Proposed anti-trolling legislation could change your liability for defamation on social media
09 December 2021
On 1 December, the Federal Government released the Exposure Draft of the Social Media (Anti-Trolling) Bill 2021 (‘Bill’). The purpose of the Bill is to address the harm of defamatory comments on social media.
What does the Bill propose to do?
The Bill addresses issues raised in the High Court Voller decision which held that organisations are responsible for defamatory third-party comments made on their social media pages. The Bill overrides this part of the Voller decision, by stating that organisations who maintain or administer pages on social media (as page owners) are not considered to be publishers of third-party comments on their pages, and clarifies the decision by confirming that the provider of the social media service is the publisher of such a comment if it is made in Australia.
The Bill also creates, for a social media service, a defence to a defamation claim if the service has a complaints scheme in place and assists the defamation victim to identify the third-party commenter.
For the defence to be available, the social media service’s complaints scheme must comply with requirements set out in the Bill.
- putting a procedure in place that allows a victim of a defamatory comment to make a complaint to the service about the comment
- disclosing the country location data of the commenter to the complainant to assist the complainant in a potential defamation action against the commenter
- (if the comment was made in Australia) informing the commenter that the comment is the subject of a defamation complaint, notifying the complainant that the commenter has been informed of this, and notifying the complainant of the outcome of the handling of the defamation complaint
- (if the comment was made in Australia and the complainant is dissatisfied with the handling of the defamation complaint) on the complainant’s request, asking the commenter whether they consent to disclosure of their contact details to the complainant, and (if the commenter consents to this) disclosing the commenter’s contact details to the complainant
The social media service may, with the consent of the commenter, remove the comment from the page. As an alternative to following this complaints procedure, under the Bill, a defamation victim can make an application to the Federal Court for an order that the social media service provides the commenter’s details to the victim. This order will only be granted if the Court agrees that the victim may have a claim for defamation.
What does this mean for your not-for-profit organisation?
Until the Bill is passed, the Voller decision remains the law.
This means that your organisation is still responsible for comments posted by other parties on your social media. It doesn’t matter whether your organisation disagrees with a defamatory comment or is even unaware that someone has posted a comment.
If the Bill is passed, it could mean that you will no longer be liable for defamatory comments made on your social media pages, where these comments are made in Australia.
For now, organisations should continue to monitor and moderate their social media pages for potential defamatory content and to create a safe environment for those that engage with your social media.
The Bill will be considered by a parliamentary committee being appointed to conduct an inquiry into online harms. Note, however, the exposure draft bill is open for submissions by the public until 21 January 2022. Address your submissions to Defamation@ag.gov.au.
We will monitor the progress of this proposed legislation and provide updates on our website and in our resources.