Social media companies could be forced to reveal the identities of anonymous users as part of the government’s plan to clamp down on internet trolls. Attwood Marshall Lawyers, Commercial Litigation Associate, Georgia Taylor, discusses the implications these reforms will have on social media companies in relation to liability and defamation.
Australian Prime Minister Scott Morrison is all set to introduce a new anti-troll Bill that would force online social media platforms like Facebook and Twitter to reveal the identities of anonymous users, to crack down on online trolling.
The draft legislation is reported to require social media companies to collect the details of all users and allow the Courts to force the social media firms to hand over the identities of users to aid defamation cases.
The legislation has been released in draft form and is expected to be introduced in Parliament early 2022. The proposed legislation is part of a larger effort to overhaul Australia’s defamation laws and target anonymous online trolling.
What prompted the change
Prime Minister Scott Morrison said the rules that exist in the real world should exist online too.
“Social media can too often be a cowards’ palace, where the anonymous can bully, harass and ruin lives without consequence,” the Prime Minister said.
“We would not accept these faceless attacks in a school, at home, in the office, or on the street. And we must not stand for it online, on our devices and in our homes.”
“We cannot allow social media platforms to provide a shield for anonymous trolls to destroy reputations and lives. We cannot allow social media platforms to take no responsibility for the content on their platforms. They cannot enable it, disseminate it, and wash their hands of it. This has to stop.”
“These will be some of the strongest powers to tackle online trolls in the world.”
“Anonymous trolls are on notice, you will be named and held to account for what you say. Big tech companies are on notice, remove the shield of anonymity or be held to account for what you publish.
A changing landscape
The draft legislation comes at a necessary time for the changing defamation landscape in the social media age. With all states (slowly) introducing new uniform legislation, the Courts are still working with existing and frankly outdated Acts which do little to assist with the identification of a defendant.
In the recent decision of Fairfax Media Publications Pty Ltd v Voller  HCA 27, the High Court found that the media outlets were the publishers of third-party comments on their social media pages. Meaning, that as the ‘publishers’ for the purposes of the defamation legislation, they were liable for the third-party defamatory comments and any damages suffered to the defamed.
In this case, former Northern Territory youth detainee Dylan Voller launched legal action against media companies, including The Australian and Sky News, over comments made by Facebook users on their pages.
Mr Voller featured in an ABC Four Corners program in 2016 on the Don Dale Youth Detention Centre, which showed disturbing images of him being shackled to his chair with a spit hood over his head.
In September, the High Court dismissed an appeal by the media companies that argued they were not the publishers of the comments on their pages, as found by the lower Courts in the original litigation.
This meant Mr Voller could continue with his defamation action in lower courts and claim damages from the media giants, rather than the third parties which posted the comments which were alleged by Mr Voller to be defamatory. Any award for damages is subject to defences that the media company may have, but they were deemed the appropriate defendant.
Under the new legislation
It is proposed that media companies could avoid liability, if they comply with the proposed disclosure and complaints requirements set out under the new legislation.
To move the onus onto social media companies, the legislation sets out that each company should have a complaints process, where users can report and request removal of alleged defamatory material. The government says that this procedure would be put in place, because too often people just want the offending post taken down and to move on. The risk for litigation if a post is removed is significantly reduced.
Should a person wish to take further action, a person can ask a social media company to release the identity of the original poster. It is proposed that should the persons identity be requested, that the social media company would ask for consent of the original poster to disclose their personal information to the person whom the post is about.
Of course, it is unlikely that a troll will allow the release of their identity, therefore if that person does not consent to their identity being released, then a new Court framework will be built to allow prospective defamation litigants to seek pre-litigation orders from a social media company, to disclose the details of the troll to commence litigation.
The proposed legislation has been roundly criticised by experienced lawyers and Judges in this area of law. Legal experts have questioned why a new order is needed, and how this would make it quicker or cheaper to sue for defamation. The order would only be available in the Federal Court, even though defamation cases are also brought in the District and Supreme Courts. One NSW Judge has described the proposed laws as a ‘recipe for disaster’ and has questioned whether the laws will stop anonymous insults or vulgar abuse, arguing such statements are not in themselves defamatory.
