Three Billy Goats Gruff: Addressing the Troll under the Bridge
The proposed Social Media (Anti-Trolling) Bill 2021
Context behind Bill
The Federal Government’s proposed Social Media (Anti-Trolling) Bill 2021 has begun being drafted in Canberra largely as a response to the High Court decision of Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller  HCA 27 (Voller). This landmark case saw the High Court take an orthodox approach to interpreting what it meant to “publish” material defamatory in nature. The Court ultimately ruled against the appeal of the news media outlets which shared their articles online, primarily via their Facebook social media accounts.
The primary contention of this case was whether the appellants could be liable in defamation law for the publishing of Facebook comments under Facebook posts published by the appellants. The appeal to the High Court was made on the grounds that the appellants did not make the defamatory comments available to the public, did not participate in their publication and were not in any relevant sense instrumental in their publication. Crucially, the appellants contended any publication of defamatory matter required intention. This argument the Court rejected.
Ultimately, the Court held that defamatory matter published by a third-party (the third-party publisher) which is facilitated by the online pages (such as social media pages or websites) of an organisation or person (the facilitator) may make that organisation or person liable under defamation law. It was uncertain to what extent the facilitator’s knowledge of having facilitated defamatory material was required – a facilitator’s participation in the publishing is highly contextual and fact-specific.
Proposed Operation of Bill
The decision of the High Court, and the uncertainty of its effects on free speech, has prompted the drafting of the current Bill before Federal Parliament – titled the Social Media (Anti-Trolling) Bill 2021.
The Government has cited two main concerns following the Voller decision which it seek to address in the Bill:
1. To date, the reaction to the Voller decision by social media pages has seen comments disabled under posts and the general disabling of community engagement with important topics. The Bill aims to protect page owners by relieving them “as ‘publishers’ for defamatory material posted on their pages by third parties. In practice, this means a person who maintains or administers a page on a social media service will be protected from defamation liability.” The aim is to ensure that social media pages are not made liable for the posting of defamatory material by another.
2. The Bill will focus on addressing mitigating harm suffered by victims of defamation. In particular, the bill will introduce two recourses available to users suffering such harm through:
a. The introduction of a complaints mechanism which will allow the victim to raise their concerns surrounding the defamatory matter with the page provider (typically, the website host such as Facebook or other social media providers) and, with consent, obtain the contact details of the original author of the defamatory matter; or
b. Through obtaining a new ‘end-user information disclosure order’ from a court.
Either option will allow the victim to obtain the contact details (those being the name, email and phone number) of the original defamatory author. This will allow victims of defamation to seek resolution more easily from those causing harm and will provide, at least from the outset, a way to identify and make accountable anonymous users.
There are further proposed provisions which address the increasing presence of social media and online platforms in legal contexts – “fit-for-purpose” provisions within the Bill aim to allow the ever-evolving technology of online services to remain within the ambit of defamation law. The Bill will also aim to require social media providers to have nominated Australian entities to facilitate the proposed mechanisms mentioned above.
No doubt, since the decision of the High Court in Voller, the Government has reconsidered the operation of defamation law and the effects it has in the online community. With an aim to provide Australians with a faster and more accessible avenue to provide reprieve of harm suffered from the publishing of defamatory matters, this Bill will change (hopefully for the better) how online media platforms and pages respond to harmful material.
Broadly, discussion of this Bill and its proposed effects has been met with reservations. The general intention behind the Bill, that is, to identify “trolls” (online perpetrators), is quite easily circumvented. The use of a virtual private network (VPN) to effectively “re-locate” Australian-based online users to overseas servers, thereby appearing overseas and outside of the courts’ jurisdiction, is a legal and popular tool. The ability for online users to remain anonymous is still a factor which has, arguably, not been adequately contemplated by this proposed legislation. The Government will likely need contemplate how it wishes to tackle online anonymity – a principle that involves greater implications and requires deeper consideration.
The other issue which this Bill will likely face in opposition is how “harm” suffered by victims of trolling (not per se defamation) will be remedied. If the intention of the Bill is to address trolling, specifically where a user posts non-criminal inflammatory, digressive or provocative material, there are little options available. Whilst the Bill extends defamation law and its threshold requirement of “serious harm” to the online space, it does not allow for the remedy of harm suffered by trolling without trolling causing less than “serious harm” and harm that isn’t necessarily defamatory. If the Government wishes to address trolling as the Bill title suggests, other remedying avenues may need to be included.
Media platforms are yet to respond to the Bill and how it further regulates the online space. It should be expected that the Bill (and its interventions in platforms’ operations) will be met with opposition by these tech companies.
All considered, persons and organisations with online presences should remain vigilant in limiting their liability to adverse legal action. Internal policies such as social media and internet policies may need be reviewed, in particular, to address potential changes in defamation law and to ensure that operators and administrators of online pages are compliant with best practice. For assistance in this area, our experienced team can provide specialist and tailored advice and advocacy.
Please feel free to contact our office for the most up-to-date and relevant advice.
This article was written by Simon Mason
 Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 712 .
 Attorney-General’s Department, Social Media Anti-Trolling Bill 2021: Explanatory Paper at 3