Introduction
The Social Media (Anti-Trolling) Bill 2022 (the bill) purports to address issues said to be raised by the High Court’s decision in Fairfax Media Publications v Voller [2021] HCA 27 (‘Voller’), in which the court found that individuals and organisations (including media companies and community groups) operating social media pages on which third party material can be posted may be held liable as ‘publishers’ of that material for the purposes of defamation law.
Labor members of this committee agree that there is a need to address the implications of Voller for the owners of social media pages in Australia. Labor members also agree that the problem of on-line trolling is a very serious one that requires a range of responses, including further legislative intervention. In general terms, Labor members of this committee concur with the statement in this Committee’s main report that 'both social media providers and the current regulatory framework have failed to respond effectively to increasing volumes of defamatory material on social media platforms.'
However, Labor members are concerned at the very large volume of evidence presented to this Committee that this bill does not, as presently drafted, adequately address the issues raised by Voller. We are presenting this minority report because we are concerned that as presently drafted, this bill would not provide the vast majority of Australians with any practical means to redress harm caused by the scourge of online trolling, and may in fact make the problem of online trolling significantly worse.
Although the Government has claimed that the bill is an anti-trolling measure (and re-titled it as such after it was drafted), evidence from multiple witnesses appearing before this Committee, including the government department that drafted the bill, conclusively establishes that the bill is no such thing. To the contrary, not only does this bill fail to provide any practical means to combat the scrouge of online trolling, in providing blanket protection from liability to those hosting defamatory comments on the web pages they own and administer, as well as the extensive legal safe harbor it provides to social media companies hosting defamatory material, the bill is likely to make the problem of online trolling worse. In this context, leading defamation barrister Ms Sue Chysanthou SC submitted in her clarification of evidence to this committee that the bill not only fails to protect Australians from online trolls, the sweeping defences from liability it provides effectively make this bill a ‘trolls’ charter’. The significant dangers that this poorly conceived and drafted bill will make the problem of online trolling worse are discussed in more detail below.
The bill is an ill-considered response to the problem of online trolling, and in its present form appears to reflect an assumption that a remedy for this problem can be achieved by ad hoc adjustments to defamation law. This attitude ignores the fact that trolling on social media is a pernicious problem created by profound cultural and technological changes. Labor members of this committee believe that an effective remedy to the problem must be part of broader reform of the existing regulatory regime for the media, including social media. As we note in our recommendation 3 below, an inquiry into all aspects of media regulation would be the best means of devising truly effective remedies for online trolling.
Recommendations 2 and 3 in the majority report will improve the bill in some respects, but do not come close to addressing a host of other significant concerns raised by submitters to this committee, a number of which are outlined in this Minority Report.
Labor Members also wish to raise our concerns about Recommendation 1 of the majority report, which states:
The committee recommends that the bill be amended so that a social media page owner may be liable for a poster's defamatory material where the social media page owner:
•knowingly encourages the publication of a poster's defamatory material; and
•has been notified or is aware of the poster's defamatory material and has failed to remove it promptly.
While this recommendation purports to respond to the concerns about the effects of the blanket immunity from liability conferred by this bill on social media page owners in Australia, it seems to Labor members that it sets far too high a threshold. Under this proposed limitation on the blanket statutory immunity this bill would provide, the page owner may only be liable for defamatory material posted on their social media pages if they act with what is usually described as ‘malice’, in ‘knowingly encouraging’ the publication of defamatory material, and, in addition to the extremely high threshold of malice, the page owner does not remove the material promptly after notification or awareness of that defamatory material. At the very least, the limitation on the immunity from liability conferred by this bill proposed in Recommendation 1 should apply when the social media page owner acts with malice/knowingly encourages the publication of the defamatory material, OR they do not remove defamatory material in a reasonable time when they are notified or become aware of it.
Many of the key measures in this bill were heavily criticised in the consultation on the exposure draft bill carried out by the Attorney-General’s Department’s, and in evidence provided to the Inquiry into Social Media and Online Safety by the House Select Committee on Social Media and Online Safety, which reported in March.
