Anti-trolling bill levelling the playing field for social media

Chris Merritt                 7 January 2021

Published in the Australian Newspaper

Defamation law purports to make it possible for people to restore their reputations after public attacks have brought them into hatred, ridicule or contempt. But the reality differs from the theory.

This form of justice frequently depends on having access to very large amounts of money – particularly when the fight is with a well-resourced organisation.

This helps explain one of the most savvy aspects of the crackdown on online trolling that has been unveiled by Scott Morrison and his Attorney-General, Michaelia Cash.

They plan to have the federal government help finance – or at least threaten to finance – defamation fights against the massive companies that dominate social media.

This mechanism, outlined in the exposure draft of the government’s Social Media (Anti-Trolling) Bill, amounts to a warning that these companies will be unable to win courtroom battles over trolling by simply outspending those whose reputations have been wrecked.

It gives these companies an incentive to comply with the government’s plan: establish a complaints handling system and be prepared to unmask online trolls so they can be sued.

Failure to do so means these companies will be held responsible for the defamatory material these people publish on their networks.

And if they choose to fight it out in court, there is a risk the victims of their wrongdoing will have the financial backing of the federal government, and government lawyers on their side of the argument.

Despite being tucked away in the miscellaneous provisions, the plan to help finance and take part in legal action against these companies is of great significance. It amounts to recognition that there is a role for government money in ensuring a fair fight in defamation disputes.

So if there is a role for government money in ensuring the fairness of courtroom fights with social media companies, how can that principle be confined?

What about fights with other organisations that have access to immense resources?

Part 5 of the Bill contains the provisions allowing the Attorney-General to intervene and become a party in defamation proceedings against these companies.

One of the triggers for that intervention would be the Attorney-General’s assessment that the proceedings would affect the rights of those who are socially or economically disadvantaged.

The Bill would create a discretion to authorise payment by the federal government for those legal costs reasonably incurred by the applicant.

The mere existence of these powers should be enough to ensure they are rarely used. But they will be there as a backstop if social media companies fail to adopt the procedures that would enable them to reveal the identity of trolls and invoke a defence.

The government’s plan has the effect of overturning the key principle from a High Court decision in September that undermined the law’s ability to hold online trolls to account.

That ruling, known as Fairfax Media v Voller, had the effect of shifting liability from trolls and the social media services.

It meant everyone with a Facebook page was considered to be the publisher of defamatory comments that are left on those pages without their knowledge or consent.

It should come as no surprise that the Voller decision won few friends.

The explanatory note that accompanies the exposure draft of this Bill says the government considers it inappropriate for social media account owners to be liable for defamatory comments posted by others.

Under this scheme, liability will rest with the wrongdoers: preferably with trolls, but if that is not possible, with the companies that disseminate their material.

It consists of a carrot and a stick: A complete defence for the social media companies is on offer. But so is the threat of government money and legal expertise if they decline to identify trolls so they can be sued.

This does not amount to a federal takeover of defamation law and but it does make highly targeted changes.

Yet the reality is that state Attorneys-General have been relieved of the burden of developing an agreed position on how to fix the problems caused by the Voller decision.

Morrison and Cash have done them a favour.

If implemented, the core of this Bill will be broadly in line with the way Britain deals with the same issue.

In April, NSW Attorney-General Mark Speakman issued a discussion paper that favoured a British provision that gives website operators a “safe harbour” if they can show they did not post the defamatory material and they have enough information about the identity of the wrongdoer to enable a complainant to sue.

By going further, and raising the threat of federal intervention and financial support in defamation proceedings, this Bill has stepped up the pressure on social media companies and enhanced the position of those who take these companies to court.

This is quite a change and the implications will not be lost on those who have been startled by the amount of money another rich organisation, the ABC, has been spending on defamation cases.

Is a fair fight against the ABC possible?

Just consider what might have happened if Christian Porter, the former Attorney-General, had the benefit of a level financial playing field in his recent case against the ABC.

There can be little doubt that the massive cost of financing that fight, and political attacks on his fundraising efforts, truncated his political career and led to his decision this week to leave politics at the next election.

The Anti-Trolling Bill will not cover the ABC but it will make it possible to unmask those who seek to use anonymity to sidestep the corporation’s latest social media crackdown.