Legal experts have warned the federal government’s attempt to tackle abuse and trolling online might not offer much protection to ordinary social media users.
- Prime Minister Scott Morrison previously voiced anger at “horrific abuse and harassment and stalking online”
- But some media law specialists warned the specific powers of the bill might not go far in reducing the volume of abuse and trolling online
- Anyone with a dispute who feels they have a realistic defamation case against an anonymous social media user can ask the courts to force a social media company to reveal that person’s identity
But they said they could prove useful to celebrities and particularly wealthy Australians who could afford the risk of potentially hefty legal bills.
The laws were released in draft form last week, and will effectively compel social media companies to collect the personal details of their Australia-based users.
It would then create a legal avenue for companies to be forced to reveal the identity of those users to aid potential defamation action.
But lawyers warned defamation action could be incredibly costly, and while the legislation aims to help resolve online disputes outside of court, they were bound to leave some disappointed.
‘This isn’t a quick fix’
The government wants to tackle anonymous abuse online in particular.
Prime Minister Scott Morrison voiced anger at “horrific abuse and harassment and stalking online”, and frustration at social media companies for not doing more to tackle it.
But some specialists in media law, like Angela Flannery from law firm Holding Redlich, warned the specific powers of the bill might not go far in reducing the volume of abuse and trolling online.
“It may well be quite effective in relation to defamation,” she said.
“But it’s it’s not a broad reaching anti-trolling bill.”
The bill sets out hurdles a person making a complaint about something posted online has to jump through.
Ms Flannery suggested those hurdles would likely be too great and too expensive for many.
“If you don’t think that ultimately you want to run defamation proceedings, this isn’t a quick fix for you,” she said.
“Basically, the social media company will need to tell the person that’s posted the comments that you’re considering defamation proceedings and ask them to take it down.
At that point, a person making a complaint is left with the prospect of a costly legal battle.
‘That can be a pretty expensive and involved process’
Anyone with a dispute who feels they have a realistic defamation case against an anonymous social media user can ask the Federal Court to force a social media company to reveal that person’s identity.
Gordon Legal defamation lawyer Hamish Williamson said that was not a simple option.
“Because that can be a pretty expensive and involved process.”
Once the person’s identity is revealed, only at that point can a defamation case actually be launched.
In the age of social media, lawyers have seen more Australians weighing up whether to take trolls to court.
But it is often wealthy people, those with public profiles — or both — who pursue such claims, because they have the money to pay the legal bills and a bigger reputation to protect.
But Mr Williamson said he was supportive of the move to require social media companies to set up a complaints process.
He said communicating with the social media giants could be difficult — and it might see more disputes resolved sooner.
“When you send off a complaint to them, they can take quite some time to be dealt with,” he said.
“And it can be kind of unclear if you do feel that you’ve been defamed who you actually need to speak to.
“So I think this part of the bill is intended to provide a bit of clarity there.”
One big relief for those with a big social media presence
The laws also seek to clear up who is responsible for what on social media.
That element of the bill is being welcomed by some legal experts who argue it would make it easier to work out where liability lies.
Currently, a business or group running a social media page is responsible for everything posted on it — including comments from others that it may not even be aware of.
The laws would push that responsibility onto the social media company.
It addresses questions raised in a recent high court case, where major media organisations were found liable for comments posted under news stories on their Facebook pages.
Mr Williamson argued it was important everyone on social media knew where the liability lay.
“The main thing that the law provides, at least in its initial stages, is clarity,” he said.
“I think it is a step in the right direction.
The legislation provides a potential shield to social media platforms.
If they have a complaints process up and working in line with what the legislation requires, it can use that as a defence against a defamation claim.
But Ms Flannery suggested the requirement to keep correct personal details of all Australian users — a key part of the complaints process — would not be as easy as it sounded.
“That that their records are accurate in terms of having email addresses and accurate phone numbers.”
Other questions have been raised about the bill, like the capacity of companies to verify identities, and preventing users using online tools to pretend they are located abroad.
But Ms Flannery said she could see the intent of the bill.
“The line that the government uses talks about interactions in the town square — back in the pre-internet days, everyone knew who everyone else was.
“The government is trying to move to that position on the internet as well.