The public submissions and the Report of the House Select Committee make clear that exposure draft of this bill was manifestly unfit for purpose. Although media companies are the companies most concerned about the implications of the Voller decision, media coverage at the time of those inquires highlighted the widespread concerns raised about this bill, and include:
'Top defamation judge says proposed ‘anti-troll’ laws a recipe for disaster', by Michaela Whitbourn, Sydney Morning Herald, 10 December 2021
'Fundamental flaws' in anti-trolling laws', by Maeve Bannister of AAP on 7News, 18 January 2022.
'Defamation experts reject Morrison government’s ‘anti-troll’ proposal', by Michaela Whitbourn Sydney Morning Herald, 24 January 2022.
'Proposed anti-trolling laws could worsen online abuse, Australian law experts say' by Paul Karp, The Guardian, 24 January 2022.
Much more recently, on 12 March 2022, an article by defamation expert Rebekah Giles appeared in the Weekend Australian, titled 'Badly drafted law protects Big Tech – but ignores victims of trolling.'
The concerns raised about the bill highlight the fact that however well-intentioned, poorly conceived and drafted laws can make a problem worse, rather than improve the situation. Politicians and the Canberra bureaucrats they direct to implement their ideas don’t always get new laws right, which is why consultation on new laws with experts, the business community and the wider Australian public is so important. The Government should be listening very carefully to criticisms about its draft laws, particularly those received through inquiry processes the Government itself has initiated, in order to ensure new laws are in fact fit for purpose, and do not have adverse unintended consequences.
It is abundantly clear that this careful consideration of feedback from consultations has not occurred in relation to this bill. To the contrary, Senator Cash, on behalf of the Government, has chosen to ignore the comprehensive feedback received on the exposure draft bill, including detailed submissions with compelling arguments and warnings from some of Australia’s leading experts, and to instead proceed with this bill in a form that is substantively unaltered from the heavily criticised exposure draft.
The vast majority of the submissions to this committee inquiry reiterated the concerns raised in relation to the substantively identical exposure draft.
For example, in its submission to this committee, the Business Council of Australia wrote:
The Business Council recommends not proceeding with this Bill, and instead encourages the government to continue to work through the Online Safety Act and the existing Model Defamation Provisions reform process to achieve meaningful improvements in Australia's online safety and updating defamation laws.
…
Online harms are the right problem to address, but this is not the right solution.
…
In its current form, any benefits of this Bill will be substantially outweighed by the costs - both the direct regulatory implementation costs and the wider social costs.
As drafted, the proposed Bill will do little to reduce trolling or provide Australians with a safer online environment.
…
As drafted, the proposed Bill will do little to reduce trolling or provide Australians with a safer online environment… recourse through defamation proceedings is 'almost impossible' because of the cost. But it will reduce privacy outcomes for all Australians who use social media services, and have a chilling effect on Australians' engagement in online discussion or debate.
A number of Australia’s leading defamation practitioners, including Ms Sue Chrysanthou SC, Patrick George, Rebekah Giles, Nicholas Olson, Richard Potter SC and Kieran Smark SC, made a submission to this committee which concluded that the Government’s:
… proposed “Anti-trolling” Act has many significant defects and should not proceed in its current form. The draft bears no relationship to the objectives announced by the Government in October 2021 and in fact, does the opposite by offering providers immunity - not accountability.
…
If the Commonwealth intends to legislate to deal with bullying online, it should do so without interfering in defamation laws. The present draft legislation does nothing to address that issue.
Responding to the High Court decision in Voller
Labor members of this committee agree that the Voller decision has raised serious concerns on the part of many individuals and organisations that host social media pages. In particular, we note that small businesses and community groups that operate social media pages, as well as media organisation with high traffic volume pages as detailed in the submission by Free TV, are concerned about their potential exposure to defamation liability, and may find it very challenging to invest time or resources into monitoring their social media pages for defamatory content.