Federal Court Justice Michael Lee, a defamation expert and someone regularly hearing these cases stated:
“Defamation on social media was a “big issue” in the Federal Court, and it presented a number of challenges. Well-heeled people had already used the preliminary discovery process to help them launch defamation proceedings over online posts and there had been a rash of such applications in the Federal Court”.
Justice Lee also raised concerns about whether the Federal Court was the best forum for defamation cases, given the costs involved and the fact, for many people, action in this Court would be well beyond their means.
It would seem the proposed legislation of the Federal Coalition government may well be a pre-election populist push which will end up in the Senate rubbish bin of rejected legislation.
Defamation and the consequences
Defamation is the publication of material which harms a person’s reputation. Under defamation law, this can include written material, pictures, or spoken statements, otherwise defined as publications.
To succeed in an action in defamation, the plaintiff needs to prove that the material published by the defendant contained one or more defamatory “imputations”. Imputation is a negative claim about a person or their behaviour. Defamatory material can potentially be any kind of communication that has been published in some way. This includes social media posts, comments, and replies to other comments.
To prove defamation five key elements must be at play:
- A statement of fact.
- A published statement.
- The statement caused injury.
- The statement must be false.
- The statement is not privileged.
In every State and Territory, the limitation period for an action in defamation claims is one year following the publication of the defamatory material. If a person fails to start court proceedings within this period, they will not be able to bring an action in defamation. This is one of the reasons why it is imperative to obtain legal advice from a reputable defamation lawyer at the earliest opportunity.
The timing of the ‘publication’ however, has been the subject of significant debate in the Courts. It is always prudent however to seek legal advice as soon as you see the publication and have evidence of the published material with a timestamped photograph or screenshot.
Defamation and anti-defamation laws are civil, not criminal, matters. When it comes to defamation damages, the amount is not fixed and depends on the circumstances of the case. Where the publication of defamatory material has caused significant harm to a plaintiff, such as financial loss or personal hardship, a larger award is more likely to be granted.
No matter what the likely damages are, Court proceedings usually involve significant costs, so any action in defamation should be taken very seriously and advice should be sought before contemplating issuing proceedings. There are also vital pre-litigation steps to undertake before a party is eligible to commence proceedings for defamation.
Defences to defamation
The defences to defamation are notoriously difficult to establish. While the complainant need not prove the material is false, the defendant can escape liability by showing that it’s true.
In the Christian Porter and ABC defamation case, ABC would have needed to prove matters from more than 30 years ago raised in a letter by a woman who has since passed away.
Moreover, the defendant would have had to prove the truth of the “defamatory stings” — the discrediting imputations that an ordinary, reasonable reader would take from the published material, regardless of whether those were the intended meanings.
The case didn’t play out as Mr Porter withdrew his defamation case against the ABC in May 2021.
There are a range of defences available to a claim for defamation. These include:
- justification – the imputations in the published material are substantially true
- contextual truth – the published material contains defamatory imputations, some true and some not, but the untrue imputations do no further harm to the person’s reputation than the true imputations
- absolute privilege – the publication was made in parliament or a court or tribunal
- public documents – the material was published in a public document, such as a court judgment, or published honestly to inform the public
- fair reporting on proceedings of public concern – the published material was contained in a public proceeding such as in a court or local government meeting
- qualified privilege – the published material was given to someone who has an interest in having that information on a particular subject, the material was published in the provision of the information, and the publisher’s conduct was reasonable in the circumstances (for example, the giving of information to a police officer investigating a crime)
- scientific or academic peer review – the material was published in a scientific or academic journal and the material was subject to an independent review of its scientific or academic merit by an expert on the subject
- honest opinion – the publication was an opinion about an issue of public interest and was based on material which is substantially true
- innocent dissemination – the publisher was acting for another person and did not know the material was defamatory.
Defamation is a complex legal matter. If you think you have a claim in defamation or want to defend a claim, you should obtain legal advice as soon as possible.
Attwood Marshall Lawyers – helping you navigate the complexities of defamation
Our experienced defamation lawyers can assist in all defamation matters to help you protect your personal and professional reputation. If something has been written, said, or published about you which you believe has damaged your reputation, contact our lawyers to find out where you stand.
We can be contacted on our 24/7 phone line on 1800 621 071, or by contacting Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245 or email firstname.lastname@example.org
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