Submission in relation to Social Media (Anti Trolling) Bill

Social Media (Anti Trolling) Bill Consultation

Kindly accept this submission in relation to above Bill

The Bill provides for four sets of reforms to the law, which we will deal with separately.

1.Firstly the Bill would overturn the recent High Court decision in Voller so that social media is not the publisher of posts to their platforms. But it would make social media companies liable for defamatory matter posted to their platform if they do not disclose an anonymous poster’s details

Freedom of speech is a concept which has been said to apply only to government. However, there is no reason why it should not apply to private bodies, simply for being private.[1]

The Internet is the new public square. So much of public debate, discussion and exchange of information now takes place on the Internet. On that basis, the doctrines of freedom of speech must be applied to the Internet[2]

The rights of speakers on the Internet need to be protected.[3] We would say that the law should for example provide for a right of review before a Court or a tribunal of any decision by a social media organisation or similar body to exclude a person or their content from a platform for non-compliance with their terms and conditions.[4]

Another fundamental aspect of the right to freedom of speech is the right to do so anonymously. History is replete with examples of people having exercised their right of speech then being subject to reprisals by government or individuals. As we write below, this right of anonymity is not an absolute right. But it must be the starting point and it ought to be respected when it is exercised online.

Furthermore, there are reasons which in our opinion mean that it is inappropriate to make the providers of social media platforms liable for the comment on them, unless the social media entity in some way actively adopts or alters those comments.

The social media platform is simply the provider of a space in which people make contributions. They are not like for example the editor of a newspaper- controllers of what content goes on their sites.

Secondly, requiring social media providers to monitor and censor content produced by third parties is not only likely to have a profound chilling effect on the freedom of speech of internet users, but also make them complicit in a substantial invasion of their customers’ privacy.

For these reasons we support the decision to overturn the Voller decision rendering social media companies liable for comments posted on their platform but not making them liable for defamatory matter posted by users.

2.The Bill establishes a complaint scheme so that people who say that they have been defamed can ask that the anonymous person be identified. Under these provisions the commentator can decline to have their name released.

We would have no objection to legislation which creates what are known as “Notice and notice regimes” in which the social media entities pass on to a person who has uploaded information, a request from an aggrieved person that the information be removed. Under these regimes, there is no compulsion on the uploader to remove the information. We have no objection to such schemes as there is no compulsion to remove the material.

Similarly, this proposal is not objected to because the release of the identifying information will occur only with the consent of the creator of the content

3. Allow the Court to order a social media organisation to disclose the name of an anonymous person if it is satisfied that “there are reasonable grounds to believe that there may be a right for the prospective applicant to obtain relief in a defamation proceeding against the poster”.

As we noted above, the right to speak anonymously is not absolute. The law in this country already permits persons who allege they have been defamed to bring an application to a Court for an order, known as an order for preliminary discovery or disclosure, that a social media provider disclose the identifying details of a person who has posted allegedly defamatory material. The problem with the proposed provisions is that they significantly water down the existing requirements in a way which inappropriately limits the right to freedom of speech.

To successfully obtain an order for preliminary discovery[5], the Court must be satisfied that:

a)    the applicant is entitled to make a claim for relief;

b)    the applicant has made reasonable inquiries;

c)    despite the inquiries made, the applicant is unable to obtain sufficient information to decide whether or not to commence proceedings against a prospective defendant;

d)    the prospective defendant may have a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; and

e)    inspection of the document or thing will assist the applicant in deciding whether to commence proceedings[6].

The proposed requirement for an order that “there are reasonable grounds to believe that there may be a right” is a much lower standard than “the applicant is entitled to make a claim for relief”. Additionally, the Bill seems to remove all the other current requirements for an order. These changes will significantly and unacceptably impair the right to speak online by deterring people from expressing their views for fear of being exposed.

It is useful to compare the law in Australia with the law in the United States, where of course speakers have the benefit of the First Amendment to their constitution. The Supreme Court of the United States has long recognised the importance of anonymity as a feature of the right under the First Amendment to freedom of speech. Notwithstanding that, the position in the United States in relation to obtaining Court orders for the disclosure of the identity of an anonymous poster of material on a social media platform is not very different from that in Australia.

