Australian Government Proposes To Shift Publication Liability From Social Media Page Owners To Providers With The Draft Social Media (Anti-Trolling) Bill 2021.

In September 2021, the High Court in Fairfax Media Publications v Voller [2021] HCA 27 (Voller) determined that the owners of public Facebook pages were the publishers of defamatory comments made by third parties on those pages, from the moment the comments were posted and regardless of whether the page owners were aware of the comments.

The draft Social Media (Anti-Troll) Bill 2021 (Bill) arrives as the Australian Government’s urgent response to the Voller decision.  Public consultation on the draft Bill will close on 21 January 2022.

What does the draft Bill do?

The draft Bill, which has been described as both defamation reform and an anti-bullying mechanism:

• Overrides the common law position that social media page owners in Australia are publishers of defamatory third party comments on those pages;
• Prescribes that providers are publishers of comments on social media pages provided those comments are “made in Australia”;
• Prescribes only a very limited defence for providers in relation to publication of such comments which is based on the provider both having in place, and following, a rigorous defamation complaint handling scheme as set out in s 16 of the draft Bill; and
• Brings social media defamation complainants into direct contact with the end users (commenters) who post defamatory comments, in an attempt to regulate the artificial digital environment and instead reflect the ‘real world’.

The draft Bill creates two pathways for providers to disclose a commenter’s contact details to a complainant without exposing the provider to civil liability: via a consent-based complaint scheme administered by the provider; and/or through use of a court order requiring disclosure.

As noted above, a key feature of the draft Bill is that it shifts liability as a “publisher” of defamatory comments made on social media pages by third parties away from Australian page owners in all circumstances.  Under the draft Bill, a provider is deemed to be the publisher of any comment posted on a social media page, provided that the comment is “made in Australia”.  The liability of providers for defamatory comments which are not made in Australia will continue to be determined by common law principles.

The draft Bill provides that:

• a social media end-user who “maintains or administers” a social media “page” is taken not to be a publisher of a comment made by another end-user on that page;[1] and
• in a case where the comment was made in Australia, the provider is taken to be a publisher of the comment.[2]

The term “social media service” is defined by reference to the Online Safety Act 2021 (Cth), being an “electronic service that is a social media service” that enables “online social interaction between 2 or more end-users” and “allows end users to post material.”[3]

“Provider” of a social media service has a meaning affected by s 27, which excludes persons supplying carriage services that enable material to be accessed or delivered and persons providing a billing or fee collection service in relation to a social media service.

Sections 6 and 9 of the draft Bill provides that a comment will be “made in Australia,” if the commenter appears to have been located in Australia when the comment was posted according to the geolocation technology deployed by the provider.

Other salient features of the draft Bill include:

1. A very limited defence for providers as publishers of comments made in Australia.[4]
2. A detailed complaints scheme in s 16 which providers are required to establish, and follow, to avail themselves of the limited defence for comments made in Australia.[5]
3. Removing the potential availability of an ‘innocent dissemination’ defence for providers in defamation proceedings concerning publication of comments made in Australia which are posted on social media.[6]
4. Prescribing that s 235 of the Online Safety Act 2021 (Cth) does not apply in such proceedings.[7]
5. A requirement for providers to nominate an Australian entity (Nominated Entity) which is to have access to contact details and location data of end-users of that social media service.[8]
6. Empowering courts to make ‘disclosure orders’ requiring a provider or its Nominated Entity to disclose a commenter’s details.[9]
7. The ability of the Attorney General to intervene in any resulting defamation proceeding, including to authorise the Commonwealth to pay the complainant’s costs if the proceedings concern an uncertain area of law, or assist a socially or economically disadvantaged section of the public.[10]

How does this work?

The form of the complaints process specifically required under s 16 of the Bill, along with the availability of the s 15 defence, is summarised in the following flowchart.

Complaints Scheme Flowchart

If these laws are passed, it is critical that providers establish and follow a scheme in accordance with s 16.  The draft Bill creates only a very limited defence which will be available to providers if:

1. The comment/s in question was/were made in Australia;
2. The provider has a complaints scheme which adheres to the Bill’s requirements in s 16;
3. The provider has complied with the complaints procedure in the handling of a complaint, if the complaints scheme is utilised by the complainant; and
4. Any of the following apply:
   1. The complainant has not requested the provider to disclose the relevant contact details of the commenter under the complaints scheme; or
   2. The complainant has requested the provider to disclose the relevant contact details of the commenter and the provider has disclosed the relevant contact details; or
   3. The Nominated Entity of the social media service provider has complied with any end-user information disclosure order made against them.