The central purpose of the bill is to respond to the concerns about the Voller decision by substantially reforming defamation laws and creating a novel framework with the following key elements:
Liability for defamatory material is shifted from the social media page owner to the social media company. The bill deems that a person (including a corporation) who administers or maintains a social media page (‘a page owner’) is not a publisher of third-party material (and so immune from defamation liability for such material), and deems that the social media service provider (such as Meta/Facebook) is the publisher of material published on their service in Australia for the purposes of defamation law;
A new mechanism for Australians to request removal of content via an application to social media service providers, with the consent of the poster required for that removal to occur;
A new mechanisms for Australians to obtain contact details of posters of allegedly defamatory material posted online (including by anonymous posters), which may then be used to initiate legal proceedings, either (i) by request, with disclosure by consent of the poster; or (ii) if ordered to do so by a court pursuant to an end-user information disclosure order (EIDO);
Commonwealth intervention and grants to enable the Attorney-General to intervene in defamation proceedings on behalf of the Commonwealth, in certain circumstances, and to authorise the payment of reasonable costs to applicants in a such matters in certain circumstances.
However, despite the obvious concern that the Voller decision has raised, and the radical reform to Australia’s defamation laws this bill would put in place to respond to those concerns, not all submitters agreed that the Voller decision has changed the legal exposure of those hosting social media pages in Australia. Several witnesses pointed out that the High Court’s decision did not address the issue of defenses available to owners of social media pages, in particular the defence of ‘innocent dissemination’. The submission by the defamation experts led by Ms Chrysanthou SC submitted:
The recent decision of the High Court in Voller has been the subject of public discussion. A proper reading of that case is that there has been no change to the law of publication and the innocent dissemination defence protects persons who are not the originators of defamatory material on their social media pages or accounts from liability so long as they delete the material after receiving notice of its defamatory nature. It is simply a restatement of the law.
No legislative change is needed to deal with the decision given it effectively has no impact on the law. Some commentators have mischievously caused alarm about the Voller decision and it seems, persuaded the Commonwealth Government to propose a flawed draft bill to overcome their unjustified concerns about the settled law applied by the High Court.
As noted in the report of this committee, Ms Sue Chrysanthou SC went further in her verbal evidence to the committee, contending that:
The issue of publication has been defined by the common law for centuries. Basically, if you participate in publication, you're liable. The High Court's decision in Voller was predictable and predicted by defamation lawyers because all it does is recite and restate hundreds of years of common law. Voller has not changed the law of defamation at all. Anyone who knows anything about defamation will tell you that.
Labor members also note evidence provided to this committee that, contrary to concerns raised about the Voller decision by some page operators in Australia, there has not been anything resembling a flood of defamation claims against Australian owners of social media pages since the Voller decision, and that the Government’s claim that this bill must pass urgently, despite its multiple flaws and the risks it poses to users of the internet, may be misplaced.
However, Labor accepts that even if it is legally correct that the Voller decision has not changed Australian law, that decision highlights that defamation laws have not kept pace with the sweeping changes brought about by the advent of digital publishing and the rapidly expanding online world, and that reform to our defamation laws is needed. That being said, multiple submitters to this inquiry argued that the necessary work to bring defamation laws up to date with publishing in the online world are presently well underway in the Stage 2 review of the Model Defamation Provisions, which includes the liability of internet intermediaries, being conducted by the Meeting of Attorneys-General, led by the Government of NSW. That review, involving rigorous work and consultation with many of Australia’s defamation experts, will respond to the Voller decision and the broader questions it raises.
As noted in the majority report, the Law Council of Australia submitted that, 'intervention at the federal level in the law of defamation should not occur until the completion of the Stage 2 Review process and should form part of any package of reforms to the liability of online intermediaries more broadly'.
Similarly, Professor David Rolph submitted that:
…proceeding with this proposed reform at this time may be both premature and liable to detract from the uniformity of Australian defamation law. This is because the proposed reforms pre-empt many of the issues being considered in Stage 2 of the review of the Model Defamation provision currently being undertaken by the States and Territories and led by New South Wales.
