The Australian government is set to introduce some of the toughest “anti-troll” legislation in the world, but experts say its focus on defamation will not help curb the rates of online bullying or cyberhate.
On Sunday prime minister, Scott Morrison, announced his government would introduce legislation to parliament this week that would make social media companies reveal the identities of anonymous trolling accounts and offer a pathway to sue those people for defamation.
Under the legislation, the laws would require social media companies to collect personal details of current and new users, and allow courts to access the identity of users to launch defamation cases.
It is unclear what personal data would be collected, but there are indications it would include a phone number, email address and user’s contact name.
In a huge overhaul, the legislation would also change who is responsible for defamatory posts, from organisations that run the pages – such as news organisations – to the social media companies themselves.
On Sunday Morrison said he wanted to ensure consistency between real-world rules and those online.
“The rules that exist in the real world must exist in the digital and online world,” he said.
“The online world shouldn’t be a wild west, where bots and bigots and trolls and others can anonymously go around and harm people and hurt people.”
But cyberhate expert and author of the book Troll Hunting, Ginger Gorman, said the legislation will not do enough to combat online abuse.
“Overall I’d say this is far too little too late – so much real harm has already been done. And this doesn’t go far enough,” Gorman said.
“The government must legislate a duty of care so the public has to be kept safe by the platform,” she said.
“They are continually publishing egregious content and have no accountability for this.”
She said Germany, where companies platforms can be fined up to €50m if they do not delete posts containing racist, defamatory or otherwise illegal speech within 24 hours, showed governments could take serious action.
“Media companies have shown over many decades that they will not fix this on their own.
“So governments need to legislate to break them up, cut up their power and enforce a public duty of care.”
Under the legislation, social media companies would have to set up a complaints process, where people can ask for the content to be taken down if they feel it is defamatory towards them.
If the post is not taken down, the user can ask for the personal details of the person who posted the content.
If they do not agree to release them, a court order can be made, forcing the company to release them – and opening up an avenue for the complacent to sue for defamation.
Morrison said the government would support the initial cases, to help set a precedent.
“We will be looking for test cases that can reinforce these laws,” he said.
“So if the digital companies or others think they’re only just going to have to be dealing with perhaps someone of little means seeking to pursue this, then we will look for those cases.
“We will back them in the courts and we will take them on.”
At the centre of the legislation is the ability for individuals to pursue a case against the poster of the content, if they feel they have been defamed.
University of Melbourne’s Dr Lauren Rosewarne said defamation is easier to determine than trolling and hate.
“Defining some of these terms: things like “online hate” and “trolling” are subjective,” she said.
“For example, are repeatedly expressed, strongly worded opinions that differ from yours trolling? Some people would say yes, others would say no.”
One of the key issues of the proposed legislation is the collection of personal data and the complexities that come with that, she said.
“Who is going to pay for the verification? If the data isn’t actually verified then I imagine the most problematic social media users will simply enter fraudulent details without many deterrents.”
Currently, social media companies have only offered “lacklustre responses” to allegations of trolling, she said.
“With many complaints noting that invariably they just get an automated response from the social media company and nothing is done. Users want a more proactive approach but such an approach is resource-intensive.”
In September, the high court ruled Australian media companies could be liable for defamatory comments posted on Facebook pages after Fairfax and Newscorp lost their appeal to escape defamation charges after third-party comments were made on their social media posts about Dylan Voller.
The Australian Law Council was quick to support the proposed shift in responsibility.
Law Council of Australia President, Dr Jacoba Brasch QC said care needs to be taken to ensure an appropriate balance between freedom of expression and the protection of personal reputation.
“In the Law Council’s view, a legislative framework that shifts responsibility towards originators will assist in achieving this balance,” Brasch said.
“However, it is important too, to recognise that intermediaries are responsible for their participation in the online environment and often profit from the network effects of their pages or platforms.”