Social media platforms need complaints schemes to avoid defamation under Aussie anti-troll Bill

The federal Attorney-General's Department has provided a first look into Australia's anti-trolling social media legislation, which seeks to compel social media platforms into disclosing the personal details of users if they make potentially defamatory comments.

Under the legislation, titled the Social Media (Anti-Trolling) Bill 2021, tech companies would be classified as publishers of any comments posted on a social media platform if they are posted on a page run by an Australian, according to an exposure draft of the Bill. The tech companies referred to in the Bill, and that fall under its ambit, are those that run social media platforms with over 250,000 Australian accounts.

With the Bill seeking to formally classify tech companies as publishers of any comments made on their social media platforms in Australia, these companies could potentially be liable to defamation for these comments. 

To avoid defamation under the Bill, if it were to become law, the federal government wants to make it mandatory for social media platforms to have a complaints scheme in place that allows victims of defamatory comments to both make complaints and request the personal information of the maker of those comments.

Another characteristic in this proposed complaints scheme is that if a complaint is made, social media platforms must notify the accused commenter that they are the subject of a complaint within 72 hours of it being made. If the accused commenter gives consent for their personal information to be provided, social media platforms must then provide that information to complainants and assist them in relation to potentially raising any defamation lawsuits.

This personal information would include contact details such as name, email address, phone number as well as country location data to determine if the user is in Australia.

If social media platforms reasonably believe that the defamation complaint or request does not genuinely relate to the potential institution of a defamation lawsuit, however, they would not be required to provide this information to the complainant, according to Bill's exposure draft.

In addition to requiring social media platforms to allow people to make complaints about comments, the Bill is also seeking to give Australian courts the ability to issue end-user information disclosure orders compelling platforms to disclose this personal information of a commenter that may have defamed another person.

These orders would primarily be used in situations where the commenter does not provide consent for their personal information to be shared, and where the court concludes there are reasonable grounds that the commenter may have defamed the complainant.

Even if there are reasonable grounds, the Bill envisions that courts would still be able to refuse to issue an order if the disclosure of personal information is likely to present a risk to a commenter's safety.

Outside of these exceptions, failure to provide this personal information to alleged victims -- whether through a complaints scheme or complying with a court order -- would make social media platforms liable to defamation, according to the exposure draft.

The Bill also seeks to give the federal attorney-general powers to intervene in any defamation lawsuits that arise from a complaints scheme process or end-user information disclosure orders.

The Bill also seeks to give the federal attorney-general powers to intervene in any defamation lawsuits that arise from a complaints scheme process or end-user information disclosure orders. Of particular note in this bundle of powers is that the Bill would allow the attorney-general to fund litigation for potential victims of defamatory comments if it settles an uncertain area or question of law or affects the rights of a section of the public that are socially or economically disadvantaged.

The proposed laws were announced over the weekend by Australian Prime Minister Scott Morrison, who called for tech companies to be held accountable for the content that resides on their social media platforms.

"Digital platforms, these online companies, must have proper processes to enable the takedown of this content. There needs to be an easy and quick and fast way for people to raise these issues with these platforms and get it taken down," Australian Prime Minister Scott Morrison said on Sunday afternoon.

The public release of the new Bill's exposure draft comes hours after the federal government announced it would commence a parliamentary probe into major technology companies and the "toxic material" that resides on their online platforms.

Communications Minister Paul Fletcher, who announced the inquiry alongside Morrison, said the inquiry was stoked by revelations arising from a Facebook whistleblower in a similar inquiry currently being undertaken in the US.

"This inquiry will give organisations and individuals an opportunity to air their concerns, and for big tech to account for its own conduct," Fletcher said.

Cracking down against big tech has been big on Morrison's agenda as late, with the Prime Minister two months ago saying social media platforms are a "coward's palace" and that they would be viewed as publishers if they are unwilling to identify users that post foul and offensive content.

"Social media has become a coward's palace where people can just go on there, not say who they are, destroy people's lives, and say the most foul and offensive things to people, and do so with impunity," Morrison said at the time.

The federal government in March also passed the Online Safety Act that gave Australia's eSafety Commissioner expanded powers to order the removal of abhorrent violent material from online platforms.

Updated at 4:25pm AEST, 1 December 2021: added more details from the exposure draft.

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