The bill does not address the problem of online trolling – it may instead make the problem worse
Labor members of this committee agree that the Government should be responding to the harmful and cowardly practice online trolling. Regrettably, this bill does not serve this purpose. Many experts in the legal community, as well as online safety advocates and victims of online abuse, have raised significant concerns about the efficacy of the measures in this bill to deal with on-line trolling. Despite the title of this bill, and the assertions made by the Prime Minister and the Attorney-General in announcing the consultation draft on this bill on 28 November last year that this bill would help to protect children in particular from online trolling, evidence to this Committee conclusively demonstrated that this bill does not address the problem of on-line trolling, and that it was never intended to.
The Attorney-General’s own Department provided evidence that the name of this bill was changed from the Social Media (Defamation) Bill to the Social Media (Anti-Trolling) Bill at the direction of the Attorney-General’s office. The Government’s own Detailed Explanatory Notes accompanying the exposure draft bill contain no mention of trolling other than in the bill’s title, and notably still include what appears to have been the original – and accurate – name of the bill: the 'Social Media (Defamation) Bill 2021'. The Attorney-General’s Department also provided the following evidence:
Certainly, it's been it's been a matter of observation and feedback in the consultation process that the title is potentially misleading. I can be clear that the bill is about defamation and it is not intended to address broader types of online harm. The reason for it being in the title of the bill is that the behaviour that we are looking at is one form of trolling, but it certainly is not intended to suggest that this bill seeks to address trolling generally, nor online harms generally. It is a targeted bill that is about defamation and only defamation.
It is abundantly clear that rather than being an anti-trolling bill, this is a defamation law reform bill.
In this context, Ms Julie Inman Grant, the eSafety Commissioner, submitted that the bill poses a 'risk of public confusion over what the bill seeks to achieve if its present name is preserved', and further submitted that:
Trolling has become a common place term to describe a wide array of abuse. Over time this could serve to normalise or trivialise the very real suffering that those seeking to deliberately menace, or abuse others inflict on their targets.
The eSafety Commissioner recommended that the government consider changing the name of the bill:
We have reached a level of sophistication in this space, where there are gradations of harm that we are dealing with. Parliament has set a threshold in the set of definitions about what the serious cyberabuse is, what youth based cyberbullying is, so to lump that all together under the guise of trolling, I don't think is constructive. You could change the name of the bill and it would get rid of a lot of confusion and conflation.
Labor members agree with this suggestion, and recommend that if this bill does proceed in substantially amended form, the Government take the advice of the eSafety Commissioner, and numerous other submitters on this bill, and restore the bill’s accurate name as the Social Media (Defamation) Bill. This will help to remove the ‘confusion and conflation’ created by the Government’s misleading renaming and marketing campaign for this bill.
During public hearings, suggestions were made by Government members of this committee to some witnesses that despite this being in truth a defamation reform bill, defamation law might nevertheless provide a useful means to deal with some cases of on-line trolling. The answer to that suggestion from multiple witnesses to this Committee was a resounding ‘no’. To the contrary, several witnesses provided evidence that launching a private action for defamation is very expensive, slow, and stressful, and hence entirely unsuited to the problem of online trolling, which requires inexpensive and effective means to quickly remove offending material from online sites.
With respect to the need for a rapid response to harmful online material, the bill's explanatory memorandum observes that '…the challenges presented by defamation over social media are particularly acute, given the speed at which such material can spread and the limited scope to contain the spread of a defamatory post once it has been published on a social media network.' This only further underscores the extremely limited use of defamation proceedings in this context, which may take months to commence and reach substantive hearings, and years to conclude.
One of the Government’s hand-picked witnesses to this inquiry, Ms Erin Molan, gave evidence that because of cost alone, defamation proceedings are unavailable to the vast majority of Australians. She said of the defamation proceeding she had been involved in:
It's an experience you wouldn't wish upon your worst enemy. I earn an above average salary, absolutely, and the cost of it is crippling. You would only ever take that on if you absolutely had to and you could. My experience and my belief would be that, for 99.9 per cent of Australians, it would be absolutely impossible to afford—the cost of living is already hard enough for people to afford—to get a lawyer and take action. It was incredibly difficult for me, and still is, and I earn an above average salary.
