Some of Australia’s most esteemed defamation lawyers have called on the federal government to scrap its controversial “anti-trolling” bill, saying it has “significant defects” and would likely leave victims of online abuse without any recourse.
A Senate inquiry is currently scrutinising the Coalition’s Anti-Trolling Bill, which creates a “new novel framework to allow Australians to respond to defamatory content posted on social media”.
The government said the reforms would enable those who believe they have been defamed online to apply to have the relevant platform identify the poster of this material, and would reverse the High Court’s Voller defamation ruling.
But in a submission to the inquiry, a number of high-profile defamation lawyers slammed the bill, saying it is unnecessary, will create confusion and will leave victims of defamatory content worse off than they currently are.
The submission was authored by Sue Chrysanthou, who has represented former Industry minister Christian Porter and Greens Senator Sarah Hanson-Young; Rebekah Giles, who has also represented Senator Hanson-Young and Mr Porter, as well as Brittany Higgins; and Richard Potter, who acted against Defence minister Peter Dutton in a recent defamation case. The other writers of the submission are Patrick Goerge, and Kieran Smark.
The six lawyers argued that the bill has “significant defects” and should not proceed in its current form, and that it does not match the government’s comments about it.
“The draft bears no relationship to the objectives announced by the government in October 2021 and, in fact, does the opposite by offering providers immunity – not accountability,” the lawyers said in the submission.
“It is not possible to see how legislation intended to address the problem of ‘trolling’ could be regarded as addressing that destructive problem, when it would likely leave many victims of such conduct without any remedy, including the most important remedy of having the material in question taken down from the social media service.”
In the submission, the lawyers are highly critical of the immunity from liability that the reforms will hand to administrations of social media pages for defamatory content posted on their pages.
“Giving immunity to media organisations and other businesses for carrying defamatory comments, no matter how defamatory, and even once they had been put on notice of the defamatory character of the comments in question,” they said.
“Whatever the rationale for protecting not-for-profit, small-scale page owners, there seems no reason to immunise large corporations who publish defamatory material as part of their overall business model.”
The bill also hands immunity from liability to social media companies if they have adequate complaints schemes in place. This requires the company to provide a complainant with the country location data of a commenter within 72 hours, but doesn’t force the release of contact information unless the commenter consents to this.
This is “ineffective” and a court order will be needed to obtain more useful information, but this still may not be enough to identify the anonymous poster, the lawyers argued.
“There is no requirement in the bill that providers obtain genuine details of a commentator’s identity before allowing comments to be posted or liability for failure to do so,” they said.
Even if the commenter is identified and proceedings are launched, these may be protracted, and still may not result in the defamatory content being removed.
“Applicants who are the subject of a defamatory post on social media may be left in the invidious position of having no effective recourse against the provider, the page owner or the commentator,” the submission said.
“Most significantly, highly defamatory comments may remain online, no matter what steps the applicant takes, and despite the power of the relevant provider to remove them. That is an unacceptable result.”
Social media firms should not be handed immunity from liability if the commentator cannot be identified or refuses to remove the post, the lawyers argued.
“Categorical immunity to page owners or defence to providers is in this context misconceived and incongruous with the public statements of the Prime Minister….which focused on the liability of providers,” they said.
“It inescapably follows that the combined effect of the grant of immunity to page owners and of the defence to providers is unjust and oppressively weighted against applicants.”
While the government has said the bill also serves to reverse the High Court’s Voller defamation ruling, the defamation lawyers argue this did not amount to a change in law, and the legislative changes are unnecessary.
“No legislative change is needed to deal with the decision given it effectively has no impact on the law. Some commentators have mischievously caused alarm about the Voller decision and, it seems, persuaded the Commonwealth government to propose a flawed draft bill to overcome their unjustified concerns about the settled law applied by the High Court,” the submission said.
The so-called anti-trolling bill has been widely panned throughout the inquiry process by a range of submitters and witnesses to public hearings.
Last week the eSafety Commissioner said the bill conflates several different issues, has created confusion and oversimplifies important legal matters.
The Senate committee is due to report back on the bill on 24 March.
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“Whatever the rationale for protecting not-for-profit, small-scale page owners, there seems no reason to immunise large corporations who publish defamatory material as part of their overall business model”.