The law in Australia has not yet caught up with the advent of social media.  It currently facilitates contributors in online environments to remain nameless and unaccountable.  Commentary and criticisms published online is not currently subject to the same scrutiny and accountability to which similar publications are in print. 

There should be safe spaces on the internet that families can trust.  Popular social media sites should not be places for trolls.  Those who wish to make comments from the shadows will always find a way to do this, but not where our children play. In our view, there should be no obstacle to the details of social media account holders being provided to those who request it. 

In our recent article about how best to uncover the details of anonymous online reviews, we highlighted the difficulties and questions that potential litigants face to seek relief in respect of anonymous and sometimes harmful online posts.  As noted in that article, the answers to those challenges clearly demonstrate the need for legislative reform.

Proposed legislative changes

The Federal Government has recently indicated that it proposes to release a draft bill that it hopes will assist potential litigants pursue defamation proceedings for potentially defamatory material published online.

The Federal Government is yet to release the wording of the draft bill.  As such, this article is based on comments made by the Government about the proposal.

The changes that the bill is intended to bring about include:

  1. Social media companies will be required to collect the contact details of each user. That is consistent with the highly successful domain name registration system, where domain names are easily regulated through a system of public registration.

  2. A complaints process for people who think they have been defamed by a social media user’s online posts.

    The process would require social media companies to facilitate a person making a complaint to the social media company about a post on a social media, which complaint can request:

    • a particular post be removed from the platform; and/or

    • the identity and contact details of the account user be provided to the person making the complaint.


    If such requests are made, then the social media company would be obliged to ask the account user responsible for the post or publication to remove the material and / or if they consent to their identity and contact details being provided to the complainant.

    If the social media user does not remove the post / publication or otherwise does not consent to their details being provided to the complainant, then the complainant will be permitted to apply to the Federal Court seeking an order that the social media platform provide the name and other details of the account user (Court Application).

  3. Liability for matters published on social media platforms would shift from the person managing a social media page to the social media company which operates the platform and the person making any comments; that change is intended to alter the effect of the recent decision of the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, where the Court held that the media companies involved in that proceeding were ‘publishers’ of third party comments on their respective social media accounts.

    If social media companies adhere to the requirement to implement a complaints process, then they may be able to rely on steps taken as part of that process as a defence to potential defamation liability.

  4. The Government has indicated that it may fund a community-based legal centre to intervene in private defamation matters to assist in identifying online users who have potentially defamed others.

Shortcomings

Whilst the reforms are a step in the right direction, there are significant shortcomings.

  1. Social media users could still remain anonymous and post potentially defamatory material online. The proposed requirement that social media companies hold the name and other contact details users does not address the issue of online users being able to anonymously and with impunity publish comments online that could cause harm to another person or business.

  2. The complaints process still requires the consent of the account holder of the social media account for the social media company to give out the name and contact details to potential litigants. That requirement does not change the effect of the current process for litigants to make a very expensive application to a court by way of pre-action discovery.

  3. At this stage, it is our understanding that a Court Application may only be made to the Federal Court, which is currently the most expensive Court in Australia. This creates an impossible obstacle when often quick action is needed.  It is our view that the Federal Government should create a more nimble tribunal or arbitration system, which works so well for domain name regulation, to make a swift decision to remove the material and provide the name of the person responsible.

  4. Making the social media entity responsible for the content of the post will only create a situation where social media users are forced to sue billion dollar companies. This is not workable.  Instead, the process for identifying the person responsible for the comment should be quick and cheap.

  5. If the social media provider cannot identify the poster or the poster refuses to provide their consent to be identified, the account holder should have their account blocked and the post removed until the matter is resolved.

These matters should be addressed, and swiftly.

What could be done?

If a person wishes to engage in public discourse on popular social media channels, their name should be available with their published content.  Such a step would ensure that social media users, like all other citizens in all other aspects of our public discourse, can be held accountable for their actions.  Adding that level of accountability may also assist to dampen some of the more acerbic aspects of social media publications.

The contents of this article are intended to provide general information and commentary only. It is not intended to constitute legal advice, and has been prepared based on applicable law at the date of publication (01/12/2021).