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High Court of Australia rules hyperlinking is not publishing [pdf]
- alfiedotwtf 4y agoI wonder how this would impact a torrent search engine hosted in Australia
- tobyjsullivan 4y agoWould that be more akin to facilitating a crime? (I don't know anything about law - and even less about Aussie law)
- politician 4y agoIt’s interesting, right? I’ll bet it depends on the relative wealth of the parties.
- thaumasiotes 4y ago> I’ll bet it depends on the relative wealth of the parties. Sure, in the same way that the outcome of an election depends on the relative amount of campaign spending by each side. This is an example of a belief that is extremely common despite the fact that there is a mountain of evidence contradicting it and almost nothing in support.
- chid 4y agoI'm not sure what you mean by a mount of evidence contradicting? https://fivethirtyeight.com/features/money-and-elections-a-complicated-love-story/ https://fivethirtyeight.com/features/money-and-elections-a-c... Obviously it's not going to be 100% success... but are you saying that marketing doesn't work?
- ask_b123 4y ago> Turns out, advertising, the main thing campaigns spend their money on, doesn’t work all that well. But > unlike in the general election, early fundraising strongly predicted who would win primary races.
- thaumasiotes 4y ago> I'm not sure what you mean by a mount[ain] of evidence contradicting? > https://fivethirtyeight.com/features/money-and-elections-a-complicated-love-story/ https://fivethirtyeight.com/features/money-and-elections-a-c... Your own link is fairly explicit about this: > “I think where you have to change your thinking is that money causes winning,” said Richard Lau, professor of political science at Rutgers. “I think it’s more that winning attracts money.” > decades of research suggest that money probably isn’t the deciding factor in who wins a general election, and especially not for incumbents. > Most of the research on this was done in the last century, Bonica told me, and it generally found that spending didn’t affect wins for incumbents and that the impact for challengers was unclear. > the strong raw association between raising the most cash and winning probably has more to do with big donors who can tell (based on polls or knowledge of the district or just gut-feeling woo-woo magic) that one candidate is more likely to win — and then they give that person all their money. > 80 to 90 percent of congressional races have outcomes that are effectively predetermined by the district’s partisan makeup — and the people that win those elections are still given (and then must spend) ridiculous sums of money because, again, big donors like to curry favor with candidates they know are a sure thing.
- brigandish 4y agoIn the UK one of the two wealthiest parties always wins. Strangely enough, they've set up party financing and spending rules to suit themselves.
- th1s1sit 4y agoWhy would you try and find physical evidence of a mental hallucination except brain activity? Capitalism does not “actually exist”. It’s learned constraints on agency. I can’t just walk into Musks house and eat his food. I can’t walk into Tesla and alter products due to my meat bag not being referred to as billionaire Elon Musk. How much more evidence story mode still runs the world do you need?
- politician 4y agoPartiality in law is clear and the evidence is overwhelming. Poor defendants lose while wealthy defendants can drag out the process indefinitely. Wealthy plaintiffs can bankrupt individuals trying to defend themselves: the music industry used this strategy during the time of Napster -- feel free to look it up. Impartiality is the hypothetical story we tell ourselves to make us feel good about, for example, Hunter Biden taking selfies with 20g of crack cocaine while black men do 10 years or more for the same crime. There are so many examples that if this one offends your politics, let me know, and I'll provide you with examples that will comport with your preferred media source.
- thaumasiotes 4y agoProblems in the law are clear; partiality less so. Are there more black men who post selfies online with 20g of crack and never get charged for it, or more who go to jail for having 20g of crack? When Hunter Biden gets extra protection from the law, does that source more from his money or from his political status? When Michael Milken got extra persecution from the law, was his wealth an asset or a liability?
- politician 4y agoWhen high-status individuals get away with well-documented crimes with zero or minimal consequences while low-status individuals are taken to the cleaners by zealous prosecutors eager to pump their conviction rates, the public learns that all men are not equal before the law and that corruption is acceptable to the people that matter. This is well-understood and I’m not breaking any new ground here by saying so. What I am saying that is perhaps offensive or provocative is that this happens in the USA.
- thaumasiotes 4y agoSorry, were we talking about partiality to high-status individuals or partiality to wealthy individuals?
