The Social Media (Anti-Trolling) Bill 2022 (the Bill) intends to create a novel framework to empower Australians to institute defamation proceedings where defamatory material has been posted anonymously on a social media platform in Australia. Despite its title the Bill is heavily focused on defamation rather than trolling.
The Bill seeks to address the issues raised by the High Court’s decision in Fairfax Media Publications v Voller [2021] HCA 27 (Voller) in which the majority determined that individuals and organisations with social media pages on which third party material can be posted may be ‘publishers’ of that material for the purposes of defamation law. Consequently, a page owner could be liable even when they were unaware of the comments made on their social media page.
Key features
The Bill is intended to:
- Absolve persons who administer or maintain a social media page from liability for defamation claims arising from third party comments;
- Clarify that social media platforms will be liable for third party comments, subject to a new conditional defence;
- Establish a voluntary complaints scheme to be implemented by social media platforms; and
- Provide for a new type of court order requiring social media platforms to disclose specific contact details in connection with defamation proceedings.
The social media page owner
The Bill provides that owners and administrators of social media pages will not be ‘publishers’ of material posted on their page by third parties, for the purposes of defamation law. This key change overrides part of the decision in Voller. The amendment provides clarity and certainty regarding who is liable for the publication of comments on social media and is intended to “facilitate community engagement and debate and promote freedom of expression”.
The social media platform
Where material is posted on a social media page in Australia, the social media platform will be a publisher of the material posted on their service for the purposes of defamation law.
A social media platform will be captured by the Bill if or where it satisfies the following (excluding Broadcasters):
- the sole or primary purpose of the service is to enable online social interaction between two or more users;
- the service allows users to link to, or interact with, some or all of the other users; and
- the service allows users to post material.
The definition will capture the likes of Facebook, Twitter and YouTube.
Social media platforms will also be required to have a nominated entity incorporated in Australia that is an agent of the platform and has an office in Australia. There is a penalty of $111,000 for non-compliance and provision to penalise continuing contraventions.
Assistance mechanisms
Where defamatory material is posted online from an anonymous account, it can be difficult for aggrieved individuals to vindicate their reputation. The Bill seeks to address this by introducing two new mechanisms to assist individuals in determining whether a defamatory post was made in Australia, and, if so, to obtain the relevant contact details of the poster.
The complaints scheme
The complaints scheme provided for in the Bill (the Scheme) allows a complainant to request relevant contact details of the poster of defamatory material and authorises the social media platform to disclose those details with the poster’s consent. A person’s ‘relevant contact details’ has been narrowly defined to include a person’s name, email address and telephone number. These details are intended to be such as is necessary to effect substituted service, if authorised by a court.
While the Bill does not mandate a social media platform to have a complaints scheme, they will need to implement the proposed scheme if they wish to rely on the new conditional defence (discussed below).
The Scheme would allow a person who believes they have been defamed by a comment posted on social media to make a complaint to the social media platform about the relevant material. The social media platform would then need to provide, within 72 hours:
- the ‘country location data’ to the complainant; and
- where the comment was made in Australia, and the complainant requests the poster’s contact details, the social media platform must provide the contact details but only with the poster’s consent.
End-user information disclosure orders (EIDO)
The Bill establishes a framework for EIDOs which are a new form of court order that can be obtained from an Australian court that has jurisdiction to hear the defamation proceeding or the Federal Circuit and Family Court of Australia. There is no requirement that a prospective applicant must first go through the social media platform’s complaints scheme before they are entitled to apply for an order.
The EIDOs will also allow an applicant to obtain country location data in relation to material posted on a social media platform, and if the material is posted in Australia, obtain the poster’s contact details.
In determining whether to make an EIDO, a court must be satisfied that there are reasonable grounds for the applicant to believe that there may be a right to relief in defamation proceedings. The court must also be satisfied that the applicant is unable to ascertain either the poster’s relevant contact details or whether the material was posted in Australia, or both. The Bill makes clear that if there is information before the court to suggest that the poster’s safety might be at risk, the court may refuse to grant the order.
The new defence
The Bill provides social media platforms with a conditional defence in defamation proceedings in which they are a defendant.
In order to have the benefit of the defence, social media platforms must have:
- a complaints scheme that meets the requirements set out in the legislation,
- where the complainant has sought to use the scheme, complied with that scheme,
- an incorporated entity which is based in Australia; and either:
- disclosed the geographical data or contact details of the poster; or
- have not had to do so where the complainant has not made a request (either through the complaints scheme or by way of an EIDO).
Attorney-General intervention
The Bill also allows the Attorney-General to intervene in matters arising under the Bill or in defamation proceedings to which a social media platform is a party. The Attorney-General will also be able to authorise an applicant’s costs to be paid.
Defamation cases can be complex, and can sometimes involve significant power imbalances between a large publisher and an individual whose reputation has been harmed. The Government has sought to address this in part, by allowing the Attorney-General to address this power imbalance where it is in the public interest to do so.
Next steps
The proposed legislation will empower Australians to take action against anonymous posters of defamatory material. In February 2022, the Senate referred the Bill to the Legal and Constitutional Affairs Legislative Committee for inquiry and report.
Our defamation team is able to assist in advising clients on how to navigate defamation claims and the impact of these new proposals.
This article was written by Melissa Hanbidge, Partner, Rachel Lake, Senior Associate and Emily Woolcott, Associate.
