The Federal Government is taking dedicated approaches in the fight of online harms, providing improved protections for Australian adults, children and businesses by way of two distinct and important pieces of legislation.
Social Media (Anti Trolling) Bill 2021
New proposed social media laws have been announced in response to the High Court’s decision in Fairfax Media Publications v Voller  VCA 27 and are designed to better protect Australians from being defamed on social media platforms such as Facebook and Twitter.
On 28 November 2021 the Morrison Government introduced the Social Media (Anti-Trolling) Bill 2021 which addresses the harm of defamatory comments posted on social media platforms and considers the legal implications of the Voller case. You can read our analysis of the Voller case here.
Since the decision of Voller was handed down, the Australian Government has stated that it does not consider it is appropriate for owners of social media pages to be liable for defamatory comments posted on their pages by others.
The new Social Media (Anti-Trolling) Bill seeks to:
- unmask the identity of individuals who post defamatory content on social media by allowing users to apply to the court for an “end-user information disclosure order”. Such orders will force social media providers to disclose details of the originator/publisher to victims so that defamation action may be taken;
- makes clear that social media platforms such as Facebook, Twitter and Instagram will be liable for third party defamatory comments subject to a new conditional defence (and without the ability to rely on the innocent dissemination defence);
- clarifies that contrary to the decision in Voller, people who maintain a social media page will not be considered “publishers” of third party comments posted on their page for the purpose of defamation proceedings; and
- establishes a standardised complaints system to encourage the prompt removal of defamatory remarks from online forums.
The Government has established a Select Committee to consider the Social Media (Anti-Trolling) Bill 2021. Submissions to the Committee were due by 21 January 2022 and the Committee is due to publish its final report by 15 February 2022.
The Law Council in its recent submission on 23 January 2021 to the Federal Government recommended that the Commonwealth Government withhold intervention at the federal level in social media defamation until the review of Model Defamation Provisions is completed. You can read our article on Stage 1 of the reforms to defamation laws here.
The law council president, Mr Tass Liveris, stated that “defamation law is likely to be a relatively ineffective mechanism for seeking individual reputational redress and for reducing trolling activity on social media. In practice, the Draft Bill will have very little impact in improving this situation.”
The Online Safety Act 2021
In effect as of 23 January 2022 the Online Safety Act 2021 proposes a new, world-first adult cyber-abuse scheme, along with an expanded child cyberbullying scheme which encompasses social media, games, websites and messaging services.
Re-appointment of eSafety Commissioner
The reappointment of Julie Inman Grant as the Federal eSafety Commissioner occurs with the addition of expanded powers, including the ability to issue orders for removal of online content which constitutes cyberbullying, intimate images shared without consent, abhorrent violent material and restricted online content.
Where there is a failure to remove the content, the Commissioner can issue fines of up to 500 penalty units ($111,000 for individuals and $555,000 for companies).
New Adult Cyber Abuse Scheme
Australia is the first country in the world to implement an Adult Cyber Abuse Scheme, which gives eSafety the ability to provide orders to remove online abuse that targets Australian adults.
The threshold for what represents ‘adult cyber abuse’ under the legislation has been set deliberately high, to ensure it does not stifle freedom of speech. The content must have been intended to cause a person “serious harm’ and be “menacing, harassing or offensive in all circumstances”. Serious harm is defined in the scheme as psychological harm and distress “that goes beyond mere ordinary emotional reactions such as those of only distress, grief, fear or anger”.
eSafety can seek civil penalties or fines up to $500,000 against online service providers that do not remove the material. For individuals responsible for posting seriously harmful material that do not comply with removal orders, civil penalties or fines up to $111,000 can be sought.
Improved Cyberbullying Scheme for children
With 94% of children under four found to have access to an internet-connected device, the eSafety Commissioner has expanded the existing cyberbullying scheme to provide greater protections to children.
Material is considered to be cyberbullying if it is posted on a social media service, relevant electronic service or designated internet service which is intended to target an Australian child, and which has the effect of seriously humiliating, harassing, intimidating or threatening the child.
The Act also modifies the pre-existing scheme for reporting online bullying.
Under the new scheme targeted adults, children, a parent or guardian of the child or someone who is authorised by the child to complain on their behalf can make a complaint to eSafety reporting abusive online material. The eSafety Commissioner can only issue a take down order where the complainant has previously reported the content to the relevant online platform. Where orders are issued, the platform has 24 hours to comply or be issued with a fine if they fail to act.
A notice to remove content is required under the legislation to be reviewed by the office of the eSafety Commissioner. The decision is able to be appealed to the Administrative Appeals Tribunal.
Elit Lawyers by McGirr & Snell has over 60 years defamation experience acting on behalf of individual plaintiffs including high profile executives, parliamentarians, sporting and public figures and companies in respect of publications published in both electronic and traditional media forums.