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Big tech decries Australia's anti-trolling Bill for not allowing innocent dissemination defence

Meta finds it unclear as to why the defence would still apply to material posted online by a New Zealand user, but not if it is posted in Australia.
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Written by Campbell Kwan, Journalist on
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Image: Getty Images

Meta, Twitter, and YouTube have all echoed the same concerns about Australia's proposed anti-trolling laws, saying it would place an "unprecedented level" of defamation risk on social media platforms as it seeks to remove the defence of innocent dissemination.

The innocent dissemination defence allows entities, such as social media platforms, to not be liable for defamation if they had no knowledge of the defamatory material, and their failure to detect the material was not due to negligence.

The proposed legislation, Social Media (Anti-Trolling) Bill 2022, is currently being considered by Parliament and, among other things, is seeking to remove the right of social media platforms to use the innocent dissemination defence for potentially defamatory material posted by users based in Australia.

In separate submissions to a Senate committee that is currently reviewing the Bill, the tech giants have flagged the proposed removal of the defence as being unnecessary for protecting Australians online.

"The removal of the defence of innocent dissemination for providers of social media services exposes social media providers to an unprecedented level of defamation risk while being wholly unnecessary to achieve the Bill's objectives," YouTube said.

Meta, meanwhile, said the Bill is not clear in its application as it appears social media providers would only lose the innocent dissemination defence in instances where the potential defamatory material was posted by a user located in Australia.

For example, if defamatory material was posted by a user based in New Zealand, the innocent dissemination would still apply, the company explained.

"It is not clear why a different liability regime should apply to a social media provider, depending on where the poster is located. Especially because defamation law is focussed on the place of publication and not the location of the author or originator of the content.," Meta wrote in its submission.

Following a similar theme, all three tech giants submitted that the personal information collection requirements of the Bill place an onerous obligations on social media providers, despite these companies sometimes being unable to verify certain data as personal information.

The anti-trolling Bill, if passed, would require social media platforms to provide personal information of users who post potentially defamatory material to a complainant. This information includes the user's name, email address, phone number, as well as country location data to determine if the user is in Australia. 

If a social media platform does not have this capability, they would be liable to defamation under the proposed laws.

Twitter said this requirement would put social media providers between a rock and a hard place as while the Bill does not require platforms to collect the personal information of users, it also effectively removes any avenue for these providers to access a defence against defamation claims unless it does so.

Meta shared a similar sentiment, but added the anti-trolling laws could also result in social media providers being targeted due to being "more attractive defendants".

"As currently drafted, and contrary to the objective of focusing the dispute between 'originator and victim', the legislation incentivises complainants to file proceedings against social media service providers rather than the authors or originators," Meta wrote in its submission.

On the privacy front, Twitter warned the personal information collection requirement could also effectively deny Australians the ability to maintain their privacy through anonymous or pseudonymous accounts, causing other unintended consequences.

"The removal of anonymity will have a regulatory and social cost well beyond the problem the government is seeking to solve, and it needs to be balanced against legitimate opportunities for people to exchange information, ideas, and express their opinions and beliefs," Twitter wrote in its submission.

Australia's eSafety commissioner has publicly said that some users have valid reasons for anonymity and identity shielding such as to protect users from unwanted contact. For child social media users, the commissioner encourages them only to use their given name, a nickname, or an avatar online instead of a full real name so as to make it more difficult for sexual predators and scammers to interact with them.

The commissioner has also noted, however, that anonymity can make it difficult to hold people responsible for what they say and do online.

The Bill's current personal information disclosure requirements also go beyond what is necessary to commence legal proceedings, according to YouTube.

"The [Bill's] Explanatory Memorandum suggests that the current definition of 'relevant contact details' is intended to capture the minimum information necessary to effect substituted service. However, it is well-established that a court may make an order for substituted service to an email address," YouTube said.

Social media companies have not been alone in their concerns about the proposed anti-trolling laws, with the eSafety commissioner telling the committee it is currently unclear whether social media platforms are even capable of collecting and holding large amounts of personal information in a private and secure manner.

The commissioner explained a person's identity or contact details cannot always be adequately established through information held by a social media platform as this information is generally only available through querying restricted databases or seeking further end-user information from elsewhere.

The anti-trolling legislation review is set to wrap up before May as Liberal Senator and Attorney-General Michaelia Cash previously said it is among her party's primary items, alongside the federal social media probe, that it wants to get pushed out before this year's federal election.

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