Peter A Clarke

The Prime Minister today foreshadowed legislation to unmask online trolls and amend the law of defamation in response to the High Court decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.  The necessary bills will be released in the next week.  A mid morning media release on a Sunday, usually a slow news day where editors fret on what will fill the front page the next day, guarantees big coverage on Monday.

Extracting the reforms from the media release the changes will involve:

• legislating a requirement that social media platforms to set up a complaints system so as to remove defamatory remarks;
• establishing a new Federal Court order to require social media giants to identify details of trolls to victims without consent.
• Australians and Australian media organisations will not be considered publishers. 
• social media platforms will be considered publishers though liability may be avoided if they provide information which permits victims to commence defamation proceedings against a troll.

The curious thing is that there is already a process for applying to the Federal Court for an order to a social media platform, search engine or internet service provider to identify an author who is using a pseudonym to defame someone.  I make these applications regularly enough as part of my defamation practice.  The principles are well established and the process is not overly onerous.  What new order is required will be interesting to see. There is also concern raised about social media platforms being required to collect personal information which would be provided if the mooted application is made.  That is not as dramatic as has been reported.  Google and Yahoo and other platforms require email addresses and sometimes phone numbers.  They can provide the isp number. It is relatively easy to identify the author from those details.  Similarly if the social media is put on notice about defamatory posts they may currently lose their protection from suit in the Broadcasting Services Act. 

If the Government were serious about dealing with on line trolls it would consider instituting a tort of harassment which exists in the United Kingdom. In the United Kingdom there is the Protection from Harassment Act 1997. Defamation may not be the best fit for some trolling behaviour.

The media release provides:

In a world-leading move, the Morrison Government will introduce new court powers to force global social media giants to unmask anonymous online trolls and better protect Australians online.

The reforms will be some of the strongest powers in the world when it comes to tackling damaging comments from anonymous online trolls and holding global social media giants to account.

The reforms will ensure social media companies are considered publishers and can be held liable for defamatory comments posted on their platforms. They can avoid this liability if they provide information that ensures a victim can identify and commence defamation proceedings against the troll.

Prime Minister Scott Morrison said the rules that exist in the real world should exist online too.

“Social media can too often be a cowards’ palace, where the anonymous can bully, harass and ruin lives without consequence,” the Prime Minister said.

“We would not accept these faceless attacks in a school, at home, in the office, or on the street. And we must not stand for it online, on our devices and in our homes.

“We cannot allow social media platforms to provide a shield for anonymous trolls to destroy reputations and lives. We cannot allow social media platforms to take no responsibility for the content on their platforms. They cannot enable it, disseminate it, and wash their hands of it. This has to stop.

“These will be some of the strongest powers to tackle online trolls in the world.

“Anonymous trolls are on notice, you will be named and held to account for what you say. Big tech companies are on notice, remove the shield of anonymity or be held to account for what you publish.

“In a free society with free speech, you can’t be a coward and attack people and expect not to be held accountable for it.”

The reforms will give victims of defamatory online comments two ways to unmask trolls and resolve disputes.

First, global social media platforms will be required to establish a quick, simple and standardised complaints system that ensures defamatory remarks can be removed and trolls identified with their consent. This recognises that Australians often just want harmful comments removed.

Second, a new Federal Court order will be established that requires social media giants to disclose identifying details of trolls to victims, without consent, which will then enable a defamation case to be lodged.

Importantly, the reforms will also ensure everyday Australians and Australian organisations with a social media page are not legally considered publishers and cannot be held liable for any defamatory comments posted on their page, providing them with certainty.

Attorney-General Michaelia Cash said this was in response to the Voller High Court case, which made clear that Australians who maintain social media pages can be ‘publishers’ of defamatory comments made by others on social media—even if the page owner does not know about the comments.

“Since the High Court’s decision in the Voller case, it is clear that ordinary Australians are at risk of being held legally responsible for defamatory material posted by anonymous online trolls,” the Attorney-General said.

“This is not fair and it is not right. Australians expect to be held accountable for their own actions, but shouldn’t be made to pay for the actions of others that they cannot control.

“The reforms will make clear that, in defamation law, Australians who operate or maintain a social media page are not ‘publishers’ of comments made by others.”

The Attorney General said the package of reforms would complement the defamation reforms currently being progressed in partnership with states and territories, and sit alongside the Government’s commitment to improving online safety.

“Social media providers should bear their fair share of responsibility for defamatory material published on their platforms,” the Attorney-General said. ‘This reflects the current law.’

“However, if defamatory comments are made in Australia, and social media providers help victims contact the individuals responsible, it is appropriate they have access to a defence.”

These new powers build on the Morrison Government’s other world-leading reforms, from establishing the eSafety Commissioner, to legislating the new Online Safety Act, to drafting new online privacy laws and securing support for global action to be discussed at the G20 in Indonesia in 2022.

