The Australian Government is introducing legislation to unmask anonymous online bullies, trolls and defamers. The Australian Government has released the Social Media (Anti-Trolling) Bill 2021 to address developments in the 2021 High Court decision in Fairfax Media Publications v Voller.
Background
In September 2021, the High Court in Fairfax Media Publications v Voller found that the owners of public Facebook pages were the ‘publishers’ of defamatory comments made by third parties on those pages.
This is regardless of whether the page owners were aware of the comments made.
Following the decision, social media page owners can be held liable for defamation, even though they did not intend to publish defamatory comments and did not know that defamatory comments had been posted.
Proposed Bill
The proposed laws change the position created by Voller – that social media page owners are publishers of third-party comments.
Key changes proposed in the Bill include:
- exempting those who administer or maintain social media pages from liability for defamation that arises from third party comments on their pages,
- establishing that social media services are liable for third party comments subject to a defence which is available if a complaints scheme has been established by the service, and
- establishing the requirements of the complaints scheme.
The complaints scheme will allow a person who is defamed on a social media page to have the option to complain to the social media service. As defamation proceedings can only be commenced against a known party, the Bill allows an application to be made to a court to require the social media platform to disclose the country location of the person who posted the comment, and if the comment was made in Australia, that person’s contact details.
This exchange of information will allow defamation cases to be launched by complainants against social media ‘trolls’. However, the usual elements for defamation proceedings do not change and still need to be satisfied.
Does this address the issue of online trolls?
This is a significant development in online regulation. While the Bill provides some clarity around who is responsible for defamatory comments on social media, it delivers mixed results.
On the one hand, the introduction of a complaints resolution process is a good thing. It provides a mechanism for a complainant to ask for support to resolve an issue with social media content.
The decision in the Voller case created a significant legal risk for businesses running social media pages which allow user generated content and comments. The Bill gives organisations relief from this by pushing the legal responsibility onto the social media service.
On the other hand, the Bill may not offer much protection to ordinary social media users. The proposed complaints process does not ensure that a comment will be removed from a social media service.
If you are anonymously defamed or trolled, you will need to get a court order to find out the identity of the offending person before you even start proceedings for defamation. This is likely to be a costly, involved and potentially prohibitive process for the average social media user. It may be more available to high profile applicants who are well funded.
2021 has been a busy year for regulatory reform of Australia’s online environment as the government seeks to create a framework fit for the online landscape.
Social media services and the users and advertisers of social platforms will have to stay on top of these regulatory developments as the new laws unfold.
The Bill is open for public consultation until 21 January 2022. Please contact Sainty Law if you would like assistance to understand what these changes mean for your business.