This specific defence is also not available to social media service providers where:

1. The commenter is the provider itself;
2. The commenter is a related body corporate of the provider;
3. The commenter is the Nominated Entity of the provider;
4. The commenter does not provide consent to disclose the commenter’s contact details to the complainant; or
5. The provider does not have the commenter’s contact details.

In the context of the Bill, “contact details” are defined to mean the name of the commenter (or the name by which they are usually known), an email address, and a phone number.  Whether this requirement will result in changes to social media services, such as social providers requiring identification verification for account holders (and the ramifications of this in terms of privacy) remains to be seen. Given the Bill’s emphasis on enabling a complainant to contact a commenter, the incentive this creates for commenters to provide fraudulent details should also be considered.

The Bill also proposes to allow complainants who are dissatisfied with the outcome of the complaints process or who are otherwise unable to obtain the contact details of the commenter to seek relief from the Courts by way of a new mechanism titled an “End-user information disclosure order.”[11]  It should be noted that in order for a complainant to obtain such an order from the Court, it is not a pre-requisite for a complainant to follow a provider’s complaints scheme.  Complainants can elect to approach Courts without engaging with a provider’s complaint scheme.

Considerations 

A major feature of the draft Bill is that it removes the availability of the innocent dissemination defence for providers in any defamation proceeding relating to social media comments which are made in Australia.  At common law, the innocent dissemination defence is available to a publisher of defamatory material where the publisher is a secondary or subordinate distributor of that material and did not know nor ought to reasonably have known that the material was defamatory.

Instead, the draft Bill introduces a conditional defence for providers in respect of comments made in Australia.  That defence is only available where the provider:

• has a complaints scheme that meets prescribed requirements, and complies with the scheme; and
• provides information to assist complainants to identify and commence proceedings against a commenter.[12]

The intention of the Bill appears to be to incentivise the creation of a “best practice” procedure for providers that connects complainants with commenters.  Rather than just obliging a provider to have a complaints scheme, the draft Bill ostensibly rewards providers for establishing, and following, such a procedure through the availability of a defence.  That defence is limited and, in some circumstances, the provider will not have a defence even if it follows the process.

In particular, where a complainant has requested a commenter’s contact details directly from the provider, the defence is only available if the provider actually provides those details.[13] There is a requirement in s 16 that a provider must obtain consent from a commenter before the service provider passes the commenter’s details on to the complainant.[14] It should be noted that there does not appear to be a defence in the draft Bill for providers who are unable to provide a commenter’s contact details to a complainant, either because they did not obtain a commenter’s consent, or because they do not have them.

As the explanatory notes to the Bill explicitly mention, the priority is that a complainant still has a defendant available in the provider if proceedings cannot be commenced against the commenter because the contact details are not available.[15]

The privacy and safety implications for social media service providers who pass on the details of natural persons, whilst authorised to do so and protected from civil liability for doing so under ss 16(4) and (5) of the draft Bill, are also ambiguous. The Bill requires a provider to have a “reasonable belief” that a complainant’s request for contact details “genuinely relate[s] to the potential institution by the complainant of a defamation proceeding.”[16]

The draft Bill proposes significant changes to defamation liability for social media comments made in Australia.  An opportunity exists for all interested stakeholders to provide comments on the draft Bill until 21 January 2022.  Following the consultation period, the progress of the Bill into Parliament and ultimately law should be monitored closely by media companies and digital platforms alike.

[1] Section 14(1)(c).  “Page” of a social media service is defined in s 6 as (a) a page (however described) of the service; or (b) any other distinct part of the service.

[2] Section 14(1)(d).

[3] Online Safety Act 2021 (Cth), s 13(1)(a).

[4] Section 15.

[5] Section 16.

[6] Section 14(3)(f).

[7] Section 14(3)(e).

[8] Section 20.

[9] Section 18.

[10] Section 23.

[11] Section 18.

[12] Section 15.

[13] Section 15(2)(d)(ii).

[14] Section 16(1)(g)(iii).

[15] https://www.ag.gov.au/legal-system/publications/detailed-explanatory-notes-social-media-anti-trolling-bill-2021, Page 7-8.

[16] Section 16(h).