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 [2021] 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[1]. 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.”[2] 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.

Looking Forward

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

Footnotes

[1] Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 712 [45].

[2] Attorney-General’s Department, Social Media Anti-Trolling Bill 2021: Explanatory Paper at 3

Proposed changes to the defamation act 2005 (QLD)

Defamation is commonly regarded as an imputation or assertion which would cause ordinary, reasonable members of society to think less of someone. It must be published and it must be untrue. Previously, to “publish” such an imputation or assertion required the physical printing and dissemination of a document but, with the wider reach and influence of online platforms, “publication” extends to media releases, writings, speeches, drawings, reports, advertisements and “any other thing by means of which something may be communicated to a person”.

Any cause of action for defamation, under Queensland jurisdiction, is governed by the Defamation Act 2005 (Qld). The purpose of this Act is to supplement pre-existing common law and to strike a balance between protecting the reputations of individuals and the implied freedom of expression of the general public. It also aims to facilitate dispute resolution between ‘publisher’ and ‘aggrieved’ parties. Introduced in the Queensland Parliament on 20 April 2021, the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld) proposes amendments to the Defamation Act which would further clarify and align these current objectives. Amendments, as they are proposed, most notably include:

1. 1. Amendments to limit the types of corporations that can sue for defamation;
   2. The introduction of the ‘serious harm element’ required as an element of the cause of action for defamation;
   3. Various amendments throughout the Act designed to ‘better facilitate’ defamation dispute resolution prior to litigation; and
   4. Changes to the roles of judicial officers and juries for various procedural matters. These proposed changes won’t be further discussed other than to say that certain defences would be determined by a jury (if there is one elected or required) and that judicial officers would be required, instead of juries, to determine whether the new ‘serious harm element’ is established.

Currently, section 9 of the Defamation Act excludes certain corporations from having a cause of action for defamation. These ‘excluded corporations’ include corporations which are ‘related’ to other corporations. The Bill proposes to further restrict the types of corporations that can sue for defamation to replace ‘related’ corporations with corporations that are ‘associated entities’ of other corporations. The term ‘associated entities’ is defined by section 50AAA of the Corporations Act 2001 (Cth). Briefly, an entity (the associate) is an associated entity of another entity (the principal) if:

1. 1. The associate controls the principal and the operations, resources or affairs of the principal are material to the associate; or
   2. The associate has a qualifying investment in the principal, the associate has significant influence over the principal and the interest is material to the associate – or vice versa for the principal; or
   3. A third entity controls both the associate and principal and the operations, resources or affairs of the principal and associate are material to the third entity.

Under section 50AAA, a ‘qualifying investment’ means an asset that is an investment or an asset that is the beneficial interest in an investment that is controlled by the entity which invests it in another entity.

It is important to note, however, that whilst excluded corporations cannot sue for defamation, they can, under similar but differing circumstances, sue for injurious falsehood which arises when corporations have suffered commercial loss. Injurious falsehood and defamation actions differ in that the former is intended to protect businesses from undue financial loss and the latter protects individuals from reputational harm.

The ‘serious harm element’ requires aggrieved parties to prove the publication of defamatory matter has caused, or is likely to cause, serious harm to the reputation of the aggrieved. For an excluded corporation, harm is not serious unless it involves serious financial loss. The current defence of triviality, should this Bill be enacted, would be omitted from the Act – the threshold of ‘serious harm’ nullifies any need to rely upon it.

New amendments introduce certain forms required to be exchanged between parties before the aggrieved may commence defamation proceedings. First, a concerns notice must be provided to publishers of defamatory matter (on behalf of the aggrieved) which outlines, most notably:

a. The location where the matter in question can be accessed;

b. The defamatory imputations of the aggrieved;

c. The harm that the aggrieved considers to be serious harm to the reputation of the aggrieved caused, or likely to be caused, by the publication; and

d. If the aggrieved is an excluded corporation, the serious financial harm the publication has caused or is likely to cause.

Further to the concerns notice, if the aggrieved fails to provide the required information needed for this notice, the publisher may request a further particulars notice from the aggrieved, required to be returned within 14 days. This notice requires the aggrieved to provide reasonable further particulars specified in the notice about the information concerned.

A publisher may make an offer to make amends within 28 days of receiving a concerns notice. Otherwise, if 14 days has passed following the provision of a concerns notice, the offer to make amends must be made within 14 days after the aggrieved provides to the publisher further particulars in response to a further particulars notice. If the relevant period to make an offer to make amends expires, the publisher may commence defamation proceedings.

Defamation proceedings may still commence without the provision of required concerns notice in limited circumstances, or where the court may consider it just and reasonable. Generally, defamation actions must commence within one (1) year from the date of publication of any defamatory matter.

Ultimately, the Bill proposed by the Queensland Parliament will have implications on both publishers and aggrieved parties should it be enacted, and will affect how defamation actions proceed.

Corney & Lind has extensive experience in the field of defamation. Should you require any advice on commencing or defending defamation action, feel free to contact our office.

This article was written by Law Clerk

Defamation: Watch out for trolls!

Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102

In a decision on Monday, 1 June 2020, the NSW Court of Appeal held that news outlets were liable as “publishers” for readers’ Facebook comments partially because they “encouraged and facilitated” comments by setting up public Facebook pages.

What is Defamation? 

Defamation is the publication of unsubstantiated ‘facts’ that negatively impacts the reputation of an individual.  In New South Wales and Queensland, compensation claims for damages arising from defamation are governed by the provisions of the Defamation Act 2005 (NSW) and Defamation Act 2005 (Qld) respectively.

The Voller Case

In July 2017, former youth detainee Mr. Dylan Voller commenced proceedings against three media companies, Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd claiming damages for defamation based on the content of third party comments on their Facebook pages.

These substantive proceedings raised four questions for the Court to examine: namely,

1. 1. Did the media companies publish the posts?
   2. Were the posts defamatory?
   3. Were there defences with respect to the publications (for example: triviality, innocent dissemination, substantial truth)?
   4. What damages should be awarded?

Did the defendants “publish” the posts? 

Pursuant to rule 28.2 of the Uniform Civil Procedure Rules (NSW), the parties agreed to have the first issue (the publication issue) initially heard separately given the other elements largely hinged on this first issue.

In 2019, Rothman J at first instance held that the media companies, as the owner of a public Facebook page, “assumes the risks that comments made on that page will render it liable”.

Rothman J held that these large media companies had the resources available to oversee and moderate the comments. This includes disabling all public commenting (particularly on controversial articles which may likely give rise to defamatory material) and hiding all comments by applying filters of very common words and approving comments that are not defamatory.

This decision was largely upheld by the New South Wales Court of Appeal, as Basten JA, Meagher JA and Simpson AJA highlighted that the media organisations subscribe for a Page and “encourage and facilitate” the making of comments by third parties.

Meagher JA and Simpson AJA state:

“…a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees”.

Innocent Dissemination Defence?

Crucially, the Court of Appeal clarified that media organisations may still seek to rely on the defence of “innocent dissemination” at final trial. There has not been any finding at this stage that the comments were in fact defamatory.

It is anticipated this decision, particularly if it is appealed to the High Court, would apply to cases in Queensland given the similarities between the jurisdictions on the law of defamation.

Written By James Tan and Luke Borgert