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- chid 4y agoI doubt it would 'allow' it, given that the Federal Court has ordered ISP to 'censor' certain torrent websites. https://en.m.wikipedia.org/wiki/Internet_censorship_in_Australia https://en.m.wikipedia.org/wiki/Internet_censorship_in_Austr... It is an interesting point though, it's not publishing but in my limited understand it just means that Google isn't bound by links that it has on its pages.
- cmroanirgo 4y agoAs much as I'd like torrents to be more tolerated, there is a difference in that the torrent sites contain the .torrent files which contains all the necessary info to download files. ie, They're supplying more than just a link.
- r3trohack3r 4y agoThis isn't true for magnet links, which are just hashes that are used as keys in the DHT'S KV store. Example is btdigg which exclusively crawls and indexes magnet links from the DHT
- Gigachad 4y agoThere is legally and effectively nothing different about the two. They both give you what you need to get the file. The extra layer of indirection of having to get peers from DHT rather than a tracker doesn't matter.
- d0mine 4y agoGiven the topic is the difference between an article and a link to it (one level of indirection), the indirection does matter (at least, if you are google).
- Dylan16807 4y ago> They both give you what you need to get the file. I can give you what you need just by telling you to torrent f09c8d0884590088f4004e010a928f8b6178c2fd That's even less than a hyperlink. It would be absolutely ridiculous to say that I'm publishing the torrent.
- quickthrower2 4y agoI guess it means they couldn't be sued for defamation because of the contents of one of the torrents?
- cwillu 4y agoSo long as they didn't encourage discussion of the contents of the torrent (paragraph 33) nor enticed the user to choose that torrent over another one (paragraph 51). Or anything else considered in the decision (I'm only a quarter of the way through reading it :p)
- ponco 4y agoIt's a defamation case and you will note the main question was whether or not publication occurred. The rules governing dissemination of copyrighted material are completely different.
- d0mine 4y agoif providing a link by google to an article is not publishing then why do you think providing e.g., a hyperlink to a magnet link by a torrent search engine becomes publishing of a copyrighted material? (torrent search engine shows links to a link to a "link" to a material)
- adamjb 4y agoThe laws in Australia refer to "facilitating" copyright infringement. Whether or not a torrent website is a publisher is entirely immaterial
- d0mine 4y agoBy this logic, google "facilitates" the defamation by providing hyperlinks to the article. The court disagrees.
- denton-scratch 4y ago"Facilitating" defamation isn't defamation, so not a crime. Facilitating copyright infringement is explicitly prohibited, whatever the definition of "publish" is.
- d0mine 4y agoThis is absurd. Where does it end? iphone allows to watch copyrighted material. Should apple be responsible for any infringement?
- denton-scratch 4y ago
- benhoyt 4y agoAnyone in the know care to summarize what this is more specifically, for those of us not eager to read 97 pages of legalese?
- hugh-avherald 4y agoLawyer was charged with murder. Google linked to an article which said that as a result organized crime had lost an important friend. Search result of his name turned up this article. Lawyer sued Google for publishing defamatory material. Google argued they weren't a publisher, but had merely hyperlinked to it. High Court agreed.
- EGreg 4y agoSo how does this bode for the lobbying by Ruper Murdoch and co to force search engines to pay for linking to news articles ?
- weq 4y agoexactly. murdoch controls australia, nothing like a bit of outrage to get the tabloid pumping. he will no doubt now smear said high court judges
- monkeycantype 4y agoNot tightly enough to win the last election though :)
- stephen_g 4y agoMurdoch's grip is slipping. He failed to turn the last Federal election, and has failed with about five State elections despite publishing huge amounts of rabid nonsense about the party he was trying to get out and massive support for the party he was trying to get in. He used to have a very high success rate getting the party he wanted in, but in the last few years he seems less and less effective. Part of his issue is all his stuff has gone so far right with Sky News (especially 'After Dark' shows) and the tabloids (which also basically includes The Australian now), similar to how Fox News in the US went. But it seems that while he is pulling in a number of crazies, it's seemingly nowhere as big a proportion of the population as in the US. So more people seem to be switching off than getting pulled in (thankfully).
- ggm 4y agoHyperlinking can still be constrained by other laws. So, this has high specificity as I see it. The specific constraints applied in the suit which led to the High Court have been found not to apply. I don't have a list of what do, I just hypothesise there could be other constraints. Private agreements, CSAM laws, IPR laws, which go to why you cannot provide a hyperlink. Not a Lawyer.
