Kym Fraser
Partner •
Melbourne, Sydney
New Anti-Trolling Bill intends to assist "victims" identify who defamed them on social media
There are potentially significant consequences for the future landscape of defamation claims (which may become squarely focused on the individual commenter rather than "secondary" publishers), which is likely to require further consideration and refinement before the Social Media (Anti-Trolling) Bill 2021 is passed into law.
The Federal Government has recently released an exposure draft of the Social Media (Anti-Trolling) Bill 2021, which seeks to enable those who have been defamed identify anonymous posters who have defamed them, through use of a complaints process for victims of online abuse.
The Bill partly responds to the High Court's decision in Fairfax Media Publications Pty Ltd v Dylan Voller; Nationwide News Pty Limited v Dylan Voller; Australian News Channel Pty Ltd v Dylan Voller [2021] HCA 27 (Voller), which established that the administrator of a social media page is a publisher of any defamatory comments posted on that page by third parties.
Significantly (and contrary to the decision in Voller), section 3(a) of the proposed Bill stipulates that an Australian person who maintains or administers a social media page (for example the defendant media organisations in Voller) is not liable as a publisher for any comments posted on that page by a member of the public. However, the application of the High Court's decision in Voller to those who maintain and administer a social media page will continue to have a "legacy application" where the defamatory material was published before the Bill comes into force.
Another significant development is to offer a "carrot and a stick" to social media organisations who host content on their services.
First, the stick is to make social media organisations potentially liable as publishers for any defamatory comments made by third parties on their platforms. However, the carrot is to provide a new defence to those organisations when they, effectively, provide to a potential plaintiff, the identity and contact details of the commenter who has posted the defamatory material.
New defence for social media providers
Under the proposed legislation, a social media provider (eg. Facebook, Twitter, Instagram) would not be able to rely on the defence of innocent dissemination to argue it was unaware of the content of the defamatory material posted on its platform (another stick!).
Instead, section 15 of the Bill will allow social media providers to rely on a new defence if they (in general terms) offer and comply with a complaints scheme designed to assist victims of online defamation with avenues to seek redress from online abusers.
The complaints scheme prescribed under the proposed legislation empowers victims of online defamation with two legal avenues to reveal the identity of a social media user in instances where the defamatory comments were made anonymously, by:
- Providing a complaints mechanism offered by the social media organisations, through which users can report a defamatory post and request that the social media provider discloses the identity and contact details of the commenter; and
- Allowing users to apply for an "end-user information disclosure order" from a court in the event that the complaints mechanism process fails to reveal the identity of the commenter.
Both mechanisms allow the aggrieved individual with an avenue to obtain the commenter's name, email address and phone number to enable the individual to consider and prosecute a defamation claim.
The social media provider will, under the Bill, receive "immunity" from any civil suit against it by the commenter, by reason of revealing the identity and contact details of the commenter.
The Bill provides the Court with a residuary discretion to refuse to make a disclosure order, if the court is satisfied that disclosure of the relevant contact details is "likely to present a risk to the commenter's safety".
Somewhat curiously, the Bill also provides for the ability of the Attorney-General to intervene in applications before the Court, if it is in the public interest to do so. Although the rationale for this inclusion has not been explained, it perhaps reflects a concern by the Commonwealth Government of the possibility of a social media organisation defendant challenging the validity of the Bill (on Constitutional or other "over-reach" grounds, such as its extra-territorial application).
When will the new Anti-Trolling Bill come into force?
At this stage, the Federal Government has only released an exposure draft of the Bill. It plans to establish a House Select Committee to inquire into online harms and how this Bill addresses them. The formal consultation process is likewise yet to be created, although the Attorney-General's Department will accept direct feedback until 21 January 2022.
The Bill also must be considered within the broader context of defamation law reform nationally. The Council of Attorneys-General's Defamation Working Party is currently in Stage 2 of its review of the Model Defamation Provisions, which is focused on digital platforms, so this Bill would ultimately work in tandem with the reforms at the State and Territory level.
While the Bill is helpful in clarifying the limitation on liability for defamation of those Australian persons (including organisations) who maintain and administer a social media page, the remainder of the Bill comprises a unique approach to combatting online trolling by anonymous individuals. There are potentially significant consequences for the future landscape of defamation claims (which may become squarely focused on the individual commenter rather than "secondary" publishers), which is likely to require further consideration and refinement before the Bill is passed into law.
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