'Anti-trolling' Bill will actually protect the powerful from critique

The Social Media (Anti-Trolling) Bill 2022 is a deeply concerning development because it is really about making reforms to defamation laws in ways that could particularly favour politicians and others with sufficient resources to pursue defamation remedies, and not about reducing trolling or the damage caused by trolling. 

Despite its name, this bill won't stop trolls

This bill has been presented to the public as focussed on fighting online abuse and harassment, as its name suggests:

'In a world-leading move, the Morrison Government will introduce new court powers to force global social media giants to unmask anonymous online trolls and better protect Australians online,' according to the government media release

But academics and the Attorney General's department agree that the bill is really about "only defamation". The Attorney-Generals’ Department defamation taskforce assistant secretary Michael Johnson went as far as to say “I can be clear that the bill is about defamation and it is not intended to address broader types of online harm”.  The government's own e-Safety Commissioner, Julie Inman Grant, noted in her submission to a recent Senate inquiry into the bill that 'there is a risk of public confusion over what the Bill seeks to achieve if its present name is preserved', pointing out that the bill actually addresses defamation, rather than trolling. 

Meanwhile, ANU Research School of Computer Science’s Dr Vanessa Teague told Sydney Criminal Lawyers that "most online abuse isn’t defamatory, so it will be completely unaffected by this legislation" and the bill "seems extremely unlikely to have much impact on online abuse of ordinary people".

What does the bill actually do?

The bill:

  • Overturns the High Court decision in Fairfax v Voller, which held that the owner of a social media page may be responsible for comments published on that page that are defamatory (as well as the person who made the comment). The effect is to remove potentially effective remedies that a defamation victim may have.
  • Establishes a complaints system so that people who say they've been defamed can ask that the person defaming them be identified (but this system will be completely ineffective, as that person can refuse to be identified). 
  • Allows the Court to order a social media organisation to disclose the name of an anonymous person if they are satisfied that there are reasonable grounds for the applicant to believe that there may be a right to relief in defamation proceedings. However accessing this remedy will be expensive, beyond the reach of ordinary people.
  • Requires a foreign social media company with more than 250,000 Australian users to ensure that there is a body corporate in Australia or an agent in Australia that has the contact details of the end user who posts comments. This is problematic. There can be legitimate reasons for social media posts to be made anonymously (for
    example, on politically sensitive subjects). Only a minority of social media posts are defamatory or problematic. Requiring the keeping of personal information for all social media posts is inconsistent with the right to privacy.

So what's the problem?

Trolling is a problem and there should be effective ways of preventing it. Social media companies should provide effective mechanisms for complaints to be made, and should act
on complaints to remove offensive posts and, for repeat offenders (such as Donald Trump), suspend or ban them from the platform. There should be an independent government agency to ensure that social media companies are acting in accordance with community expectations about online safety and anti-social posting. Most importantly, remedies should be quick and cheap. Harnessing defamation laws is not the way to go. 

Negative impacts

Not only does this bill not offer a solution to trolling, it creates a number of issues:

  • It invades online users' privacy
  • It could place whistleblowers at risk
  • It could negatively impact women, children, and those from a lower socioeconomic background
  • By strengthening our already too strong defamation laws, it threatens free speech 

How has the bill been received?

Submissions to the Senate Inquiry were broadly critical - here's a quick roundup, with links to the relevant submissions:

  • Office of the Australian Information Commissioner (OAIC) recommends seeking less privacy-intrusive options
    Recommendation 1- Give further consideration to the privacy impacts on all Australian users of social media services and whether they are reasonable and necessary to achieve the objectives of the Bill, or whether less privacy-intrusive options could achieve the same objective.

    The OAIC also raised the issue of whistleblowers, quoting a recent UK Joint Committee report on the UK's draft Online Safety Bill, that said:
    “...anonymity and pseudonymity are crucial to online safety for marginalised groups, for whistleblowers, and for victims of domestic abuse and other forms of offline violence. Anonymity and pseudonymity are not the problem and ending them would not be a proportionate response.”

  • eSafetyCommissioner notes the potential for low-income households to be impacted
    "If a person is unwilling or unable to furnish both an Australian mobile phone number and email address, they may be denied access to widely used services such as Facebook if those services determine that the cost of a blanket exclusion for unverified users is lower than the cost of their potential defamation liability. The practical effect may be to miss out on opportunities to stay connected with family and friends, keep up to date with essential information (such as public health messaging), and find support online (for example, support services offered by Kids Helpline and Lifeline). This limit to access would likely disproportionately affect lower-income households."

    eSafetyCommissioner also raises the risk of doxing and questions the ability to protect the commentator's safety:
    “eSafety’s welcome the draft Bill’s provision that a court may refuse to make an order requiring the disclosure of a commenter’s contact details if satisfied that this is likely to present a risk to the commenter’s safety. However, we query how a court is to obtain the factual information it would need to make this assessment – particularly if the commenter has not been involved in the proceedings.
    In most cases, privacy and confidentiality considerations prevent eSafety from sharing any BSI (basic subscriber information) we may obtain through the course of an investigation with others, including the relevant complainant. We believe this is an important protection against the risk of retaliation.
    While BSI from social media services on its own is often insufficient to identify a specific person with certainty (as set out above), this data can be used for harmful purposes, including doxing."

  • Women's Services Network (WESNET) suggested that the legislation could make women and children less, not more, safe:
    'This legislation, far from improving women and children’s safety, may in fact impact adversely on women and children. It is possible that a victim-survivor’s anonymous comments on social media - which are often surveilled and monitored by abusers - could become the subject of defamation proceedings. These proceedings would not necessarily take into account a history of family violence perpetrated by the plaintiff.'

  • Digital rights watch commented on the anti-democratic effect of these changes
     “[The bill] risks exacerbating existing power imbalances in Australia’s defamation system, which may have detrimental impacts upon the quality of political speech and valid criticism of those in positions of power—a key element of a thriving liberal democracy.”