Right to Remain Anonymous: The uncertain implications of social media anti-trolling reform
By Katie Walker
The rapid advent of social media has fundamentally changed the nature of communication, allowing users to share, interact, and comment their unfiltered opinions on any area. As such, defamation has become an area of increasing prominence in terms of media interest. Social networking spaces often proliferate viral content without the ability to filter potentially defamatory comments and posts. Anonymity is a key feature contributing to online toxicity, as everyday users can comment and post material without means of adequate identification.
In light of the recent decision of the High Court in Fairfax Media Publications v Voller [2021] HCA 27 (Voller), the Australian Government released a draft Social Media (Anti-Trolling) Bill 2021 (Anti-Trolling Bill) in attempt to absolve liability for social media page owners from defamation claims arising from third-party comments. Prior to Voller, a victim wishing to bring a claim against an anonymous commentor was to seek preliminary discovery from the social media platform to acquire the general location of the user with further steps needed to obtain identification information. The High Court in Voller upheld the decision of the New South Wales Court of Appeal finding that those who maintain social media pages may be exposed to liability for defamatory comments by third parties on their page – even if not aware of the posts.
The proposed Bill has two primary purposes: to create additional mechanisms for social media users to unmasked anonymous commentors and absolve liability for page administrators from published comments by third parties. Under the Bill, an Australian person who administers a social media page is not deemed a publisher of third party content. Rather, liability is imposed upon the social media platform itself, subject to a conditional defence (see Section 15), if it has in place and complies with a ‘complaints scheme’ (outlined in Section 16). The defence is enlivened if the provider can prove the defamatory comment was made in Australia, a complaints scheme was implemented and complied with, and (if requested by the complainant or court) the commenter’s contact details have been disclosed.
While legislative reform is needed to bring defamation in line with modern social practices, there is doubt that the proposed Bill will succeed in doing so. Whilst the reforms propose a promising scheme of assistance for minor disputes and public interest news, not all areas will benefit from its implementation. The Law Council has advised that greater focus is needed on the originator of the defamatory material, rather than the intermediaries as primary entitles of liability. Additionally, the mechanisms of identification are not substantially different to preliminary discovery processes currently utilised by prospective plaintiffs and there is a risk that the scheme will impose an unlawful interference with privacy of social media users. Furthermore, the complaints scheme is merely a pre-condition to the section 16 defence and thus there is no guarantee the platform provider will implement it. The Bill’s emphasis on the act of ‘trolling’ is also potentially too broad to encapsulate the nature of potential defamation claims. Trolling is often characterised by forms of abuse, harassment, and prolonged bullying. While these acts are potentially harmful, there is limited assurance they are also defamatory.
Moving forward it is essential that social media page owners are provided an adequate mechanism to impose liability on the service platform, but as the Bill currently stands there is limited expectation of success.