Anti-Trolling: You Cannot Get Away With Hiding Under a Bridge Forever

The Social Media (Anti-Trolling) Bill 2022 (the Bill) creates a framework to crack down on and unmask anonymous online trolls on social media. A key purpose of the Bill is to empower courts to make orders requiring social media giants to identify people who are responsible for potentially defamatory posts in Australia, even where such posts are published anonymously.

In the case of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (Voller), the majority in the High Court determined that individuals and organisations with social media pages where third party material could be posted (through comments) may be classed as ‘publishers’ of that material in the context of defamation law. This meant that the social media page owners could be held liable, even if they were unaware of comments being posted on their social media page.

If passed, the Bill will alter the common law position arising from Voller, including to ensure that owners and administrators of social media pages are not deemed to be ‘publishers’ for the purpose of defamation law. Instead, the Bill creates a mechanism by which complainants are able to seek remedy directly from the poster of the defamatory content (poster). 

The Bill is intended to:

  • override the common law position where social media page owners in Australia are publishers of defamatory third-party comments on those pages, as seen in Voller;
  • prescribe that the social media platform upon which a comment is made is the publisher of that comment;
  • provide social media platforms with a limited defence regarding the publication of defamatory comments made on their platform in Australia, being that the poster will be held liable in certain circumstances;
  • introduce a new defamation complaint handling scheme, which brings social media complainants into direct contact with the end users of the defamatory posts; and
  • empower courts to require social media platforms to disclose specific contact information in connection with defamation proceedings.

The Bill provides a new complaints scheme which will allow the complainant to request from the social media platform the defamatory poster’s ‘relevant contact details’. This includes the poster’s name, email address and telephone number, and is intended for substituted service where the authorisation of the court has been granted. This can only be done where the publisher is located in Australia, with reference to where the comment was posted according to the geolocation technology of the provider.

Where the complainant is unable to gain the relevant contact details from the provider, then a court order can be made called an ‘End-user information disclosure order’ (EIDO). To make an EIDO, the complainant must first satisfy the court that they have reasonable grounds to claim relief in defamation proceedings, and that the complainant is unable to ascertain the poster’s relevant contact details or geolocation without an EIDO.

Pursuant to the Bill in its current form, social media platforms will have a limited defence to liability in the context of defamation proceedings. In order for the social media platforms to benefit from this defence, they must have:

  • a complaints scheme which adheres to the Bill’s requirements;
  • complied with the complaints procedure set out in the complaints scheme (in the event that a complaint is made); and
  • a nominated entity incorporated in Australia who has complied with any EIDO made against them.

Lastly, the Bill proposes to give the Attorney-General the power to intervene in matters arising under the Bill, or in any defamation proceedings in which social media platforms are a party. This would include authorising the Commonwealth to pay the complainant’s costs if the proceedings concern an uncertain area of law, and to assist socially or economically disadvantaged members of the public.

Lavan Comment

Defamation law is a growing and complex area of the law, particularly given constant changes and developments with technology.  If passed, the Bill will change the common law position established by the High Court in 2021, placing liability upon social media companies in Australia unless they are able to satisfy that they have a proper defence against defamation claims, thus opening up posters to personal liability for a defamation claim.

It is well known that social media posts and comments can quickly go ‘viral’, spreading world-wide almost instantly. This makes it even more critical that the legal position is clear in relation to who carries liability for defamatory content on social media platforms, and that proper relief is available to the victim(s) of such content.

Importantly, if it is enacted the Bill may serve not only as a mechanism by which relief may be sought, but as a deterrent for posters of content on social media platforms. 

If you, or someone you know may be impacted by the Bill, or you have any questions in relation to the Bill, please do not hesitate to contact Iain Freeman, Partner in Lavan’s Litigation and Dispute Resolution team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.