There does not appear to be any Supreme Court decision on this topic but there is a well-developed regime at the State level, which varies from State to State but almost always has the following elements.[7]

First, the plaintiff “must identify the party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued.” This identification need not be the party's real name but could be accomplished by showing that online aliases point toward a real person. Second, the plaintiff must demonstrate a good faith effort to locate the identity of the anonymous defendant.

Third, and key, the plaintiff must establish to the Court's satisfaction that the suit would survive a motion for, what we could call, summary judgment.

An additional requirement in some States is that the reviewing Court should “balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed[8]

Other States expand on the requirements slightly as follows: the plaintiff must make reasonable efforts to inform the anonymous defendant that he or she is the subject of a subpoena or Court order; allow the defendant time to respond; and, in the case of online defamation actions, post a message to the platform notifying the anonymous defendant about the discovery application.[9]

So clearly the law in the United States and the law in Australia is not that different. The main difference is those States that require the applicant to demonstrate that their proceeding outweighs the Free Speech rights of the anonymous person. In our view this requirement should form part of the Australian Law[10].

Having said that, we oppose any watering down of the existing requirements for obtaining an order identifying an anonymous poster. Therefore, we oppose these provisions.

4. Finally, if a social media service has at least 250,000 Australian account holders the proposed law will require them to ensure that there is a body corporate in Australia or an agent in Australia that has the contact details of the end users who post comments

The first issue we would raise with this proposal, is a practical one. How are social media providers going to police the accuracy of the information provided by the user? The user could supply a pseudonym or quite simply false information.

It is our view that to protect the rights of anonymous speech on the Internet and privacy, this provision should not proceed. In this regard, we note the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue to the United Nations General Assembly dated 16 May 2011, in which he calls upon States to ensure that individuals can express themselves anonymously online and to refrain from adopting real-name registration systems.

We trust this is of assistance to you in your deliberations.

[1] TM Scanlon A Framework for Thinking about Freedom of Speech, and Some of its Implications. Page 13 A lecture delivered in 2018 and found at   https://www.law.berkeley.edu/wp-content/uploads/2018/10/Freedom-of-Speech-Berkeley.pdf

[2] Scanlon ibid 17-20, Kate Klonick, “The New Governors: The People, Rules, and Processes Governing Online Speech” (2018) 131 Harvard Law Review 1598 at 1610-13. The Californian Constitution has a free speech right that is not by its terms limited to the government. It has been held to apply to places such as shopping centres that have “become the functional equivalent of a traditional public forum” such as a park or public square - Robins v. Pruneyard Shopping Ctr., 592 P.2d 341, 344 and Albertsons, Inc. v.Young  107 Cal. App. 4th 106 at 108, (2003)

[3] We note that contrary to the impression given by the government in the media, this legislation says nothing about bullying or harassment on the Internet. It simply deals with defamation. Accordingly, the comments in this submission relate to cases of defamation on the Internet. Issues relating to inciting illegal activity, causing psychological harm through personal insult and harassment, and making obviously false and misleading claims about important matters are not considered here

[4]The extent to which the law should interfere to force changes to the terms and conditions of social media platforms to secure freedom of speech is a more difficult issue in respect of which we reserve our opinion

[5] Applications for preliminary discovery against providers such as Google Inc, Facebook Inc and Twitter Inc, which are all incorporated in the United States, may face difficulties. These sites are subject to the Stored Communications Act (US). This Act prohibits electronic communication service providers from disclosing electronically stored data of a private nature to any non-government entity without the consent of the account user or subscriber. Nevertheless, these sites may provide basic subscriber information such as the identity of the user to a party to civil litigation where a subpoena is validly issued Patrick George et al Social Media and the Law 3rd edition Lexis Nexis Australia 2020 paras 7.110-113

[6] Ibid paras 7.139,145 

[7] What follows is taken from Anonymity, Disclosure and First Amendment Balancing in The Internet Era: Developments in Libel, Copyright, and Election Speech Yale Journal of Law and Technology, Vol. 15 [2013] page 93 at 107-8

[8] Ibid 111 see also the recent decisions of Glassdoor, Inc. v. Andra Group, LP, 560 SW 3d 281 (2017) and Fazlul Sarkar v John Doe, Nos. 326667 and 326691 Michigan State Court of Appeals 6 December 2016

[9] Ibid 109-110

[10] It's quite arguable that in a State such as Queensland with its Human Rights Act the effect of that Act maybe to import such a requirement into the law of Queensland in this context.