Defamation defence offered to tech giants who help ‘unmask’ trolls

Social media companies would be able to avoid liability for the defamatory comments of users in Australia if they set up new complaints-handling schemes and revealed the identities of anonymous trolls to complainants seeking to sue them for defamation.

An exposure draft of proposed anti-trolling laws, released by the federal government on Wednesday, makes clear that social media companies will be considered “publishers” of users’ comments made in Australia on their platforms and can be held liable for defamatory comments, while media companies and individuals with public Facebook pages will not be responsible for third-party comments.

The federal government has announced a change to defamation laws to tackle anonymous trolls.Credit: Getty Images

Prime Minister Scott Morrison has signalled the Coalition’s tough-on-tech platform will be a key election pitch to voters ahead of next year’s federal poll.

Characterising the companies as a potential threat to Australians, Mr Morrison said on Wednesday the government was “ripping the mask off” trolls.

“You’ve got to have the strength to stand up to the big tech companies,” Mr Morrison said, as he announced a new Parliamentary inquiry into the toxic impact of social media. But legal experts are unconvinced the changes will improve online safety.

The proposed changes come as Coalition MPs, including Defence Minister Peter Dutton and Victorian senator Sarah Henderson, have shown their willingness to pursue defamation actions over comments on social media.

The proposed laws will reverse a High Court ruling that the owners and operators of public Facebook pages, including media outlets and public figures, are legally responsible as “publishers” for defamatory comments by third parties on their pages. The person posting the comments will continue to be liable alongside the social media companies.

Under existing defamation laws, social media companies are already “publishers” of users’ comments on their platforms and former NSW deputy premier John Barilaro is suing Google over allegedly defamatory videos posted by YouTube personality Jordan Shanks.

There can be jurisdictional issues with bringing defamation proceedings against entities that are not located in Australia. The proposal seeks to force multinational platforms with at least 250,000 Australian users to set up a local company or “shopfront”, while giving them a defence against being held liable for the defamatory comments of users if they meet certain conditions.

To escape liability for defamatory comments, the social media companies would need to set up new defamation complaints-handling schemes and reveal the identity of anonymous commenters to complainants, which would enable them to sue that person for defamation.

Crucially, the anonymous commenter must consent to their details being disclosed by the platform. The platform may also delete the post, with the commenter’s consent.

If consent is not given, a person could apply to the Federal Court for a new order requiring the platform to disclose the identity of the anonymous commenter. This appears similar to an existing process in Australia known as preliminary discovery, and it is not yet clear how this would be cheaper or easier than this process.

Professor David Rolph, an expert in defamation law from the University of Sydney, said jurisdiction and enforcement problems have posed an obstacle to social media companies being sued for defamation over the comments of users.

“A reform to require social media companies to have a presence in Australia for the purposes of jurisdiction and enforcement will overcome a significant impediment that plaintiffs have faced,” he said.

It is not clear that companies could be forced to set up Australian entities, notwithstanding an attempt to impose civil penalties on platforms that do not comply.

The proposed changes follow the High Court’s decision in former Northern Territory youth detainee Dylan Voller’s defamation case against media outlets over allegedly defamatory comments posted by third parties on their public Facebook pages.

The High Court ruled the media outlets were legally responsible as “publishers” of those comments, even if they were not aware of them. The case will now proceed to a NSW Supreme Court trial to determine if the comments were in fact defamatory and if the media outlets have any defences.

Professor Rolph said the proposal would “remove moderation responsibilities for all hosts of social media pages in Australia”, which was a “very large policy shift”.

Associate Professor Jason Bosland from Melbourne Law School said that “it seems to me that if a page owner becomes aware of a [defamatory] comment posted on their social media page that they have no obligation to remove it” under the proposed new law.

“This goes further than reversing the Voller decision,” he said.

Michael Douglas, senior lecturer at the University of Western Australia’s Law School, said the Prime Minister pitched the legislation as a way to keep people safe online but the proposed bill would do little to achieve that. “The bill isn’t about safety at all. It is about defamation law.”

But Mr Douglas said “the introduction of a complaints resolution process is a good thing, and a long time coming”.

“It will encourage regular punters who don’t want to spend money on lawyers to solve fights themselves. That part of the legislation could be salvaged while other parts are chucked in the bin.”