Anti-troll laws to compel social media to unmask anonymous commenters

Social media platforms will need to successfully hand over the contact details of anonymous commenters making defamatory posts if they are to avoid liability under proposed "anti-troll" laws.

An exposure draft of the Social Media (Anti-Trolling Bill), published on Wednesday, provides the first look at laws intended to unmask anonymous commenters that make defamatory or abusive posts online.

The government first flagged the bill earlier this week to rein in “anonymous trolls” on platforms like Facebook and Twitter, which caught the ire of Prime Minister Scott Morrison at the recent G20 Summit.

The proposed laws would see social media platform designated publishers of any comments made on their services in Australia, including those that are defamatory, while clarifying that media companies and other page owners are not publishers.

But a safe harbor provision embedded in the bill will grant platforms immunity if they disclose the contact details of an anonymous user alleged to have posted a defamatory comment about the complainant.

In order to use this defence, platforms will be forced to stand up a complaints scheme that allows aggrieved users to report comments they allege to be defamatory and obtain the contact details of anonymous commenters.

Where aggrieved users report a potentially defamatory comment, the platform will have 72 hours to inform the anonymous commenter of the complaint.

If a commenter does remove the comment or consent to the comment being removed by the platform, the complainant will be able to obtain the contact details of anonymous commenters.

Aggrieved users would also be able to make an application to a court for an end-user information disclosure order to obtain this information from the platform – or the platform's local operations.

Platforms with at least 250,000 Australian account-holders would be required to establish a nominated local entity.

Both mechanisms could be used to disclose the “originator’s name, email address and phone number”, which could be used by the complainant to serve court documents.

But platforms will not be afforded the defence under defamation law if the contact details are “fake or inaccurate”.

“At its core... this mechanism ensures an applicant will either have the relevant contact details in order to bring defamation proceedings against the originator, or will be able to bring defamation proceedings against the social media provider,” the explanatory paper on the proposed laws states.

“A consequence of this mechanism is that a social media provider may be unable to disclose the relevant contact details, which could occur where, for example, the originator has not consented to disclosure or where the social media provider simply does not have those details at its disposal.

“In these circumstances, the provider will not have access to the defence. This ensures an applicant will have an available respondent to bring defamation proceedings against.”

The bill also seeks to prevent abuse of the complaints mechanisms by not requiring companies to take action on complaints that “appear not to relate to a genuine defamation claim”.

Courts are similarly afforded the ability to “decline to grant an end-user information disclosure order in circumstances where, among other things, there is a risk to the originator’s safety”.

Page owner not publishers

While the proposed laws will designate platforms as publishers, they will also override a recent High Court decision that found page owners were liable for defamatory comments made by third-parties.

The decision led some media companies to stop publishing posts on Facebook, while other like CNN blocked access to its Facebook pages in Australia.

The bill makes it clear that “an Australian person who maintains or administers a page of a social media services is taken to not be a publisher of a third-party comment posted on the page”.

The government is concerned that the “fear of being held liable in defamation” - resulting in censored comments or disabled functionality - may have a “chilling effect on free speech.

“The [High Court] decision highlights the challenges faced by individuals and businesses about defamation liability on social media,” another explanatory paper on the proposed laws state.

“Following [the High Court decision], it is clear that Australians who maintain an ordinary social media page could liable for defamatory comments posted by third parties—even if they do not know about the comments.

“The government considers it is not appropriate for social media account owners to be liable for defamatory comments posted by others.”