- cwillu 4y agoIndeed: “To accept that the provision of a hyperlink is not enough to amount to participation in the process of publication which is completed when a third party clicks on the hyperlink so as to view the webpage, however, is not to deny that the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of matter on that other webpage. […]” [¶66]
- contingencies 4y ago[PDF] in title please
- YPPH 4y agoJudgment summary: https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2022/hca-27-2022-08-17.pdf https://cdn.hcourt.gov.au/assets/publications/judgment-summa...
- caf 4y agoYes, that's probably a better link than the full judgement.
- crote 4y ago"[Google] had not participated in the (..) disseminating of the defamatory matter" is an _interesting_ take. Many websites rely on search engines for a significant part of their traffic, and the fact that people pay for ads in search results underwrites this. If Google plays a significant part in getting content to people's eyeballs, how do they not "participate in disseminating"? Furthermore, the judgement makes it sound like Google's algorithm is fully neutral, that the results are the outcome of a simple mathematical algorithm. But Google is well-known to alter search result by manually boosting or banning websites. Given that Google has editorial control over the results, does the continued showing of misleading search results not count as defamation? How is it not the same as a newspaper continuing to call someone an "accused murderer" years after they have been acquitted? In my opinion, Google gets to eat its cake and have it: full control over the content and none of the responsibility.
- Spivak 4y ago> How do they not "participate in disseminating"? Not Disseminating: "Hey man, I really liked the new season of Stranger Things, you should check it out on Netflix" Disseminating: "Hey man, you should check out the new season of Stranger Things, here's the DVDs." > Does the continued showing of misleading search results not count as defamation? Defamation: "You shouldn't trust Ted Cruz, he's the Zodiac killer." Not Defamation: "Hey you should go read the Post's article about Ted Cruz, they're saying he's the Zodiac killer."
- AnimalMuppet 4y agoWow. The world rotates clockwise down there, but somehow they still have their heads screwed on tight.
- ponco 4y agoGiven how the HCA has taken so many traditional (archaic) views on media publication recently (see Voller 2020) I wonder to what degree this a political decision. The respondent is a very unsavoury figure in the legal world. Any lawyers able to interpret how narrow or broad the ruling is?
- YPPH 4y agoThe Australian High Court is generally not partisan or political. The Justices are not generally predictable in their rulings, unlike in the US. So, if you're right that it's an archaeic view, I wouldn't put that down to politics. An example is a recent hot button issue where the Court ruled Aboriginal Australians could not be classified as "aliens" under the Constitution (Love v Commonwealth). The decision was condemned by conservative media as judicial activism. The majority comprised Bell, Gordon, Nettle and Edelman JJ, the latter 3 were conservative government appointments.
- cwillu 4y agoI found the ruling to be pretty cognizant of the nature of the web, drawing apt analogies with librarians looking up and leaving post-it notes on books while following references, and (importantly) noting where the analogy breaks down in places relevant to the decision at hand.
- cwillu 4y agoEven the dissent shows cluefulness, pointing out that “although the Google search engine system operates in a "fully automated" manner 140 , the systems of which it is comprised are designed by humans and operate as they are intended to operate” [¶108]. “Here, Google was fixed with knowledge that Mr Defteros claimed the material was defamatory when a solicitor [...] lodged a removal request on Google's website for the Underworld Article to be removed from Google's search results. Google was provided with the Uniform Resource Locator ("URL"). The removal request form was provided and generated by Google. [...] Google was therefore aware of the defamatory character of the Underworld Article a reasonable time after having been given notice and the defence of innocent dissemination cannot be established.” [¶113] “Contrary to Google's submission, its vast repository of information obtained and organised by the web crawler and indexing programs is not "an undifferentiated mass until a search is requested". And in crawling and indexing, news articles are a particular, if not primary, focus. A webpage which appears to be a news article, importantly, is separately crawled – identified – and indexed as such a page 181 . "Important" webpages are crawled more often 182 . The web crawler program and the ranking algorithm's focus on "important" webpages, the crawling of such pages for updated data more frequently, and the PageRank and freshness clues used by the ranking algorithm then combine to produce search results in response to a search query 183. The design of the Google search engine system as a whole is intended to, and does, affect the results that are produced when a user enters a particular search query. And it is for that reason that, in seeking protection for its search results under the First Amendment to the Constitution of the United States, Google has itself successfully argued that the design of its search engine system involves the exercise of evaluative judgment 184.” [¶123-124] Essentially saying that “hey, you said (and the US supreme court agreed) your results are protected as free speech because you're exercising judgement in preparing them, so why should we agree that you're not exercising judgement in preparing them now?”
