YouTube Kowtows to Lawfare in Australia:
Originally published under the title "Billions for Tribute, But Not One Penny for Defense?"
On May 18, 2015, YouTube – or really its owner, Google, won a major victory for free speech. A U.S. appeals court rejected an actress's attempt to prevent YouTube from showing a movie trailer critical of Muhammad that has been blamed for 'causing' riots in the Muslim world on September 11, 2012.
Sadly, when it comes to criticizing Islam outside the U.S., Google is much less brave. It appears to have capitulated to Islamist lawfare in Australia without firing a shot in defense.
The Q Society of Australia posted two YouTube videos (first here, second here) contending that Islamists are trying to spread Shari'a Down Under by using Australia's halal food certification industry as a vehicle to impose a sort of hidden tax.
On December 24, 2014, Mohamed El-Mouelhy filed a defamation claim against Q Society, Kirralie Smith, Debbie Robinson, and YouTube for injuries allegedly caused by the videos. Smith is the speaker in the videos, and Robinson is Q Society's president.
On March 19, without even responding to the claim, YouTube blocked access to the videos from Australian IP addresses.
View from Australia: August 2013
Despite repeated requests, YouTube has refused comment on whether it settled with El-Mouelhy, or on what terms.
The halal industry is a booming business in Australia. El-Mouelhy's company, Halal Certification Authority Pty Ltd, is one of several offering this service.
The videos contend halal certification has expanded well beyond food, with fees demanded to certify items like feeding troughs and transport vehicles, and demands that certified businesses use only Shari'a-compliant financing. Q Society suggests some certifiers' tactics are extortionate. They maintain certification is not even required for many foods and is often not labeled on the product. Therefore, they argue, it does not serve a legitimate purpose of helping Muslims identify religiously-acceptable food. Smith states that El-Mouelhy told her certification is often a sham, and that in at least one case he offered to provide certification in exchange for payment, with no intention of conducting the required inspection. Smith doubts certification's potential to increase sales and suggests it simply increases consumer costs.
View from Australia: April 2014
YouTube failed to appear at any court hearings. On March 19, 2015, it notified Q Society that the videos had been blocked from view by Australian viewers, because YouTube had received a legal complaint. The next week, El-Mouelhy notified the court he would not move forward against YouTube.
A senior associate at a pricey law firm in Sydney, Australia, would cost less than US$400 an hour. Google, YouTube's parent company, reported gross profit of $40.3 billion and net profit of $14.4 billion for 2014. YouTube accounts for about 7% of that amount, still in the billions of dollars. Certainly, YouTube could afford its legal fees better than any other party to the lawsuit. The risk of liability has also been greatly lessened by Australia's 2006 adoption of uniform defamation laws, which significantly reduced award levels.
Once upon a time, the public square was, well, public. As exchanges that once occurred there moved, first to shopping malls and then to the internet, the 'space' in which people once expressed their opinions changed from public to private hands, and may be blocked at the owners' option.
YouTube boasts that it has more than a billion users, and that 300 hours of video are uploaded to it every minute. To encourage interactive internet services like YouTube to keep their e-space open to the public, the U.S. Congress passed legislation (the Communications Decency Act of 1996) shielding them from liability for defamation based on videos uploaded to their websites. This is on top of the standard protection U.S. law gives people accused of defamation. A plaintiff must prove, not only that a defendant said something defamatory, but also that the statement was false.
In Australia, it is vice versa. Like English law, Australian law places the burden of proof on people defending against a defamation claim, who must prove their statement is true. Perhaps for that reason, El-Mouelhy excepted the United States from his claim.
Australian law does let re-publishers claim "innocent dissemination" as a defense, meaning a video-sharing website like YouTube could claim it did not know that internet content it was hosting was defamatory, but that would only shield it from liability up to the time it was made aware of the content. The defense prevents third parties like YouTube from being 'in for a penny, in for a pound,' and arguably gives them an incentive to settle defamation claims quickly.
That seems to be what happened here, although YouTube refuses to confirm the fact and terms of settlement, including whether YouTube paid any damages. It is not surprising that YouTube opted for a fast and likely inexpensive exit from the suit, giving El-Mouelhy a victory at little cost, without testing the truth of his claims. But it is unfortunate that YouTube gave in so readily, without even contacting Q Society or asserting a defense. The free speech on which it depends, enabling its billion users to upload and read the videos it hosts without fear of harassment or prosecution, does not flourish when it is not defended.
YouTube's decision to take a knee here does not bode well for future lawfare lawsuits or the protection of free speech.
Johanna Markind is associate counselor at the Middle East Forum
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