In light of this evidence, the notion that Australian children would be in a position to commence civil defamation proceedings to deal with on-line trolling, as the Government implied when announcing this bill, is clearly untenable.
Ms Nyadol Nyuon, also provided evidence regarding how unsuitable defamation laws are to deal with online abuse on social media, given the speed at which such material can spread once it has been published on a social media network, and the sheer number of individual abusers. She said:
I receive a lot of online abuse from a lot of anonymous trolls. I receive racist abuse that refers to me in derogatory terms, that is dismissive, that is purely racist in its delivery, but the sheer volume of it makes it hard to be able to deal with each individual who sends it. If I was to dedicate my time to trying to expose each one, it would be unmanageable.
Further, as noted in the majority report, victim-survivors of domestic and family violence are among a cohort of Australians least likely to be able to seek redress through a court process due to the high cost of defamation proceedings. Women's Services Network (Wesnet), submitted that the bill:
…may in fact impact adversely on women and children. It is possible that a victim-survivor's anonymous comments on social media - which are often surveilled and monitored by abusers - could become the subject of defamation proceedings. These proceedings would not necessarily take into account a history of family violence perpetrated by the plaintiff.
The majority report also recounts the evidence of the eSafety Commissioner, who submitted that the bill may require the complainant to have at least a working knowledge of defamation law, and be able to distinguish between offensive, hurtful and insulting comments and material harmful to a person's reputation:
In our experience, the general degree of awareness of what constitutes potentially defamatory material posted online is likely low among most Australian end-users of social media services. The need to self-assess whether there is a right to obtain relief under the law of defamation is likely to lead to many complaints under the scheme falling short of what might be considered actionable under the law of defamation.
We are revisiting this evidence in this Minority Report because the response of the government to these concerns highlights how extremely narrow the benefits of this bill would be in practice for victims of on-line defamation. The Attorney-General’s Department conceded that the bill does not seek to address all forms of online harm, or address all avenues of response to reputational harm on social media:
The points the deputy chair mentioned are quite accurate, which is not everybody can access defamation proceedings. Not all objectionable material on social media meets the criteria of defamation let alone is even roughly about reputational harm. So this bill seeks to do a very specific and narrow thing, which is to assist people who are faced with reputational harm on social media, who would, in light of their circumstances and the nature of the reputational harm that is being effected, be minded to commence defamation proceedings to rectify that situation. But the thing that stands in their way from doing so is the anonymity of the originator. This bill seeks to open up that door and help those people commence defamation proceedings in those circumstances.
It appears from this response that when it comes to the victims of online abuse, this bill is primarily for the benefit of wealthy individuals with knowledge of defamation law or access to expert legal counsel, who are minded to sue for defamation and who unable to identify a person who they believe has defamed them online, including through the usual processes of identification through preliminary discovery.
Additional concerns about the unintended adverse effect of the bill
The submission led by Ms Sue Chrysanthou SC clearly explained the concern held by those legal experts that this bill will make the online world less safe (paragraphs 25 – 26):
The bill would immediately overturn Voller, giving immunity to media organisations and other businesses for carrying defamatory comments, no matter how defamatory, and even once they had been put on notice of the defamatory character of the comments in question.
It is difficult to see the need for such a provision. Whatever the rationale for protecting not for profit, small-scale, page owners, there seems no reason to immunise large corporations who publish defamatory material as part of their overall business model.
That submission also raised concerns about the inadequacies of the complaint procedures at the heart of this bill, concluding that the defences and the immunities the bill provides to both social media page owners and social media companies could make the situation far worse by leaving victims of defamatory posts with no legal recourse (at paragraphs 33 – 35):
These matters demonstrate the inadequacy of the prescribed requirements for a complaints scheme under the bill. As a result, applicants who are the subject of a defamatory post on social media may be left in the invidious position of having no effective recourse against the provider (because of the defence given), the page owner (because of the immunity given) or the commentator (for the various reasons just set out). Most significantly, highly defamatory comments may remain online, no matter what steps the applicant takes, and despite the power of the relevant provider to remove them.
