The Australian Government recently released an exposure draft of so called "anti-trolling" legislation, which has the dual purpose of protecting owners of social media pages and unmasking online trolls.
Background to the proposed legislation and the Voller decision
The Australian Government released an exposure draft of the Social Media (Anti-Trolling) Bill 2021 (Anti-Trolling Bill) in the final days of the 2021 Parliamentary sitting year. The Government announced that this proposed legislation has a dual purpose:
- to address the implications of the High Court decision in Fairfax Media Publications v Voller  HCA 27 (Voller case); and
- to protect Australians from online harms, by limiting the potential for online comments to be posted anonymously.
The Voller case involved a defamation claim by Dylan Voller against a number of media companies in relation to comments posted by third parties on their Facebook pages responding to articles relating to Mr Voller which were available on those pages. The High Court, in upholding the decision of the New South Wales Court of Appeal, affirmed that the media companies were publishers of the third party comments, even though they may not have been aware that the comments had been posted on their pages. This is consistent with a long line of authority that any participation in the communication of a defamatory matter is sufficient to make a person a publisher for the purposes of defamation law and, therefore, potentially liable for defamation. You may read our analysis of the High Court decision here.
The Australian Government has stated it does not consider that it is appropriate for owners of social media pages to be liable for defamatory comments posted by others. The Government's concern is not limited to media companies, as it is also concerned about other individuals and businesses who have social media pages, given the Voller case confirms there is a significant burden on all page owners to monitor the comments of third parties. The Government concluded that the Voller case may result in social media accounts being closed or the ability to post comments on such pages being turned off – in the latter case, this could have a chilling effect on free speech.
The Government expressed equal concern that Australians may suffer harm from online defamatory comments. Not only may defamatory comments be made anonymously online but, in the age of the internet, these comments may be amplified and spread much further than would have been the case in a less digitally connected world. The Anti-Trolling Bill is therefore also intended to significantly limit the ability of individuals to post comments anonymously and to enhance the ability of any person who is defamed by such comments to commence legal proceedings to hold the commenter accountable.
Scope of the Anti-Trolling Bill
The overall scheme of the Anti-Trolling Bill:
- absolves persons who administer or maintain a social media page from liability for defamation claims arising from third party comments;
- makes clear that providers of social media services, that is, social media platforms, will be liable for third party comments (without the ability to rely on an innocent dissemination defence), subject to a new conditional defence;
- establishes a voluntary complaints scheme that may be implemented by social media platforms; and
- provides a new right to apply to the courts for an end-user information disclosure order, requiring a social media platform to provide specified contact details in connection with defamation proceedings.
Important definitions: Social media service, page and comment made in Australia
To understand the operation of the Act, it is first necessary to consider a number of key definitions.
A social media service is defined in section 6 of the Anti-Trolling Bill by reference to the new Online Safety Act 2021 (Cth), which will take effect in early 2022. A social media service is an electronic service (excluding a broadcasting service) which satisfies the following:
- the sole or primary purpose of the service is to enable online social interaction (which does not include interaction for business purposes), disregarding any purpose to generate revenue through advertising;
- the service allows end-users to link to, or interact with, some or all of the other end-users; and
- the service allows end-users to post material.
Other conditions may be set out in legislative rules and other services may also be expressly designated in legislative rules. The definition will capture social media platforms such as Facebook, Twitter and YouTube.
A page of a social media service is defined in section 6 of the Anti-Trolling Bill to mean a page, however described, of the relevant social media service or any other distinct part of the service.
Generally (though not in relation to determining the liability of a person who maintains or administers a social media page), for the provisions of the Bill to apply, the relevant potentially defamatory comment must be made in Australia. In accordance with section 9 of the Anti-Trolling Bill, this requires that the relevant comment must appear to be posted by an end-user who, according to the geolocation technology of the social media platform, is located in Australia.
Liability for potentially defamatory comments
Section 14(1) of the Anti-Trolling Bill provides that a person who maintains or administers a social media page (page owner) will not be a publisher of comments posted on that page for the purposes of defamation law if:
- the page owner is an Australian person, which includes a body corporate incorporated in Australia; and
- the comments are posted by an end user, other than the page owner.
As the page owner will not be a publisher of the comments, the page owner will not be liable in defamation for such comments. No other conditions must be satisfied for this exclusion of liability to apply. Importantly, this exclusion will apply irrespective of whether the comments are made in Australia.
Sections 14(1) and 14(2) provide that, where comments posted on a social media page are made in Australia, the social media platform will be taken to be a publisher of those comments for the purposes of defamation law. This is described by the Australian Government as a "clarification" only, noting it is already likely to be the case that social media platforms would be liable as publishers for such comments. In addition, section 14(3) of the Anti-Trolling Bill provides that a social media platform will not be able to rely on an innocent dissemination defence in any defamation proceedings where the platform is a publisher of the relevant comments – whether this liability arises because of the operation of section 14(1) or 14(2) or otherwise. Innocent dissemination is a defence which is generally available where the defendant is a subordinate distributor of the relevant content and neither actually knew nor ought to have known of its defamatory nature.
