Chiranut Trairat’s husband killed their 11-month-old daughter live on Facebook, then killed himself. (AP)
Facebook, the world’s biggest social network, says its mission is to “give people the power to share”, but what happens when its users choose to share a murder, or even a suicide, live online?
- Facebook faces an increasing problem with hideous crimes being livestreamed.
- The social network is hiring thousands of extra monitors to keep watch.
- But the laws around responsibility for livestreams remain largely untested.
How could that even happen?
A little over a year ago Facebook launched a feature called Facebook Live that allows anyone to create live broadcasts for the world to watch.
At the launch, company founder Mark Zuckerberg said: “Live is like having a TV camera in your pocket. Anyone with a phone now has the power to broadcast to anyone in the world.”
After the video has been broadcast live, it is typically available to play on demand.
The results of giving that live broadcasting power to “anyone” have been plain to see.
Most videos (or ‘lives’ as Facebook likes to call them) pose no problem, but there have also been numerous instances of self-harm and violent criminal conduct being broadcast live for all to see.
What sorts of things have happened?
In July 2016, the girlfriend of a man shot and killed by police in Minnesota livestreamed the aftermath, including pictures of his bloodied body.
There have also been livestreams of a drive-by attack on three men in a car and the racially-motivated abuse of a white intellectually disabled man.
Then in April this year in Cleveland, a man named Steve Stephens allegedly uploaded a video to Facebook stating he was planning a murder, then another video showing the murder. He then made a live confession before taking his own life.
Steve Stephens took his own life after a Cleveland man’s murder was streamed on Facebook. (Facebook: Steve Stephens)
That incident led to this response by Facebook vice-president Justin Osofsky:
“It was a horrific crime — one that has no place on Facebook, and goes against our policies and everything we stand for.
“As a result of this terrible series of events, we are reviewing our reporting flows to be sure people can report videos and other material that violates our standards as easily and quickly as possible.”
Also in April, a man in Thailand broadcast himself killing his baby daughter in a live video on Facebook, before he turned off the camera and took his own life.
These are just a few among many examples.
Equally troubling have been the number of reported cases of self-harm and even suicide broadcast live on Facebook.
Daniel Reidenberg, the managing director of the US-based National Council of Suicide Prevention, worries this could become a growing trend.
“The magnitude of this is currently small, but could increase with extensive media coverage on the topic and others using the livestreaming platforms to broadcast self-harm,” he said.
How is livestreaming policed?
Facebook is boosting its monitoring staff as it attempts to curb violent live-stream videos. (Reuters: Dado Ruvic)
At the moment, the livestreaming platforms are essentially regulating themselves.
YouTube, Facebook and other social networking sites all have community standards and procedures for taking down content once they have been alerted to inappropriate material.
In the case of Facebook Live, once a user alerts Facebook, a person in the ‘Community Operations Team’ may result in the stream being stopped or removal of the video.
But the system is reactive and reliant on other users: the ABC has been told there is no technology currently available that can effectively detect and remove offensive content from a livestream without human intervention.
The limitations of the existing system were demonstrated by the April incident in Cleveland.
Facebook says it only received a report about the live confession after it had ended, and it took 23 minutes to disable the user’s account after the first report about the uploaded murder footage.
Facebook cannot currently use artificial intelligence to detect and remove offensive livestreams. (Reuters: Stephen Lam)
On May 3, Mr Zuckerberg announced plans to hire an additional 3,000 people for the review team, on top of the 4,500 he says they already employ.
“We’re working to make these videos easier to report so we can take the right action sooner — whether that’s responding quickly when someone needs help or taking a post down,” he said in a statement.
Facebook has also implemented ‘suicide prevention tools’ to get in touch with people in real time when there are reports of possible self-harm.
“A lot is being done by Facebook and others [but] we need to continue to look at policies, monitoring and escalation procedures, reporting functions and early detection to help avoid future livestreaming of suicides and self-harm,” Mr Reidenberg from the National Council of Suicide Prevention said.
“We also need to do more to teach people about responsible use of the platforms and how to take better care of each other.”
Where does Government regulation stand?
Back when television and radio were kings, Australian law was clear that a station had responsibility for the content it broadcast.
But the law in relation to internet content providers is much murkier.
In the late 1990s, Australian broadcasting law was changed to give some protection to “content hosts” and “service providers” who physically host content in Australia.
In a nutshell, they may avoid liability for offensive user content if they take it down when they are alerted about it.
But this law was brought in during the infancy of the consumer internet in Australia, and was focused on internet service providers, well before the concept of users sending out live broadcasts from their phones was realistic.
David Vaile of the University of NSW Law School suggests that “livestreaming breaks the already compromised regulatory model”.
“The after-the-fact notification or takedown effort model already had problems with stored content, but it is intrinsically ineffective for activities like live broadcast,” he said.