… the Voller decision is just and reasonable as those who make and/or facilitate such false and malicious accusations should be held liable particularly once on notice of them, unless they can show they have a reasonable excuse as provided by the defence of innocent dissemination. Categorical immunity to page owners or defence to providers is in this context misconceived and incongruous with the public statements of the Prime Minister and Deputy Prime Minister on 7 October 2021 which focussed on the liability of providers.
It inescapably follows that the combined effect of the grant of immunity to page owners and of the defence to providers is unjust and oppressively weighted against applicants.
It is not possible to see how legislation intended to address the problem of “trolling” could be regarded as addressing that destructive problem, when it would likely leave many victims of such conduct without any remedy, including the most important remedy of having the material in question taken down from the social media service. It is also against the public interest to leave indefensibly defamatory material online, where it may mislead the public generally.
In this context, the evidence of Ms Erin Molan is important, as she submitted that social media providers need to be accountable for publishing harmful and defamatory material and its impacts on Australians: 'There has got to be a responsibility somewhere when it comes to the platforms that publish it and allow it to be written.' Yet the immunity from liability this bill provides to page owners in Australia, and the legal safe harbor it provides to social media companies who comply with the requirements of the bill directed primarily toward identifying posters, would appear to have the opposite effect.
Impact on the privacy of Australians
In order to rely on the legal safe harbor this bill creates for social media companies, those companies must collect and then keep updated a range of personal identification material in relation to every user of their service, including:
the name of the person or the name by which they are usually known;
an email address and phone number that can be used to contact the person; and
such other information as enabled by the legislative rules.
The Business Council of Australia made a strong submission to this Committee about the danger this measure poses to the privacy of Australians, submitting that:
For some, such as people seeking support for mental health concerns, victims of domestic violence, whistle- blowers, or people exploring their sexual identity, there are substantial benefits to being able to access these services anonymously or pseudonymously. The Bill, as drafted, is a blunt instrument that will run counter to the best interests of these groups and all Australians without any tangible improvements to online safety outcomes.
… Beyond the costs of removing anonymity for all Australians online, the requirement for social media businesses to collect and hold even greater volumes of Australians' personal information runs counter to other government initiatives and general best practice privacy principles, such as data minimization.
The Bill incentivises services to collect more personal information from their users by offering legal safe harbours if they do so. This means that Australians who prefer not to use their real name online, operate anonymously or pseudonymously, or choose not to share their contact details with a very wide range of websites for safety or privacy reasons, may no longer be able to do so.
It its submission, Twitter further emphasised the importance of online anonymity for many internet users, in terms of safety and privacy, but noted that Twitter is already careful to ensure it can identify potential on-line criminals to law enforcement:
Simply put, in addition to providing safety, anonymity and pseudonymity provides people with the agency and control to choose how they present themselves. This has been a core tenet of the internet since its inception and is essential to a society that promotes individual choice and freedoms.
To be clear, pseudonymity is not a shield to the Twitter Rules or TOS, nor is it a shield from criminal liability. When a person signs up for a Twitter account, we ask for a verified email or phone number, which can assist our teams in preventing ban evasion, platform manipulation, or compliance with duly executed legal and information requests. Police and authorised representatives can submit requests for information about an account they’re investigating any time via our dedicated Legal Requests Submission site.
Twitter does not allow fake accounts or platform manipulation on our service. We work to prevent spam and fake accounts from harassing other people on the service both at the sign-up stage so they won’t be able to join, and by removing accounts that have been proven to cause trouble.
As noted in the majority report, Reset commented that 'anonymity is important for many different communities and user groups, including for [example] women, LGBTIQ+ and communities of colour'. Echoing that concern, Electronic Frontiers Australia submitted that:
Some people, because of their jobs or other circumstances, cannot speak freely under their own name. This applies both to people who offend powerful Australians, and also to people who speak critically, from Australia, about powerful individuals in other countries. The very people anonymous users most fear discovering their identity are exactly the people most likely to try to use the powers under the draft to unmask their anonymous critics. Even if the complaint is subsequently found to be meritless, the consequences of being unmasked could be potentially career-ending or similarly catastrophic.
