On September 8, 2021, the High Court delivered the landmark Voller decision, dismissing appeals by media outlets against the decision of the New South Wales Supreme Court which held that the news media and users of social media and other internet platforms may be held liable for content posted by others to their pages.
Unhappy with the result, the media outlets led by the vocal Murdoch press lobbied for the introduction of laws that will exempt them from liability in such circumstances.
On Wednesday (December 1), the Federal Government proposed changes, signalling a significant watering-down of the effect of the decision in Voller in an exposure draft of the Social Media (Anti-Trolling) Bill 2021 – even though a detailed reform process to consider the very same issues is already being undertaken by the NSW Government.
Despite being described as “anti-trolling” legislation, the Bill does not attempt to address “trolling” – deliberately bullying, harassing or annoying a person to evoke a reaction.
The word “troll” only appears in the title of the Bill, and words such as “bully … harass … annoy” do not appear at all.
Instead, the Bill is targeted at defamation – the publication of defamatory matter to a third party, not the publication of material to the person being trolled.
Notably, the Bill proposes:
- to exempt media outlets and other social media “page owners” from liability for defamatory user comments altogether – a statutory reversal of the decision in Voller; and
- to provide a cheap mechanism by which social media giants can avoid liability for defamatory user comments for no practical benefit to complainants.
So, what does the Bill involve?
The removal of liability for owners/operators of social media pages
The Bill provides that for the purpose of the general law of the tort of defamation, an Australian person who maintains or administers a page of a social media service is taken not to be a publisher of a third-party comment posted on the page.
This is a direct displacement of the decision in Voller, in which a majority of the High Court of Australia held that page owners could (but not necessarily would) be held liable for defamatory comments made by third parties.
Clause 14 of the Bill further provides that where a comment is made by an end-user of a social media service within Australia, then the social media service provider is taken to be a publisher of the third-party comment.
Clause 15 provides a defence to social media service providers where certain requirements under the Bill are satisfied.
A new defence available to social media providers and the introduction of a complaints mechanism
The Bill seeks to introduce a new defence for social media service providers which arguably makes it easier for social media providers to avoid liability for publication (and continuing publication) of defamatory comments and harder for defamed persons to enforce their rights by commencing (and successfully prosecuting) defamation proceedings.
Clause 15(2) provides a defence to social media service providers who are joined as a defendant to a defamation proceeding commenced in respect of a third-party comment published in Australia if they have a complaints scheme that meets the requirements of section 16 of the Bill and they have complied with that scheme upon the making of a complaint.
The complaints scheme requires the social media service provider to:
Within 72 hours:
1.1 notify the commenter of the complaint;
1.2 notify the applicant that the commenter has been informed of the complaint; and
1.3 provide country location data of the commenter to the applicant in order to assist the applicant in the potential institution of defamation proceedings;
2. notify the applicant of the outcome of the complaint within 72 hours of the occurrence of the outcome; and
3. if dissatisfied (for example, if the commenter does not consent to removal of the comment):
3.1 the applicant can request the relevant contact details of the commenter to assist the applicant in the potential institution of defamation proceedings; and
3.2 within 72 hours of the request, the provider must ask the commenter if they consent to disclosure of their details.
The complaints scheme has obvious flaws. First, it does not require the social media provider to seek the commenter’s consent to disclose identifying information unless and until the complainant invokes the second step in the process. Why not ask them at the outset?
Secondly, the Bill does not provide the social media service provider any protection to disclose relevant contact details of its own volition without penalty.
Thirdly, it does not require the social media service provider to remove defamatory content if it is satisfied that the content is defamatory.
Clause 16(1)(e) also allows the social media service provider to remove the comment(s) complained of if the commenter consents to such action being taken. Why this needs to be included in the Bill at all is unclear.
Notwithstanding, clause 16(1)(h) removes any obligation of the social media service provider to comply with the complaints scheme if the provider reasonably believes that the defamation complaint does not relate to the potential institution of defamation proceedings against the commenter by the applicant.
No guidance is provided on what a social media service provider must prove to demonstrate they “reasonably believed” a complaint did not satisfy this test. It may be enough that the social media service provider does not consider the comment to be defamatory. This undermines the complaints scheme process.
In practical terms, persons who are defamed by comments made by third-parties on social media sites and thus published to the world are once again at the whim of social media service providers.