An exposure draft of the legislation will be released in the coming week. This will provide all Australians, the industry, states, territories and stakeholders to have their say on these important new laws.

The Attorney General has an identical press release.

Not surprisingly, given media organisations are beneficiaries of these proposals they have been fulsome in reporting on the proposed (as yet unidentified) changes. 

The Australian’s Morrison government announces new legislation to tackle trolling provides:

The measures augment existing mechanisms announced by the Morrison government aimed at regulating the social media giants. Liability for online comments made by third parties will shift from media outlets and small businesses to social media services, deeming them to be the “publisher”.

Moreover, the legislation will force Big Tech to implement a complaint process for people who believe they have been defamed. If the companies do not comply, a mechanism will be introduced enabling the Federal Court to compel social media companies to “unmask” accounts.

In a press conference, the Prime Minister said there should be consistency between laws in the real and online worlds, saying Facebook and Twitter needed to take responsibility for the environments they had created.

“The online world should not be a wild west where bots and bigots and trolls and others are anonymously going around and can harm people and hurt people, harass them and bully them and sledge them. That is not Australia,” Mr Morrison told reporters on Sunday morning.

“That is not what can happen in the real world, and there is no case for it to be able to be happening in the digital world.”

“Free speech is not being allowed to cowardly hide in your basement and sledge … and harass people anonymously and seek to destroy their live. That is cowardice — and there is no place for that in this country.”

The significant new measures will clear up confusion about who is liable for comments made by people who comment on news stories on social media. A High Court ruling made during the Dylan Voller case had specified the “publisher” was held responsible for any defamatory comments, creating a legal minefield for news outlets.

However, the Morrison government’s legislation would ensure social media companies were held accountable for harmful comments made on their platform, Attorney-General Michaelia Cash said.

“In that the legislation, deem that the social media page user – in other words, the small business in Canberra, the journalists represented here today, Mom and dad‘s around Australia – you will be deemed not to be the publisher,” she said.

“We need to ensure that Australians have certainty in relation to who is the publisher, bought these third-party comments. Social media services, they need to step up and they need to understand that they have a responsibility in this regard.”

Moreover, the legislation would require social media companies to implement a complaints procedure, compelling them to provide users with the details — such as email address or phone number — of online trolls who had spread defamatory comments.

If social media companies were able to do this, the Morrison government would provide them with a defence from being the publisher. If not, a mechanism would be provided to social media users, providing them with a pathway to take action in the Federal Court.

“This is all about ensuring that what happens in the physical world, we know what the consequences for actions are, are also ensuring they are happening in the online world,” Senator Cash said.

The Guardian’s coverage is similar but less enthusiastic with Australian government’s ‘anti-troll’ legislation would allow social media users to sue bullies.  It provides:

On Sunday Morrison said he wanted to ensure consistency between real-world rules and those online.

“The rules that exist in the real world must exist in the digital and online world,” he said.

“The online world shouldn’t be a wild west, where bots and bigots and trolls and others can anonymously go around and harm people and hurt people.”

But cyberhate expert and author of the book Troll Hunting, Ginger Gorman, said the legislation will not do enough to combat online abuse.

“Overall I’d say this is far too little too late – so much real harm has already been done. And this doesn’t go far enough,” Gorman said.

“The government must legislate a duty of care so the public has to be kept safe by the platform,” she said.

“They are continually publishing egregious content and have no accountability for this.”

She said Germany, where companies platforms can be fined up to €50m if they do not delete posts containing racist, defamatory or otherwise illegal speech within 24 hours, showed governments could take serious action.

“Media companies have shown over many decades that they will not fix this on their own.

“So governments need to legislate to break them up, cut up their power and enforce a public duty of care.”

Under the legislation, social media companies would have to set up a complaints process, where people can ask for the content to be taken down if they feel it is defamatory towards them.

If the post is not taken down, the user can ask for the personal details of the person who posted the content.

If they do not agree to release them, a court order can be made, forcing the company to release them – and opening up an avenue for the complacent to sue for defamation.

Morrison said the government would support the initial cases, to help set a precedent.

“We will be looking for test cases that can reinforce these laws,” he said.

“So if the digital companies or others think they’re only just going to have to be dealing with perhaps someone of little means seeking to pursue this, then we will look for those cases.

“We will back them in the courts and we will take them on.”

At the centre of the legislation is the ability for individuals to pursue a case against the poster of the content, if they feel they have been defamed.

University of Melbourne’s Dr Lauren Rosewarne said defamation is easier to determine than trolling and hate.

“Defining some of these terms: things like “online hate” and “trolling” are subjective,” she said.

“For example, are repeatedly expressed, strongly worded opinions that differ from yours trolling? Some people would say yes, others would say no.”

One of the key issues of the proposed legislation is the collection of personal data and the complexities that come with that, she said.

“Who is going to pay for the verification? If the data isn’t actually verified then I imagine the most problematic social media users will simply enter fraudulent details without many deterrents.”