Evidence was also provided to the Committee that while the vast majority of responsible users of social media will have their personal information collected under the broad terms of this bill, the very people this bill targets, on-line trolls who aim to remain anonymous, may seek to conceal their identities through use of VPNs and other means to keep their identities hidden.
Professor Michael Douglas submitted that obtaining location data may not be enough to identify anonymous users, limiting the impact of the complaints scheme in facilitating justice:
…country location data can be easily fabricated with little technological savvy. Many Australians are familiar with the use of proxies. If a person wants to cause harm online anonymously, they can do so without much difficulty.
As noted in the committee report, the Office of the Australian Information Commissioner (OAIC) submitted that the use of a person's legal name to satisfy the compliance requirements may result in:
…social media services seeking to collect identity information, such as government issued credentials like a driver's licence or passport, in order to verify the authenticity of an individual's name. This is problematic given the privacy and security risks associated with the mishandling of this information. For instance, government issued credentials contain significantly more personal information than may already be collected and held by social media services (such as address, date of birth and other identifiers like Medicare number). Further, compromise of identity credentials and information can lead to identity theft, which has significant consequences for individuals.
The Attorney-General’s Department did not, in the view of Labor members, provide a substantive response to these very real concerns.
To paraphrase an analogy used in relation to another data harvesting bill enacted by this government, it appears this bill will compel private companies outside Australia’s jurisdiction to sweep up and then constantly update vast haystacks of personal information to identify Australians in case they one day have to search for a needle.
Australian courts already have the power to ‘unmask trolls’
Numerous submitters to this inquiry, including the Law Council of Australia, were concerned that the Government’s claim this bill provided some new means to ‘unmask trolls’ was not based in fact, as Australian courts already have the power to order the identification of potential defendants to actions through the preliminary discovery process.
As it stands, Australian courts have a process for unmasking online accounts. Australians can apply for preliminary discovery in court, requesting that companies provide details to a claimant. Therefore, we question why a new order under the SMAT Bill is needed, and how the process in the draft Bill would make it more expeditious for people to sue for defamation in Australia beyond the legal frameworks that are already in place.
Regulatory impacts of the bill
The Business Council of Australia argued that the bill is ‘disproportionately punitive’ in effect, submitting that:
The defences prescribed in the Bill place unrealistic requirements for businesses to access them. The Bill will not allow regulated entities to access a defence where an individual who has posted allegedly defamatory content declines to provide their contact details and a court declines to grant an order requiring disclosure of the individuals contact details. This is disproportionately punitive, preventing business from accessing a defence because of a decision made by a third party that they have no control over and where a court may have determined not to disclose these details.
The Business Council further submitted that the requirement for social media companies to collect the person data of every account holder and then to continually update it would be:
onerous and burdensome - not only to the regulated social media businesses involved, but also for Australian users and businesses. To have the level of confidence necessary to meet the requirements in the Bill will create substantial business costs and be highly intrusive for users of the services, well out of proportion to the problem being resolved.
The Business Council of Australia also raised concerns about the effect of poorly thought through government intervention in the operation of the private sector, and submitted that the bill 'will set a bad precedent for government intervention across all parts of the economy by creating unrealistic liabilities for businesses operating in Australia while creating potentially unwarranted protection for others.'
Impact on the Australia-United States Free Trade Agreement
The Business Council of Australia, Meta and several other submitters raised concerns about the measure in this bill that require the establishment of a local entity in order for social media companies to rely on the legal safe harbor this bill provides for. It was submitted that this is a very significant government intervention in the structure of private companies, and may conflict with the terms and spirit of the Australia-United States Free Trade Agreement. Article 10.5 of the Australia-United States Free Trade Agreement [2005] ATS 1 (AUSFTA) states:
Neither Party may require a service supplier of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.
In this context, the Business Council of Australia submitted:
Australia has long been a champion of a rules-based global order that supports the digitalisation of trade and has argued against data localisation requirements. Unfortunately, the current drafting of the Bill could create the perception that Australia was supportive of regulatory regimes that would justify these requirements, increasing barriers to cross-border data flows.
