Social Media (Anti-Trolling) Bill 2021 released

The Australian Government has released the Social Media (Anti-Trolling) Bill 2021 (Bill) in an effort to protect Australians who maintain social media pages (Page Owners).  The need for such legislation is obvious in light of the High Court’s decision in the case of Fairfax Media Publications v Voller [2021] HCA 27 (Fairfax) which determined that Page Owners may be exposed to defamation liability as a result of defamatory comments left on the page by third parties.  Such liability would arise even where the owner was unaware of the defamatory comment upon their page.

The Bill

At a glance the Bill attempts to preclude liability in defamation from arising against Page Owners where a third party produces a defamatory comment on said page, as was the case in Fairfax.  The Bill achieves this by:

• excluding Page Owners from being taken as publishers of a third-party comment posted on the page;
• taking the person who provided the defamatory comment to be the publisher of the comment;
• establishing a defence, in certain circumstances, for social media services providers (for example, Facebook) where they are the publisher of a comment on a Page Owner’s page;
• providing for an application to be made to Court to determine the relevant contact details or country location data of a commenter on a Page Owners page who has made defamatory comments; and
• requiring a ‘nominated entity’ within Australia of any social media service provider with more than 250,000 Australian account-holders.

Who does the law consider the ‘publisher’ of a defamatory comment?

In order to establish that a person or corporation has committed the tort of defamation it must be shown that they were the publisher of materials alleged to be defamatory.  In fact, one must be instrumental to, or a participant in, the communication of the alleged defamatory matter.^[1]

Section 14 of the Bill removes the possibility of a Page Owner being considered a ‘publisher’ of the comments left on a page they own, operate or manage.  That section provides:

• If:
  • an end-user of a social media service (Page Owner) maintains or administers a page of the social media service; and
  • another end-user (Commenter) has posted a comment on the page;

      then, for the purposes of the general law of the tort of defamation:

• in a case where the page owner is an Australian person – the page owner is taken not to be a publisher of the comment; and
• in a case where the comment was made in Australia – the provider of the social media service is taken to be a publisher.

Interestingly, section 14(2) of the Bill provides that where the Page Owner posts a comment on their page from within Australia, the provider of the social media services (again, for example, Facebook) would be taken to be a publisher of the comments.

It is clear that the Australian Government is intending to take all liability away from the person or corporation administrating the social media page.  Instead, in certain cases as described above, it will be the provider of the social media service who is considered the publisher of comments left on a page.

End-user information disclosure orders

Section 18 of the Bill allows a person to apply for an end-user information disclosure order requiring the provider of the social media service to disclose a commenter’s contact details or country location data.  Such an order will only be granted in certain circumstances, namely where it is possible that the comment/s made were defamatory in nature.

If a person has commented on a page, in circumstances where a reasonable belief exists that such comment was defamatory and within Australian jurisdiction, a court may grant an end-user information disclosure order if the Page Owner:

• is unable to ascertain the contact details of the commenter;
• is unable to ascertain whether the comment was made in Australia; or
• reasonably believes that the comment was made in Australia.

Defence for social media providers

Section 15 of the Bill provides, in certain circumstances, a defence for social media providers which will shield them against a defamation proceeding relating to defamatory comments which they are liable as publishers for under section 14 of the Bill.

Before the defence is enlivened, the social media provider must have a complaints scheme that meets the prescribed requirements of the Bill.^[2]  The requirements of such scheme are long and detailed but in summary require the social media provider to:

• enable complainants to make a complaint to the provider of the service about a particular comment;
• inform the commenter that their comment is the subject of a complaint within 72 hours;
• disclose the country location data of the commenter to the complainant within 72 hours;
• remove, with consent of the commenter, the comment complained about; and
• upon the resolution of the complaint, notify the commenter within 72 hours of such resolution.

If it can be seen that the social media provider maintained and complied with a complaints scheme as detailed above and one of the following conditions are satisfied, the provider will have a defence to an action in the tort of defamation:^[3]

• the complainant has not requested the provider to disclose the contact details of the commenter and a court has not made an end-user information disclosure order in relation to the comment;
• the complainant has requested the provider disclose the contact details of the commenter and the provider has been forthcoming in providing those details;
• where an end-user information disclosure order was made against the provider, the provider disclosed the contact details of the commenter to the complainant and complied with the order.

Takeaways

The Bill is currently in draft form and has not yet passed into law.  However, it gives effect to myriad protections for Page Owner’s and social media providers against defamatory comments left by third parties on social media pages.  The Bill ensures that such comments, which would otherwise have been picked up under the ‘arguably outdated’ tort of defamation, can no longer see innocent Page Owners found liable for comments which they are substantially removed from.

Links and further references

Legislation

Social Media (Anti-Trolling) Bill 2021

Cases

Fairfax Media Publications v Voller [2021] HCA 27

Webb v Bloch [1928] HCA 50.

Further information about social media law

If you are a publisher and need advice on compliance, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Webb v Bloch [1928] HCA 50.

[2] The Bill s 15(2)(b).

[3] The Bill s 15(2).

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