it. How fitting.
    anonymous
  • How about Grafitti?

    So if I spray something on a wall then the owner of the building could be held responsible for what I've written?

    Even if they post signs saying 'No Grafitti'?

    As far as I can tell Facebook is the owner of the building, the only difference is that their sign says 'You can grafitti our wall, just don't say anything mean.'
    anonymous