Controversial anti-trolling legislation is drawing closer with the Federal Government this week releasing a draft of the ‘Social Media (Anti-Trolling) Bill 2021’. The Government had foreshadowed the legislation, which aims to ‘force global social media giants to unmask anonymous online trolls’. Since then, social media companies, users and commentators alike had been waiting with bated breath. The draft legislation is open for comment and has not yet been introduced to Parliament. While it has been spruiked by some as changing the game in relation to online defamation via social media, the practical effect of the new regime may fail to move the dial for victims of digital defamation.

The key issue: how to hold anonymous posters to account for online defamation

The ease with which an individual can create an anonymous online presence gives rise to significant obstacles when it comes to defamatory statements made using that presence – particularly on social media. The ability of one person to make anonymous statements about another is, to some degree, a significant attraction for people to use social media in the first place.

The apparent freedom to say whatever you wish about someone, whether true or not, to an audience of that person’s peers draws out a malicious intent which would rarely be applied in a face-to-face environment due to universal social norms. A constant struggle of defamation law, which has developed from an age of horse-drawn carts, is how to identify and hold a person to account for statements made by them online wearing a digital mask of anonymity.

We have seen countless times in our practice that knowing what was said when and to whom is the more straightforward part of any defamation action. A more difficult element is knowing who to sue, and although applications to a court for preliminary discovery are a potential (albeit costly) solution, the system breaks down at the Australian border or where the only details you can obtain are an email address which may or may not be actively monitored.

In the recent decision of the High Court in Voller,[1] potential inroads were made by the Court in its finding that parties who create or administer online forums are ‘publishers’ for the purposes of defamation. It remains to be determined by the Courts of New South Wales in that case whether those same parties have any defences available to them, including most notably the defence of innocent dissemination.

The Federal Government’s proposed solution

It is worth noting that with this proposed bill, the Federal Government is wading into the area of defamation law for the first time. Defamation law in Australia is comprised of the common law tort of defamation, as amended by (mostly) uniform legislation enacted in each State and Territory. The emergence of the Federal Government as a legislative force in this space is a potentially welcome development, given the recent history of delayed enactment of harmonised legislation at the State and Territory level.

The key features of the proposed bill:

The principles in Voller are overturned

Parties who create or administer online forums are not liable as publishers and instead the provider of the ‘social media service’ on which a comment is made in Australia is taken to be a publisher. The defence of innocent dissemination is not available to a ‘social media service’ in this context.

Social media companies are required to have a ‘bricks and mortar’ presence in Australia

Social media companies incorporated outside of Australia with more than 250,000 Australian account holders are required to nominate an Australian company with an Australian office to respond to defamation complaints under the proposed law. They are liable to pay a penalty of $110,000 for every day that they do not comply with this requirement.

A new complaints process and civil action for disclosure

There is a codified complaint process for a person to obtain the country location data and potentially, the ‘relevant contact details’ of a person who has made a defamatory post to a social media service in Australia. This can be requested from the local entity nominated by the social media service, or pursuant to an order of a Court in what is essentially a short form preliminary discovery process.

A new defence to defamation for social media companies

Social media companies will have a defence to any defamation claims brought against them in relation to a defamatory post made on their forum where they have complied with the prescribed complaint process.

Will the new legislative approach work?

From a commercial perspective, the effect of the proposed bill is to increase the cost of social media companies doing business in Australia. Given Australia presently has a total population of 25.7 million and there are 2.895 billion users on Facebook, 2.291 billion users on YouTube, 1.393 billion users on Instagram and more than 400 million users on Twitter, there are genuine commercial considerations for platforms as to whether the cost of compliance would be justified. This may have ramifications for the thousands of sporting and community groups, small and large businesses and educational institutions who use them to reach their audience.

On the assumption that social media companies are prepared to continue to operate in Australia under the new regime, the following considerations arise in relation to its implementation:

You can’t sue an email address or a false name

The proposed bill provides for the disclosure of ‘relevant contact details’ which are defined as the name, email address and phone number of a person. Accurate information of this kind is not presently held by social media companies and if someone is purporting to use their profile to defame someone, they are unlikely to provide accurate information at the time of signing up. This presents significant issues for the efficacy of the regime and its application to existing users of social media companies.

When is a defamatory post really made in Australia?

The practical effect of the proposed bill remains limited to Australia. If you are defamed by someone in one of the other 194 countries in the world, your ability to seek relief in an Australian court remains limited. The proposed concept of when a social media comment is made in Australia is defined by reference to whether the person ‘appears to have been located in Australia’ at the time. The use of virtual private networks (VPNs) to change where a person ‘appears’ to be from, while online, may further erode the effect of the proposed bill.

Preliminary discovery by another name

The process for obtaining an ‘end user disclosure order’ is in effect the same as an application for a preliminary discovery order, which carries with it a potentially significant amount of legal costs (at the very least, court fees). Such costs will need to be incurred before the complainant can issue a concerns notice, leading to an expensive and lengthy process to even reach the start line of a defamation claim.

Inability to process tirades of defamatory content

The prescribed process will not assist a person who is subjected to a protracted tirade of abuse, potentially by the same individual using multiple anonymous profiles. Each comment to social media in this scenario would seemingly require a separate request to the social media service – and potentially a separate application to a court for disclosure of the ‘relevant contact details’.

Powers already exist in relation to online bullying and harassment

There is existing legislation in the form of the Online Safety Act 2021 (Cth), which comes into force on 23 January 2022. This provides the e-Safety Commissioner with power to issue an ‘end-user notice’ requiring the production of information concerning the identity of individuals who operate anonymous social media accounts to engage in online abuse.

Capacity for abuse and access to personal information

There is potential for the system to be misused where there is no legitimate claim for defamation, particularly in relation to accessing an individual’s personal information and contact details. The proposed bill provides a right of refusal to a social media company where they ‘reasonably believe’ a request for end user data ‘genuinely relates’ to a potential defamation claim. However, this places the entity in a potentially difficult situation given the social media service needs to comply with the complaint process in order to itself qualify for the new defence.

This regime is only the beginning of the process for holding a person to account

The usual elements for the commencement of defamation proceedings still need to be satisfied, such that even after having completed the complaint process under the proposed law, a person will be no closer to obtaining relief for the underlying defamatory material.