The Social Media (Anti-Trolling) Bill 2022 creates a novel framework to allow Australians to respond to defamatory content posted on social media.
The Bill will address the issues raised by the High Court’s decision in Fairfax Media Publications v Voller  HCA 27 (Voller), which made clear that individuals and organisations with social media pages on which third party material can be posted may be ‘publishers’ of that material for the purposes of defamation law.
The Bill will also provide new mechanisms for Australians to ascertain whether potentially defamatory material on a page of a social media service was posted in Australia and, if so, to obtain the relevant contact details of the poster. This will empower Australians to institute defamation proceedings in relation to the poster.
In particular, the Bill will:
- deem a person who administers or maintains a social media page not to be a publisher of third-party material and thereby be immune from potential liability under defamation law
- deem the social media service provider to be the publisher of material published on their service that is posted in Australia for the purposes of defamation law
- create a conditional defence for social media service providers in defamation proceedings that relate to material on their service that is posted in Australia if the provider:
- has a complaints scheme that meets certain prescribed requirements
- if a complaint is made—complies with the scheme
- has a nominated entity in Australia
- if requested under the complaints scheme—provides the relevant contact details of the person who posted the material said to be defamatory, to assist prospective applicants to identify and commence proceedings against the poster, and
- if ordered to do so by a court pursuant to an end-user information disclosure order (EIDO)—provides the relevant contact details of the person who posted the material said to be defamatory, to assist prospective applicants to identify and commence proceedings against the poster
- empower courts to issue EIDOs, which require providers of social media services to give the applicant relevant contact details and country location data in certain circumstances
- require social media companies to have a nominated entity incorporated in Australia that will be able to discharge key obligations under the Bill, and
- enable the Attorney-General to intervene in defamation proceedings on behalf of the Commonwealth, in certain circumstances, and authorise a grant of legal assistance.
Australians can be the subject of defamatory material posted on social media. The challenges presented by defamation over social media are particularly acute, given the speed at which such material can spread and the limited scope to contain the spread of a defamatory post once it has been published on a social media network. Where such material is posted anonymously, complainants may have limited ability to identify the poster, and the capacity to seek vindication by commencing defamation proceedings may be limited.
Outline of the Bill
Part 1 of the Bill deals with introductory matters including commencement, definitions, when material is posted in Australia and the Bill’s interaction with the general law of the tort of defamation, and state and territory defamation laws. Part 1 clarifies that the Bill is intended to operate in conjunction with the current (and future) corpus of defamation law from all of its sources, except to the extent modified by the Bill.
Part 2 of the Bill provides that an Australian person who maintains or administers a page of a social media service is taken to not be a publisher of third-party material posted on the page for the purposes of the general law of the tort of defamation, and thereby cannot be liable in defamation for the posting of that material. Part 2 of the Bill also clarifies that, if material is posted in Australia, social media service providers are deemed publishers of the material posted on their service for the purposes of the general law of the tort of defamation. This applies both to material posted by account holders on a page which they maintain or administer (page owners), and to material posted on a page which another individual administers or maintains. Part 2 of the Bill also provides a conditional defence for social media service providers in defamation proceedings that relate to material posted on their platform, provided the material is posted in Australia. Social media service providers will benefit from the defence where they meet conditions specified in the Bill. Part 2 also sets out the prescribed requirements for the complaints scheme.
Part 3 of the Bill establishes a framework for EIDOs. EIDOs are a new form of court order which may be obtained from an Australian court that has jurisdiction to hear a substantive defamation proceeding, and from Division 2 of the Federal Circuit and Family Court of Australia. EIDOs will allow an applicant to obtain country location data in relation to material posted on a social media service and, if the material is posted in Australia, obtain the poster’s relevant contact details. Part 3 clarifies that the jurisdiction to grant EIDOs does not otherwise affect the jurisdiction of the Federal Circuit and Family Court of Australia to hear and determine substantive defamation cases.
Part 4 of the Bill requires a social media service provider that is a body corporate incorporated in a foreign country and meets specified thresholds to establish an Australian incorporated entity, known as the ‘nominated entity’, that is an agent of the provider and has an office in Australia. The nominated entity is required to have access to country location data and relevant contact details of posters in relation to material posted in Australia, and has authority to receive complaints and requests under the complaints scheme. The obligation to establish a nominated entity is enforceable by a civil penalty provision, and establishing a nominated entity is also a prerequisite for accessing the conditional defence under Part 2 of the Bill.
Part 5 allows the Attorney-General to intervene in matters arising under the Bill, or in defamation proceedings to which a social media service provider is party, where the proceedings are before a court exercising Federal jurisdiction. Where the Attorney-General chooses to intervene the Commonwealth is taken to be a party to the proceeding, and the court may award costs orders against the Commonwealth as it sees fit. Under this Part, the Attorney-General may also authorise payment to the applicant by the Commonwealth for costs reasonably incurred in relation to the proceeding.
The proposed legislation would include provisions enabling the Commonwealth to intervene in matters in the public interest and to support applicants to meet the costs of legal proceedings when the Commonwealth intervenes. Any request for legal assistance would be considered in accordance with guidelines made by the Attorney-General. There may also be resource implications for the federal courts. Funding for these measures would be sought through the 2022-23 MYEFO context.
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