- upupandup 4y agoI remember talking to that guy who started watch simpsons online in 2009, 2010ish. He was sued to oblivion just because he linked to video hosts. A couple years later Megaupload was raided.
- zmmmmm 4y agoSeems like a dodged bullet. There is little to no constitutional protection for free speech in Australia and defamation is routinely employed successfully in fairly speculative situations (for example, politicians, as public figures, suing journalists they don't like). Every time a question comes up like this it is genuinely an unknown what the court will do and no clear precedent suggesting they weigh potential broad impact of decisions heavily in their judgement. So this could easily have come down the other way and we could have a precedent suggesting potential liability for literally anybody who links to anything.
- BLKNSLVR 4y agoAs an Australian, I'm actually a little bit surprised that, seemingly, common sense has prevailed over what appeared to be the preference of the politicians.
- zmmmmm 4y agoyes, it's depressing ... perhaps we just don't hear about the "common sense" ones but perception wise it feels like common sense is the exception rather than the rule for sure.
- philliphaydon 4y agoThis might be a dumb question… But doesn’t this mean having a site with bit torrent magnet links would be legal as you’re not hosting or publishing copyrighted material?
- 8n4vidtmkvmk 4y agoi thought that was already the case. or at least legally grey
- stonegray 4y agoMagnet links are especially interesting in this context as they're essentially a 20-byte number, and contain no data about what they link to aside from the hash. https://en.wikipedia.org/wiki/Illegal_number https://en.wikipedia.org/wiki/Illegal_number
- beardog 4y agoMagnet links can specify a name for the download ('dn'), tracker addreses to find peers ('tr') (but DHT can be used these days), and actual links to the files on the web via web seeds. However they can be as bare-bones as you say.
- cwillu 4y ago“To accept that the provision of a hyperlink is not enough to amount to participation in the process of publication which is completed when a third party clicks on the hyperlink so as to view the webpage, however, is not to deny that the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of matter on that other webpage.” [¶66] “It will be recalled that the Court of Appeal in this case adopted the possibility of defamatory matter being published by way of incorporation by reference into a search result. In our view, this suffers from two difficulties. The first is that whereas incorporation by reference clearly has a place in contract law 64 and other areas of law, such as patent law and the law relating to wills, it can have no place in the law of defamation, which requires that the defamatory meaning be conveyed for publication to be complete. [...]” [¶45] I'd be wary of claims that this is broad decision affecting all areas of Australian IP law. Also be mindful that “publication” has a technical meaning; one of the dissenting opinions makes a good case that the majority is erring [¶149-154].
- deleted 4y ago[deleted]
- gorgoiler 4y agoThis was about content, not just hyperlinking. On page 5 the judgement clearly talks about full search results where each result is “comprised [of the] title of webpage, snippet of content, and hyperlink”. “Australian court rules that link previews are not publishing” …perhaps?
- cwillu 4y agoI mean, it was brought up, but the opinion seems dismissive: “Unlike the position in Duffy, no feature of the content of the particular organic search result in the present case has been found to have operated as an enticement or encouragement to click on the hyperlink.” [¶71] (Description of Duffy for reference: “Thus, in Google Inc v Duffy 91 with reference to Hird v Wood, the content of the snippet component of several Google search results was said to have been such as to "entice" a third party to click on the hyperlink in those search results to obtain more information. That was because the snippet component "naturally invite[d] the reader to click on the hyperlink for explanation and elaboration" of the matter 92 , such as to be aptly described as "the electronic analogue of the person who places a post-it note on a book which reads 'go to page 56 to read interesting gossip about X'" 93 .” [¶67])
- brokenmachine 4y agoDoes this have any implications for that case between Google/Facebook and the media companies where they had to pay them to link to their stories??
- nl 4y agoNo. That is a specific legislation which is dumb, but is limited to specific designated properties under specific circumstances, and doesn't modify liability.
- hkt 4y agoIs this the highest court in Australia? I'm from the UK and don't know the system there, but know some former colonies use the UK's privy council as their highest court. I'm guessing that's no longer the case, but if someone could clarify whether this ruling can be appealed I'd really appreciate it!