Legal expert warns of ‘unintended consequence’ of doxxing laws

Constitutional law expert Anne Twomey warns doxxing reforms could have unintended consequences, amid push to outlaw the form of cyber abuse.

University of Sydney constitutional law expert Anne Twomey.

Constitutional law expert Anne Twomey has warned that criminalising doxxing could have unintended consequences, including allowing online trolls to act with impunity and protecting politicians from having incriminating messages leaked.

Professor Twomey said the ­Albanese government’s push to outlaw doxxing – the malicious release of a person’s information without their consent – by possibly introducing a new statutory tort for serious invasions of privacy, could capture whistleblowers and journalists.

The warning comes as the ­Australia/Israel & Jewish Affairs Council calls for the creation of a strict liability civil offence and a criminal charge for “aggravated” cases of doxxing, urging the federal government to crack down on the “pernicious contemporary phenomenon”.

Attorney-General Mark Dreyfus began consulting on a possible framework to criminalise the form of online abuse following the deliberate leaking of 600 Jewish ­creatives’ details, flagging that legislation could be introduced by mid-year.

Professor Twomey said while doxxing was “loathsome behaviour”, the government should be “cautious and considered” in its response, including the risk that online trolls could be protected from exposure under the legislation if it criminalised exposing someone’s identity.

“Should they be given extra statutory protection and security in their maintenance of their anonymity by such a law?” she said in a submission on the ­reforms.

“I would be worried if the effect of such a law was to protect anonymous abusers on the internet and effectively encourage them to greater extremes of abuse, due to their confidence that their identity could not lawfully be publicly revealed.”

Attorney-General Mark Dreyfus. Picture: David Crosling

In her video lecture series Constitutional Clarion, she also raised concerns that WhatsApp mess­ages between MPs could be protected under anti-doxxing legis­lation, meaning that journalists could face legal consequences for publishing leaked conversations to back up their reporting.

“This makes me wonder whether a secondary aim of any law that prohibited doxxing would actually be the protection of ­politicians from ongoing scandals about these matters which are fuelled and substantiated by ­doxxed messages that end up ­before corruption commissions quite often,” Professor Twomey said.

She also criticised the consultation process for only seeking answers in response to “loaded” questions about doxxing, rather than fully formed analysis.

AIJAC has called for a “duty of care” to be imposed on social media giants, requiring digital platforms to take down content that constitutes doxxing or cyber-bullying.

The prominent Jewish group said in its submission on the proposed reforms, written by AIJAC executive director Colin Rubenstein, that a compensation scheme should be set up for victims of doxxing, which would be funded by perpetrators and platforms that failed to protect users.

“There is deep concern in the Australian Jewish community at the failures of the Australian Human Rights Commission, the eSafety Commissioner and of state and territory police forces to protect or support victims within the community,” the submission said.

“Or to take enforcement actions against perpetrators of doxxing, cyber-bullying, privacy offences and incitement to racial hatred directed against members of the community, in circumstances where there is clear evidence of illegal actions under current laws.”

A spokesman for Mr Dreyfus said the government had “no higher priority than the safety of the community”, adding it was considering the feedback to introduce legislation on the issue.