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Michaelia Cash (Image: AAP)

When Prime Minister Scott Morrison and Attorney-General Michaelia Cash announced a social media bill, they said it was about one thing: stopping online anonymous trolling.

“The government is going to take further steps to protect Australians and, in particular, young Australians online because that is what we all deserve,” Cash said.

More became clear on Wednesday. The Attorney-General’s Department released an exposure draft of the Social Media (Anti-Trolling) Bill, along with a commitment to establish an inquiry investigating online harms. What these show is that, beyond the spin, this law is primarily about cleaning up a messy High Court decision about defamation.

Devil in the detail

The additional details answer some questions and raises some more. The bill seeks to make it easier to reveal the identity and contact details of online users so an individual could sue them for defamation.

It does this through two main mechanisms. The first is incentivising social media companies (who will be required to have a legal presence as a business in Australia) to create a simple process that allows users to request that a comment is taken down and that the contact details of the commenter are provided to them so they can sue for defamation. The company will then carry out that request if the commenter agrees to either ask.

The second part is the establishment of an “end user disclosure order”, a court order that requires a social media company to reveal the contact details of a commenter who is accused of making a defamatory statement on their service.

The exposure bill reveals that social media companies have 72 hours from when a complaint is made to contact the commenter to reveal the details. They also be able to reject a complaint if they reasonably believe it “does not genuinely relate to the potential institution by the complainant of a defamation proceeding”.

It remains to be seen how social media companies will determine the validity of a defamation claim from someone making a complaint within such a tight timeframe.

It establishes that the end user disclosure order would be granted only if the court reasonably believes that the complainant would be able to obtain relief (i.e. get a court to rule in your favour) for defamation. University of Sydney media law lecturer Professor David Rolph says this differs from the current process, preliminary discovery, and possibly may make it a higher bar to clear to get someone’s details. 

“By creating an additional right, it certainly increases complexity,” he said. 

If that’s the case, in theory this could actually make it more difficult to get an anonymous social media user’s contact details through the court system. However, the requirement to have an Australian legal entity (which solves jurisdictional issues for Australians trying to get details from multinational companies) and a streamlined, non-judicial complaint process are designed to remove existing friction. 

The bill also contains safeguards that allow a court to refuse the order if it’s likely to present a risk to the commenter’s safety or in the interests of justice. This would kick in if a domestic violence abuser sought the contact details of a survivor, for example.

Additionally, the bill paves the way for the federal government to get involved in proceedings against social media companies. The exposure draft explicitly reserves the right for the attorney-general to be included as a party to a defamation proceeding against a social media company — allowing them to potentially use their staff and pay the costs for pursuing a claim. The attorney-general can use this power for cases that are about unsettled areas of law or to assist individuals and groups who are “socially or economically disadvantaged”.

These provisions read as a way to improve access on the margins, but seemingly won’t underwrite most defamation proceedings which remain economically inaccessible to most. (It also opens the door to politicisation of the process as the government controls the purse strings.) 

All this suggests the bill will streamline aspects of defamation proceedings but not make them significantly more accessible for the average person wanting to deal with online trolling.

If not to stop trolling, why?

Knowing this, perhaps the most significant aspect of this law is that it overturns the Voller decision. In September the High Court upheld a NSW judgment that found publishers “facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments”. 

This bill shifts the liability from a publisher to the social media platform where a comment is made. This liability for defamatory comments is the “stick” for the legislation: social media companies aren’t required to collect user ID or to have a simple process for dealing with defamation claims — but having those is recognised as a defence against this liability, according to the exposure draft.

As noted in Monday’s Tips and Murmurs, some media received the reforms with open arms. (Full disclosure: Crikey would benefit as well.) Leaving the owner of a social media page responsible for third-party comments is out of step with most of the world. But leaving the platform liable is out of step, too. 

It is notable, then, that this bill was sold as an “anti-trolling” measure but its biggest impact will probably be cleaning up a messy judgment that left the media, businesses and individuals running social media pages on the hook for defamation claims. (This solution opens a whole new can of worms with concerns about a de facto social media identification policy that would make Australians hand over contact details to several, if not more than a dozen, tech companies.)

But “fixing a narrow section of defamation law” isn’t as good as an election slogan, is it?