Currently, social media companies have only offered “lacklustre responses” to allegations of trolling, she said.

“With many complaints noting that invariably they just get an automated response from the social media company and nothing is done. Users want a more proactive approach but such an approach is resource-intensive.”

In September, the high court ruled Australian media companies could be liable for defamatory comments posted on Facebook pages after Fairfax and Newscorp lost their appeal to escape defamation charges after third-party comments were made on their social media posts about Dylan Voller.

The Australian Law Council was quick to support the proposed shift in responsibility.

Law Council of Australia President, Dr Jacoba Brasch QC said care needs to be taken to ensure an appropriate balance between freedom of expression and the protection of personal reputation.

“In the Law Council’s view, a legislative framework that shifts responsibility towards originators will assist in achieving this balance,” Brasch said.

“However, it is important too, to recognise that intermediaries are responsible for their participation in the online environment and often profit from the network effects of their pages or platforms.”

The ABC has a fairly straight up and down the wicket story in Social media companies could be forced to give out names and contact details, under new anti-troll laws: providing:

Social media companies could be forced to reveal the identities of anonymous users in an effort to crack down on online trolling, under new laws being drafted by the federal government.

The laws would require social media companies to collect the details of all users, and allow courts to force companies to hand over the identities of users to aid defamation cases.

Social media companies would also be made legally liable for the content they publish from users, removing liability from individuals and companies that manage pages.

The legislation will be released in draft form this week, and is expected to be introduced to parliament early next year.

Prime Minister Scott Morrison said he wanted to close the gap between real life and discourse online.

“The rules that exist in the real world must exist in the digital and online world,” he said.

Under the proposal, social media companies will be required to create a complaints process for people who feel they have been defamed online.

The complaints process will allow people to ask that material be taken down by a user if they feel it is defamatory.

If the user is unwilling to take down the content, or the complainant wants to take further action, the company asks a user for their consent to release their personal details.

If the user does not consent to their details being released, a court order can be made requiring the company to release them — allowing the complainant to pursue defamation action.

Mr Morrison said the government would be happy to intervene in court and take on social media companies trying to avoid releasing personal details.

“So if the digital companies or others think they’re only just going to have to be dealing with perhaps someone of little means seeking to pursue this, then we will look for those cases.

“We will back them in the courts and we will take them on.”

Mr Morrison said the establishment of a public defender’s office tasked with taking on such cases was under consideration.

Putting a name and face to a troll online

It is not completely clear yet what sort of data social media companies might be required to collect from users, in order to comply with the new laws.

But the indications are it would likely include a user’s name, email address and contact phone numbers

And the rules would not only apply to new users joining a service, but to existing users too.

The actual mechanism for collecting all that data would be up to the social media companies to figure out.

Companies would not be required to actively monitor posts online and pull down those that are potentially defamatory. They would only have to respond to complaints that are made.

They would only give out a person’s details without their consent at the direction of the Federal Court of Australia, once the court is satisfied that step is necessary.

Asked if he had consulted social media companies on the proposals, Mr Morrison said he had spoken with them regularly — but was happy to proceed without their approval.

“And I will keep taking it further, until they continue to do the responsible thing.”

Unwinding who is responsible for what online

A key part of the new rules is clearing up who takes responsibility for content published online.

A recent High Court case found that the person managing a public page on social media was responsible for comments made by others on that page, rather than the social media company that runs the platform.

It meant, for example, that if a media outlet posted a news story on Facebook, it holds legal responsibility for any potentially defamatory comments made by others on that post.

These new laws will push that legal responsibility onto the social media company.

But the laws will also allow the companies to use the complaints system as a defence to defamation action. So effectively, those companies with a functioning complaints system will be shielded from potential defamation cases.

Attorney-General Michaelia Cash said social media companies should carry responsibility for material published on their platform.

“Social media services need to step up, and they need to understand that they have a responsibility in this regard,” she said.

“And that is why this important step providing clarity to all Australians, but in particular, to social media companies — you will be deemed the publisher.”

Labor questions international reach of laws

Federal Opposition Leader Anthony Albanese said Labor would wait to see the detail of the new laws before giving a firm position either way on them.

But Mr Albanese said it was not unreasonable to suggest social media companies know the identity of their users.

“It shouldn’t be beyond the capacity of social media to be able to identify people who are engaged in inappropriate activity online,” he said.

“Just like if someone [in a public space] says something that’s defamatory or inappropriate or hurtful, they’re doing it face to face, you can identify them.

“People shouldn’t be able to hide behind anonymous Twitter accounts online and engage in inappropriate activity.”

But he is questioning how easily the laws might be avoided — as trolls simply close their Australian account, and use a foreign IP-address to re-open it.

Doing so would potentially avoid the scope of the laws, if they are only applied to accounts registered in Australia.

“Because the government needs to explain how it can deal with the fact that domestic controls have limitations for what is a global industry.”

Both Twitter and Facebook are yet to comment on the proposals.