The complaints scheme
Social media platforms are not obliged to provide a complaints scheme of the type specified in the Anti-Trolling Bill. However, if a platform does not implement such a scheme, it will not be able to access the new conditional defence, which is described later in this article.
The complaints scheme allows a person who believes she may have been defamed by a comment posted on a social media page to make a complaint to the relevant social media platform. There is no requirement for a complainant to use the complaints scheme, if it is in fact made available by the relevant platform. Instead the complainant may simply commence legal proceedings.
If a complaint is made, and the comment was made in Australia, the proposed complaints scheme would require that:
- the social media platform must inform the commenter about the complaint, and notify the complainant that the commenter has been informed, in each case, within 72 hours of the complaint being made (sections 16(b) and (c));
- the platform may, with the commenter's consent, take the comment down, but is not obliged to do so (section 16(e));
- the platform must notify the complainant of the outcome of the handling of the complaint, within 72 hours of that outcome (section 16(f)). There is deliberate flexibility regarding outcomes. The Detailed Explanatory Notes for the Anti-Trolling Bill state that the outcome is whatever response is provided by the commenter; and
- if not satisfied with the handling of her complaint, the complainant may request the social media platform disclose contact details of the commenter to assist the complainant to commence defamation proceedings. If the commenter consents, the social media platform may, but is not obliged to, provide these details to the complainant (section 16(g)).
In addition, the complaints scheme provides that the social media platform must provide the complainant with "country location data" of the commenter within 72 hours of the complaint being made (section 16(d)). Country location data is notification of whether or not the commenter appears to have been in Australia when the comment was posted.
A social media platform is not required to comply with the complaints regime unless it reasonably believes that the complaint (or if applicable the request for relevant contact details) does not genuinely relate to the potential commencement of defamation proceedings (section 16(1)(h)).
This complaints scheme is not a "take down" scheme. That is, there is no absolute obligation on a platform to remove comments where a complaint has been made. This is unsurprising as, simply because a complaint is made, this does not mean that a comment is in fact defamatory. The Anti-Trolling Bill appears to be seeking to balance the rights of persons to take action in relation to potentially defamatory content against rights of free speech.
New defence for social media platforms
Section 15 of the Bill provides a new conditional defence to a defamation claim for social media platforms in respect of comments on social media pages. This is intended to incentivise social media platforms to implement the proposed complaints scheme. The defence is available where all of the following are satisfied:
- the comment was made in Australia;
- the platform has implemented a complaints scheme that meets the requirements of section 16 of the Anti-Trolling Bill and, if the complainant seeks to use the scheme, the social media platform complies with it; and
- if either the applicant requested the commenter's relevant contact details under the complaints scheme or a court makes an end-user information disclosure order, the platform has provided the commenter's relevant contact details (being name, email address and phone number as well as any other details prescribed in the legislative rules).
This defence is available irrespective of whether the social media platform is found to be liable as a publisher as a result of the operation of the proposed section 14(1) or 14(2) or otherwise.
End-user information disclosure orders
As noted above, a person who considers that she has been defamed by a comment on a social media page does not need to use the proposed new complaints scheme and will not be penalised under the Anti-Trolling Bill if she seeks to instead directly pursue defamation proceedings.
Unsurprisingly, defamation proceedings may only be commenced against a person where the identity of that person is known. Therefore another important component of the Anti-Trolling Bill is Part 3, which allows an application to be made to a court to obtain an order requiring the relevant social media platform to disclose a commenter's country location data and, if those details indicate that the comment in question was made in Australia, relevant contact details. Such an order may only be obtained if an Australian court would have jurisdiction to hear the defamation claim and there are reasonably grounds to expect that such a claim would be successful.
Progress of the Anti-Trolling Bill
The Government has established a Select Committee on Social Media and Online Safety to inquire into a range of matters relating to online harms. This will include consideration of the Anti-Trolling Bill. Submissions are due to that Committee by 21 January 2022 and the Select Committee is due to publish its final report by 15 February 2022.
Given the likely timing of the next Federal election, it is highly unlikely that the Anti-Trolling Bill will either be introduced to Parliament or become law before that election. The period of time before the Bill is introduced to Parliament should provide, notwithstanding the short time period for the Select Committee to report, sufficient time for an open debate on whether the Anti-Trolling Bill is appropriately designed and fit for purpose. This debate should include a comparison of the proposed scheme to international precedents such as the UK's online defamation notice and takedown rules and should assist in ensuring that Australia's proposed regime fits with the Stage 2 process for Australia's Model Defamation Provisions, which is currently underway.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.