“That’s why some radio has a few seconds delay imposed on shows which risk live broadcasting of offensive or illegal material.”
Do defamation laws apply to livestreams?
Facebook is increasing its suicide prevention tools, including new options for Facebook Live.
A defamation claim is typically a claim for damages brought against a person or company that published or said something untrue that hurts the reputation of the person making the claim.
Defamation laws do apply to internet content, whether that be a reader comment on a news story or a live video stream.
The real bone of contention is who and where you can sue.
Defamation law varies dramatically between countries: it is much harder to win defamation cases in the United States than in Australia or the United Kingdom.
Whether you can sue in a particular country depends on where something has been “published”.
In 2002, the Australian High Court found that material on the internet is “published” in Australia if it has been downloaded and read in the country, even if the publisher or its server is based in another country.
It would not be much of a stretch to find that a live video broadcast from the US but viewed in Australia has been “published” in Australia.
But who do you then take action against?
In the world of traditional media, a person defamed by a publication can take action against anyone directly responsible for the publication, but will typically focus on the person or company with the deepest pockets.
That is usually the media organisation.
But in the case of livestreaming, it is unclear when the platform provider such as Google or Facebook legally becomes the “publisher” of the information.
As noted by NSW Supreme Court judge Lucy McCallum, it is an accepted principle that “a person involved only in dissemination is not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory”.
There have been a few inconsistent cases on the issue of internet content hosts — mainly concerned with liability for Google searches.
As it stands, it would seem that if the live streaming provider is informed of a defamatory video and does not stop the stream (or take down the archived video) within a reasonable time, it is at risk of being seen as a publisher and therefore liable for what is said and done during the stream or video.
What about criminal consequences?
There are a few criminal law issues that arise out of the use of video services on social media.
In the age of mass terrorism, it is conceivable that someone could be encouraged to commit horrific acts by the fact they can broadcast what they are doing to a large audience.
Has the platform provider incited a criminal act?
David Vaile of the University of New South Wales says it is unlikely a platform provider would be criminally liable in Australia.
“It may be hard to make the case that the footage is published as an ‘incitement or instruction’ to the commission of a crime, given Facebook or YouTube would not know their users’ intentions ahead of time,” he said.
“But the higher the rate of death and abuse shown through the new, unmediated livestreaming model, the more questions will have to be asked about whether we need to re-think the blanket immunity [from criminal prosecution] for commercial publishers: how many deaths will be needed before reality catches up with this virtual loophole?”
Another area of concern is material broadcast that could interfere with court proceedings. This is a criminal offence called ‘sub judice’ that traditional media works hard to avoid.
Sub judice is the offence of “publishing material which has a tendency to interfere with the administration of justice” after someone has been charged or arrested or civil proceedings have been launched.
The risk of this is low when it comes to the video footage of the crime being tried in court: once reported, it is likely that site would be cooperative and take it down.
But new livestreams of people giving their opinions about proceedings currently before the court?
That is a tougher issue that is likely to again come down to whether a court finds that Facebook, Google and their ilk are found to be publishers (akin to a TV or radio broadcaster).
Is there a level playing field?
As it stands, while livestreaming platforms may be able to escape liability for user-generated content, existing broadcasters are held accountable for everything they broadcast, including during live broadcasts and talkback calls.
In 1998 in his seminal legal textbook, The Law of Torts, Professor John Fleming described the legal position (in regards to defamation) as follows:
“Radio and television stations are original publishers, whether broadcasting their own or someone else’s programs and, as such, are not analogous to newsagents or video stores.
“Even in transmitting live programs or simulcasts, which may make it more difficult to anticipate defamatory episodes, they play an active role in publishing to the world and must face corresponding responsibility.”
With all the technological advances that we have seen since then, is it justifiable to make a distinction between video or audio broadcast online and that broadcast on television or radio?
How different is Mark Latham’s Outsiders on Facebook Live to his old show Outsiders on Sky News?
Professor Dan Svantesson of Bond University Law School says the difference between media does justify different regulatory treatment.
“In my view, the difference in scale is so significant that it amounts to a difference in kind,” he told the ABC.
“Live TV and radio broadcast are ‘controlled’ to a completely different degree than are platforms onto which people are upload just about anything they want.”
Of course, Facebook and YouTube could choose to restrict access to its platforms or review every piece of video before posting. They choose not to do so.
Joan Warner, CEO of Commercial Radio Australia, suggests there is “a mismatch of policy in a converged world and it is not an even playing field”.
Similarly, Free TV Australia acting CEO Pamela Longstaff says her organisation, which represents free-to-air television broadcasters in Australia, “is cognisant of the disparate regulatory framework between broadcasters and new entrants”.
“The regulatory framework must be updated to enable commercial free-to-air broadcasters to compete with global media technology companies on equal terms,” she said.