The fate of those adversely affected by social media commentary is in the hands of large international corporations who, although they might not want to, can afford to litigate such matters and are arguably therefore more likely to rely on the exclusion in clause 16(1)(h) to the detriment of those seeking to enforce their rights and restore their reputation in Australia.
End-user information disclosure orders – a way around the complaints scheme?
If a prospective plaintiff reasonably believes they have a cause of action in defamation against an end-user of a social media service and that the comment(s) were published in Australia, but is unable to ascertain the contact details of the commenter and is unable to determine conclusively if the comment(s) were published in Australia, clause 18 of the Bill provides a means for the prospective plaintiff to apply for an “end-user information disclosure order”.
If the prospective applicant satisfies a Court of the matters referred to above (specified in clause 18(1)), then the Court may order that the social media service provider disclose to the applicant, within the time specified by the Court:
- any relevant contact details of the commenter held by the provider or to which they have access; and
- any country location data of the commenter held by the provider or to which they have access.
“Relevant contact details” is defined to mean a person’s name (or the name by which the person is usually known), email address and phone number.
On its face, this clause seems to remedy the possibility left open by clause 16 that a commenter does not consent to their contact details being provided to an applicant with the Bill otherwise silent on the further steps available to the applicant – effectively leaving a stalemate between the applicant and the provider.
Whether or not this process is necessary remains to be seen based on the effectiveness, or potential lack thereof, of the complaints scheme provided for in clause 16 of the Bill.
Other potential issues with the end-user information disclosure orders are the efficacy of this process compared to pre-action discovery which is a process currently available to prospective defamation plaintiffs.
The end-user information disclosure process is more limited than pre-action discovery – due to the apparently exhaustive definition of “relevant contact details”, which would leave an applicant unable to obtain disclosure of an address for service or any IP address(es) used by the commenter.
The introduction of a “nominated entity” to administer a complaints scheme
To remedy what has notoriously been the difficult process of making complaints (whether through the Courts or otherwise) against large international social media providers with headquarters outside of Australia, the Bill proposes to introduce a requirement for those organisations with more than 250,000 users in Australia to establish a nominated entity to deal with complaints.
The nominated entity must be incorporated in Australia, must have an office within Australia, and must have access to:
- the relevant contact details of end-users of the service who have posted comments on pages of the service where those comments were published in Australia; and
- the country location data of end-users of the service who have posted comments on pages of the service where those comments were published in Australia.
Significant civil penalties are applicable if a social media service provider contravenes this section.
An initial review of the exposure draft raises significant concern for the apparent restriction of the decision in Voller and the impact this will have for prospective plaintiffs seeking to enforce their rights and restore their reputation in Australia as a result of defamatory comments published in the jurisdiction.
The Bill is touted as “a targeted, balanced measure“. However, the effect of the Bill is to provide complete defences in defamation to page owners and administrators, and to social media service providers who simply tell a complainant what they likely already know – that a comment originated within Australia.
Further, the procedure described in the Bill is only as good as the contact information provided by the commenter. In the end, if user details are false this is not helpful at all.
It is easy for social media users to provide fake contact details and create fake profiles to avoid identification and liability. If this occurs, it is likely that the schemes provided for in clauses 16 and 18 of the Bill will be rendered toothless and prospective plaintiffs will suffer immensely – without an ability to take action against a page owner or social media service provider or to have an effective way to remove defamatory comments.
On review, the true purpose of the Bill appears to be to provide a structure to the process of attributing liability for defamatory comments to third parties, circumventing the development of the common law in relation to the liability of publishers that has developed over centuries.
Further, the proposed measures make it easier for large media outlets and social media service providers – who have significant political clout to lobby for such changes – to avoid liability altogether.
The need for and timing of the Bill is curious since similar provisions are already being considered by Stage 2 of the Attorneys-General Review of Model Defamation Provisions.
Finally, defamation law in Australia recognised that the tort of defamation is completed by a bilateral act of communication of defamatory matter, which happens in the place where a comment is accessed and understood.
If a defamatory comment is posted by an overseas social media user but read by a person in Australia, the Bill will not apply.
This will have the anomalous effect of page owners and social media service providers being able to avail themselves of defences in most but not all defamations that occur within Australia, depending solely on whether the third party was in Australia when the comment was posted.
No doubt trolls will be quick to publicise this as a liability avoidance strategy.
All this is in response to political pressure arising from a case that did not hold that media outlets were actually liable for third party user comments, only that they might be.
Alex Tharby is a senior associate and Tracy Cole an associate at Bennett + Co
This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media and law publication.