Prime Minister Scott Morrison announced a “package of reforms” targeting “online anonymous trolls” last November, saying social media companies have allowed their platforms to become “a cowards’ palace, where the anonymous can bully, harass and ruin lives without consequence”.
Later that day, in front of the media, the PM waxed lyrical about the need to “keep our online world safe” for kids and families to protect them from “horrific abuse and harassment and stalking online” and, in particular, to prevent aggressive behaviour towards women.
Three days later, the Attorney-General’s Department released its draft Social Media (Anti-Trolling) Bill 2021, which proposes a set of laws that force social media companies to unveil the identity of anonymous users when a court order requires it.
But, in perusing its “anti-trolling” law, it’s clear that what the Morrison government wants to establish is a system designed to enhance the ability of the powerful to take action against anonymous online criticism, while dressing it up as a means to empower vulnerable Australians.
Indeed, these laws are being proposed at a time when a series of local politicians — with defence minister Peter Dutton chief among them — have been launching defamation suits against their online critics. The Anti-Trolling Bill will bolster this ability to shut down political dissent.
Shielding government
“Most online abuse isn’t defamatory, so it will be completely unaffected by this legislation,” explained Dr Vanessa Teague of the Australian National University Research School of Computer Sciences. “Much of this is not anonymous now, but continues anyway, so removing anonymity would not make any difference.”
Defamation involves written or spoken false statements about someone that could damage their reputation and are available to third parties. But, as Teague said, regular abuse, whether it be racist or transphobic or otherwise, is not considered defamatory due to its less serious or trivial nature.
Dutton sued Shane Bazzi last year, as the refugee rights activist tweeted that the minister was a “rape apologist”. The case was successful, as the judge accepted that Dutton’s feelings had been temporarily hurt. Since then, the defence minister has suggested that he may have others in his sights.
Teague said that even in the small number of cases in which regular “online trolling or abuse also happens to be defamatory”, the person being targeted would need the financial capacity to mount a defamation case.
“This is out of reach for most regular people,” she told Green Left. “The bill therefore seems extremely unlikely to have much impact on online abuse of ordinary people.”
Nowhere to hide
The High Court ruled in last year’s Fairfax Media Publications Pty Ltd v Voller that social media page owners are the publishers of third-party comments posted to their pages and, therefore, are liable for them. The Anti-Trolling Bill shifts this burden onto the social media company itself.
According to Electronic Frontiers Australia board member Paul Ruberry, “the amnesty for social media page owners” is the only part of the legislation that is favourable.
The bill also creates an end-user disclosure order, which permits an individual claiming to have been defamed anonymously on social media to present their case to a court. If satisfied, a judge can issue an order that requires the tech company to reveal the commenter’s identity.
Companies like Facebook would therefore be required to collect and verify the “relevant contact details” of all its Australian users. This would include their names, the name they’re known by, their email address and phone number, as well as anything else “specified in the legislative rules”.
The delivery of users’ “relevant contact details” is framed as a defence against liability for tech companies, which must have a complaint’s scheme in place that removes suspect comments, reveals the location of the commenter and, if in Australia, hands their details over within 72 hours.
If passed, the Anti-Trolling Bill would also require foreign social media companies with more than 250,000 Australian users to establish a locally incorporated “nominated entity” that operates out of an office here, to act as its agent in dealing with any matters relating to these laws.
Further online incursions
Ruberry suggested that these laws could have implications for another set of controversial measures that Dutton oversaw in 2018 when he was home affairs minister. These encryption-busting powers are contained within what’s commonly referred to as the TOLA Act.
Dutton’s laws set up three tiers whereby “designated communication providers” are required to let law enforcement into their encrypted messaging systems. These measures can entail an order to hand over decrypted messages, or another requiring the building of backdoor access into a system.
While pointing out that the two sets of laws differ in their application, Ruberry said that in considering them together “the anti-trolling bill would strengthen the TOLA Act by forcing social media companies to have a local legal entity”, which would enhance the ability to enforce access orders.
Both the proposed anti-trolling laws and those in the TOLA Act are unprecedented globally. Teague points out that it is unlikely some of these measures would have been passed in the United States, where a bill of rights would have prevented such far-reaching encroachments.
Protecting their own
Morrison is likely to be less able to spruik the bill as “every person” protections after admissions about their true nature were made at the recent Select Committee on Social Media and Online Safety inquiry.
Michael Johnson, the AG Department’s Defamation Taskforce assistant secretary, told the committee that the term “anti-trolling” being included in the title of the bill might be misleading, as its contents are “about defamation, and it is not intended to address broader types of online harm”.
“The reason for it being in the title of the bill is that the behaviour that we are looking at is one form of trolling, but it certainly is not intended to suggest that this bill seeks to address trolling generally, nor online harms generally,” he added.
It is hardly surprising that the PM is not fighting to protect women from online harassment, when considering his handling of the Brittany Higgins assault , the rape allegations against former Attorney-General Christian Porter, as well as his shoddy reprimand of MP Andrew Laming.
The idea that Morrison is moving to enhance the ability of Liberal Nationals MPs to curb online criticism makes much more sense, as a gaggle of MPs has been queueing up to silence their critics via court action. Along with Dutton, last year former NSW premier John Barilaro moved to sue YouTube satirist Jordan Shanks, while Laming has been threatening to sue everyone else.
“I’m concerned that it will make it much easier for powerful people to threaten those who criticise or embarrass them online,” Teague said, adding, “That’s particularly serious in an election year”.
[Paul Gregoire writes for Sydney Criminal Lawyers.]