Australia will force social networks to identify trolls, so they can be sued for defamation

Australia’s government has announced it will compel social media companies to reveal the identities of users who post material considered defamatory.

Prime minister Scott Morrison phrased the planned legislation as creating a power “to unmask anonymous online trolls”.

The effect of the planned law will be to put social networks in the same legal position as publishers – liable for whatever material they carry if it is defamatory, even if it was written by a third party. More on that later.

“Anonymous trolls are on notice, you will be named and held to account for what you say. Big tech companies are on notice, remove the shield of anonymity or be held to account for what you publish,” states the PM’s press release. That document goes on to explain that if social media companies reveal the identity of users that have made allegedly defamatory comments, whoever posted the contested material can become the subject of a defamation action rather than the companies.

Just how social media companies will be made to identify users was not explained, nor has a bill been posted that would shed light on how the law would operate – but an “exposure draft” of the law was promised “in the coming week” ahead of a consultation process.

In weekend interviews, ministers offered no explanation of whether the bill would compel social media operators to collect or validate contact data. Whether the bill will apply to existing social media accounts was also left unexplained, as was how social media companies could be treated if users provide false contact information or let contact details lapse over time.

Social media companies are, at the time of writing, silent on the matter. Presumably, they’re waiting for waiting for US-based colleagues to emerge from post-Thanksgiving food comas.

Accompanying the troll-stopping plan was a pledge to legislate so that Australian publishers are no longer liable for defamatory comments made on their social media presences. In August 2021, Australia’s High Court found publishers were responsible for defamatory comments posted in response to story links posted to Facebook. Attorney-general Michaelia Cash argued that ruling leaves any Australian organisation at the mercy of trolls who, by posting defamatory content to an organisation’s social media presence, could smear their target but leave the organisation liable for their comments.

The combination of that move and the troll-unmasking legislation proposed for social media creates an obvious conflict. If social media companies are treated as publishers, but publishers are shielded from the consequences of troll posts, what is the net effect?

Australia’s government has taken on big tech, and won – twice. The first win came after it swiftly organised an international response to the live-streaming of a mass murder committed by a racist attacker in New Zealand. Faced with overwhelming evidence they had allowed an utterly hateful act to be broadcast, and then widely shared, social media operators swiftly agreed to improve content filtering.

The other win came with a law that requires Facebook and Google to pay local news publishers for the right to link to their content (Indonesia’s government last week floated laws based on Australia’s). Both Facebook and Google protested, vociferously, that the proposal was unworkable before eventually backing it.

The Register expects a similar response this time, as social networks defend users’ rights to anonymity, and perhaps mention that China is the only nation that currently requires the use of real names for all online accounts (along with some South Korean websites).

Australia’s federal parliament rises for the summer break this week, and Parliamentary sitting dates for 2022 are yet to be determined. The exposure draft is therefore unlikely to be ready for a vote for months. ®

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