The Law Council and defamation experts have panned the Coalition’s anti-trolling bill, warning it will deprive defamation victims of redress and does little to solve the problem of online trolling.
The Law Council and academics David Rolph and Michael Douglas have warned giving companies operating social media pages a defence may worsen online abuse and harm victims’ access to justice, while new complaints procedures still allow anonymous commenters to block release of their details.
The submissions were made to the attorney-general’s department, which is conducting consultation on the draft bill yet to be introduced to parliament.
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.
Instead, the social media companies will be held liable as publishers, although they can access a defence if they have an appropriate complaints procedure.
The Law Council submitted that the reform should wait until after a separate review by state and federal attorneys-general into liability for digital defamation, which was launched after the high court found media companies could be liable for third-party comments on their social media posts.
Rolph also warned the reform could be “premature” as the court in Dylan Voller’s case is yet to decide on the defence of innocent dissemination, and media companies could seek to recover any damages ordered against them from Facebook or the commenters.
The Law Council submitted that “defamatory material comprises only a small component of ‘trolling’ activity online”, while Rolph agreed the bill’s title was a “misnomer” because it is “not really concerned with ‘trolling’”.
The Law Council warned a “blanket protection” for companies running social media pages “does not adequately balance competing public interests, may leave victims without recourse and … provide unwarranted complete protection from liability”.
Rolph warned this “is likely to increase, rather than decrease, poor online behaviour”.
That is because page owners will not be liable “even if they have actual notice of the defamatory third party comment and have the power to remove the comment” – thus alleviating them of a need to moderate comments.
Rolph suggested that social media page operators should still be liable if they are given notice of a defamatory comment.
Douglas submitted that the bill will benefit commercial media companies and internet giants but does “very little for the vast majority of ordinary working Australians”.
“It will do nothing to better protect children online.”
Douglas warned the bill “would remove the ability of those who suffer reputational harm online to obtain meaningful remedies”.
“If the government wants to reduce online harms inflicted on Australians, then it should incentivise those with the power to moderate social media comments to do a better job.”
Douglas submitted “legislation could mandate that providers have a complaints scheme” rather than creating an incentive to set one up.
Creating a defence for social media companies is “undesirable” because “it removes one of the more effective avenues for Australians to protect themselves from harm caused by social media”, he said.
Rolph noted that under the proposed complaints procedures, anonymous users can block the release of their identifying information, and they are “unlikely” to regularly agree to be unmasked.
A group of top defamation barristers and solicitors led by Sue Chrysanthou submitted that “no change” was required to the law to respond to the Voller case.
The decision “has no impact on the law” of publication or the defence of innocent dissemination which is still available, the submission said.
The submission by prominent plaintiff practitioners was co-signed by solicitors Patrick George and Rebekah Giles, and barristers Richard Potter, Kieran Smark and Nicholas Olson.
The defamation practitioners warned against giving media companies immunity for social media posts “no matter how defamatory, and even once they had been put on notice of the defamatory character of the comments”.
Given that “non-defamatory trolling may still be deeply hurtful”, the practitioners suggested giving federal courts the power to issue injunctions to prevent publication of cyber-abuse material, to supplement eSafety commissioner powers to force such material to be taken down.
