Facebook, Twitter and other social media sites could be legally liable for defamatory posts made by users unless the tech companies out the person responsible under new laws proposed by the Australian government.
Prime Minister Scott Morrison announced the proposed changes to defamation law for social media platforms on Sunday.
The changes will redefine the companies as publishers that could be held liable for defamatory comments posted on their platforms. But they will be able to avoid liability if the platform provides information that identifies the person responsible.
The government is hoping to introduce the new laws before parliament rises for an election due by May 2022.
Under the proposal social media platforms will need to develop a rapid complaints system that ensures defamatory remarks can be removed and the person responsible for it identified.
At first the social media company will ask for the consent of the person responsible to identify them. If the refuse, a new Federal Court order that will be part of the changed laws will force the social media company to disclose who was behind the comments, and if it won’t or cannot, they would be legally liable.
And in a big win for traditional media companies, which have been found liable for reader comments on their pages on social media, the government plans to change the law so Australian organisations with a social media page are not legally considered publishers and cannot be held liable for any defamatory comments posted on their page.
Prime Minister Scott Morrison said social media “can too often be a cowards’ palace”, hailing the proposed changes as “world-leading”.
“The online world should not be a wild west where bots and bigots and trolls and others are anonymously going around and can harm people,” he said.
“That is not what can happen in the real world, and there is no case for it to be able to be happening in the digital world”
Morrison said the social media platforms should not be 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,” he said.
“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.”
Not fair and not right
Attorney-General Michaelia Cash said the High Court’s decision in the Dylan Voller case meant that “ordinary Australians are at risk of being held legally responsible for defamatory material” posted by others online.
In that case, the High Court ruled that news organisations are liable for defamatory comments posted by readers on their Facebook pages.
“This is not fair and it is not right. Australians expect to be held accountable for their own actions, but shouldn’t be made to pay for the actions of others that they cannot control,” she said.
“The reforms will make clear that, in defamation law, Australians who operate or maintain a social media page are not ‘publishers’ of comments made by others.”
The Attorney General said the package of reforms would complement the defamation reforms currently being progressed in partnership with states and territories, and sit alongside the Government’s commitment to improving online safety.
“Social media providers should bear their fair share of responsibility for defamatory material published on their platforms,” she said.
“However, if defamatory comments are made in Australia, and social media providers help victims contact the individuals responsible, it is appropriate they have access to a defence.”
As the parliament prepares to rise for the summer break, the government plans to release an exposure draft of the legislation will be released in the coming week.
MPs reach for lawyers
Defamation actions against social media users has largely been a profitable hunting ground for politicians in recent years.
Last week defence minister Peter Dutton was awarded $35,000 in a Federal Court defamation case against refugee advocate Shane Bazzi over a now-deleted tweet that accused the MP of being “a rape apologist”.
The Minister issued a series of defamation threats against a range of people over social media posts earlier this year.
In August ABC journalist Louise Milligan paid $79,000 to settle a defamation case brought federal Liberal MP Andrew Laming over a series of now-deleted tweets at a time when the MP was accused of acting inappropriately against women.
And ironically, government MPs have been regularly outed using social media under fake names, although in those instances, it’s often to praise their own exploits.
The Guardian reported earlier this year that Laming, who was accused of ongoing online harassment, had reportedly created 30 Facebook pages and profiles under the guise of community groups.
Satirist Mark Humphries had his own take on the proposal
Australian government cracks down on online trolls. pic.twitter.com/wvyAm7Uzy0
— Mark Humphries (@markhumphries) November 28, 2021
Labor leader Anthony Albanese said he supported the spirit of the government’s proposal, but the government needed to explain how the domestic controls would apply to a global industry.
“What we don’t want is someone shutting down an account in Australia and opening one internationally with a global ISP address that isn’t available here in Australia,” he said.
Chris Cooper, executive director of Reset Australia said the proposal won’t resolve the online hate problem.
“Social media companies promote, amplify and profit from hate – catching trolls won’t end online hate,” he said
“The most pressing problem here is not trolls, it is the disproportionate reach of their content enabled by the algorithms of social media companies that prioritise sensational, outrageous and conspiratorial content – the form which defamatory content usually takes. “
Cooper said forcing social media companies to identity individuals doesn’t hold them accountable for profit-focused amplification of hate speech and misinformation.
“Online anonymity does protect trolls from accountability, but it also is an important tenet of a free and open internet that protects critics of the powerful which can hold leaders accountable,” he said.
“We cannot throw away anonymity and the protection it provides vulnerable communities, for the sake of reining in trolls who mostly are only able to cause harm because of social media platforms that profit from amplifying their content.”
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