Reforming Australia's Safe Harbour for Internet Intermediaries: A Comparison of Horizontal Immunity – Australia and the USA

Abstract

The internet safe harbour created by section 230 of the Communications Decency Act has been described as one of the laws that built Silicon Valley. Australia does not have an equivalent law. The closest available is clause 91(1) of schedule 5 of the Broadcasting Services Act 1992 (Cth) (BSA Immunity), a law described by the NSW Department of Justice as of limited ‘utility'. The purpose of this chapter is to conduct a comparative analysis of section 230 and the BSA Immunity. On the one hand, the chapter seeks to outline how section 230 has helped develop some of the world's most successful platforms while, on the other hand, the chapter argues that the BSA Immunity's lack of utility has had a ‘chilling effect' on internet businesses in Australia. Following this comparison, the chapter discusses potential reforms to the BSA Immunity, which could assist in the development of future Australian start-ups.

Key Terms in this Chapter

Internet Intermediaries: Entities that facilitate use of the internet.

Chilling Effect: The discouragement and abandonment of certain actions (including innovation) due to a threat of legal sanction.

Section 230: The immunity available from certain laws under Communications Decency Act, 47 U.S.C. § 230 (1996).

Safe Harbour: A statutory exemption for certain entities from legal liability. A safe harbour may have various conditions that must be satisfied and application is limited to specific laws.

Intermediary Liability: The legal liability of intermediaries for the actions or content of third parties.

BSA Immunity: The immunity available from certain laws under clause 91(1) of schedule 5 of the Broadcasting Services Act 1992 (Cth).

Immunity: The legal status an entity experiences where it is not subject to a specific law or a type of law.