The Coalition’s anti-trolling bill has come under fire from the Business Council of Australia, which has claimed it may breach the US free trade agreement and joined those warning it may increase online abuse.
The BCA has urged that the bill not proceed, arguing in a submission to a Senate inquiry it would have “limited impact on safety outcomes” while resulting in “substantial changes” to defamation law.
The Morrison government released the proposed anti-trolling bill in early December, claiming it could help victims of trolling by incentivising social media companies to set up complaints-handling procedures that can reveal the identities of anonymous commenters.
The bill primarily helps operators of social media accounts by deeming they are not the publishers of comments by other users on their posts.
The Law Council and academics David Rolph and Michael Douglas have warned deeming those operating social media pages not liable for defamation and giving social media companies a defence may worsen online abuse and harm victims’ access to justice.
The BCA submitted to the Senate legal and constitutional affairs committee that the commonwealth lacks constitutional power to legislate on defamation.
The “carve-out” for page owners “poses substantial problems, including potentially increasing the volume of defamatory or otherwise problematic material posted, as page owners will have less incentive to moderate comments”, it said.
The BCA also raised the alarm about the provision requiring social media companies with more than 250,000 Australian users to have a “nominated entity” in Australia to comply with local obligations.
The BCA said this “appears in breach of the [Australia US free trade agreement]” which “explicitly states that neither party will ‘require a service supplier of the other party to establish or maintain a representative office … in its territory as a condition for the cross-border supply of a service”.
The eSafety commissioner said the bill may lead to confusion because it “seeks to address defamation but uses the terminology of trolling”.
It also warned of unintended consequences, including social media companies needing to retrospectively gather contact details for their users in order to benefit from the defence of having a compliant complaints procedure.
“This would be a complicated and arguably burdensome requirement for industry, with Facebook alone counting 17 million Australian monthly users.
“eSafety believes some users may be hesitant to provide these details to services due to lack of trust, and others may have difficulty complying.”
The eSafety commissioner argued this could have a disproportionate impact on low-income households, if social media companies made provision of those details a condition of providing the service.
The anti-bullying charity Alannah and Madeleine Foundation submitted that the uptake by children and young people of improved procedures to get court orders to identify trolls is likely to be low.
“This is not because children and young people do not experience false and damaging reputational claims online – in fact, that problem seems relatively common – but rather because resolving the problem through formal defamation proceedings is unlikely to be an accessible or appealing option for many young Australians.”
The small and family business ombudsman, Bruce Billson, submitted that “more should be done to ensure the proactive removal of unfounded and malicious reviews” of small businesses on platforms such as Google, UberEATS and Facebook.