Given many of the entities likely to be regulated by this legislation are headquartered in the United States, it also appears in breach of the Free Trade Agreement (FTA) between Australia and the United States.
Given the great importance of Australia’s relationship with the United States, in economic, political and geopolitical terms, the Attorney-General’s Department response to concerns about the FTA, based on the assertion that 'an applicable exemption can be relied upon in the General Agreement on Trade in Services, which is incorporated into the US free trade agreement by express reference', is a matter that Labor members believe should be examined in far more details, with separate advice on this matter to be provided by the Department of Foreign Affairs and Trade.
Conclusion
The Labor members of this Committee welcome the Government’s acknowledgment of the concerns of Australian owners of social media pages about the impacts of the Voller decision. We believe those concerns should be addressed.
With respect to the other purported purpose of this bill, responding to the scourge of on-line trolling, particularly the harm it does to young Australians, we believe the evidence presented to this committee conclusively demonstrates that this bill fails to address that problem in any practical way. Of even great concern to Labor members is that that due to numerous flaws in the design of this bill, in particular in relation to the sweeping legal immunities from liability this bill provides for page owners and social media companies that establish the requisite complaints processes and related requirements, this bill may operate as a ‘trolls’ charter’, making the problem of on-line trolling even worse than it is at present.
Labor members do not believe that the recommendations for amendments to this bill in the majority report adequately address many of the concerns raised about the bill’s operation, and that significant further amendments would be required to ensure this bill is fit for purpose.
Given there are only three days of this Parliamentary term remaining, and a significant portion of those days will be taken up with the federal Budget, Labor members do not believe there is sufficient time to draft, consult on and then properly debate in the parliament the wide range of significant amendments to this bill that would be required to make it fit for purpose, and that are necessary to ameliorate the significant adverse consequences that would arise from its operation, raised in evidence before this committee. For example, even in relation to the modest recommendations for amendments to this bill made in the majority report, the Government members of this committee note that:
It is important to reiterate that the committee is concerned that a mandatory 'take down' scheme may enable or encourage social media service providers to adopt a 'trigger happy' approach, resulting in material being removed in a manner which constitutes an unjustifiable censorship of free speech.
Labor members of this Committee agree that where laws are being made that may impinge on rights as fundamental as freedom of speech, those laws should not be drafted in haste or rushed through the parliament without appropriate time for careful consideration and debate by the elected representatives of the Australian people.
Recommendation
That this bill not be passed without substantial amendments to address the concerns raised about its efficacy and the unintended consequences of its operation presented in evidence to this Committee.
In order to address the concerns raised by the High Court’s decision in Voller in an effective and timely manner, without bulldozing through the middle of the far more detailed defamation law reform work currently in an advanced stage under the MAG process, Labor members suggest the Government prepare a short bill, as an interim measure, that is confined to dealing with the issues of liability raised by Australian social media page owners in the wake of the Voller decision. The submission to this Committee led by Ms Chrysanthou SC includes a proposal for a provision of this kind. It is suggested that such a limited provision could serve as an interim measure to address the legitimate concerns about intermediary liability raised by social media page owners following the Voller decision, while the MAG process, that will provide a more comprehensive response to the many complex problems of defamation in the on-line world, is completed and implemented.
Recommendation
That the Government urgently consult on and prepare a short bill that provides an interim response to the Voller decision with respect to the concerns of Australian owners of social media pages, and that is consistent with the recommendations and concerns raised in evidence to this Committee. That interim measure should sunset on completion of Stage 2 of the defamation law reform process that is currently being conducted under the auspices of the Meetings of Attorneys-General.
Recommendation
That the Government implement a broad inquiry into the existing regulatory regime for media, including social media, as the best means of devising effective remedies for online trolling. Trolling on social media is a pernicious problem arising from profound cultural and technological changes, and this problem cannot be dealt in an ad hoc manner or solely as an aspect of defamation-law reform.
Senator the Hon Kim Carr
Deputy Chair