E&OE

Topics: Social media defamation laws

NADIA MITSOPOULOS: The Federal Government is promising to bring in new laws which could force social media companies to unmask anonymous trolls, allowing you to get hold of their contact details but that will only be possible in certain circumstances and there is doubt about how effective these laws are going to be. The Federal Attorney-General is WA Senator Michaelia Cash and I spoke to her about this a little earlier this morning. I had to speak to people a bit earlier than usual because they’re all so busy. We’ll have a listen. This is Michaelia Cash. You tell me what you make of it. Attorney. Good morning.

MINISTER CASH: Good morning and great to be with you.

NADIA MITSOPOULOS: Let’s look at online trolls. You’ve promised new laws to unmask anonymous trolls online. But these laws are only focusing on defamation so they won’t be any use to people who are being bullied or harassed will they?

MINISTER CASH: Look that’s in relation to the work, what you’re talking about, that we’ve done in the Online Safety Act and Paul Fletcher has done a body of work in that regard, and in particular working with Julie Inman Grant, the Online Safety Commissioner. So for that, that that’s where you’ve got comments online that harass you, that intimidate you, that threaten you. And the work we’ve done there with Julie Inman Grant, in particular, is in relation to takedown orders. Jump forward to my work though, this is actually a world first. The Morrison Government introducing these new powers and what we’re going to do is force global social media giants to unmask anonymous online trolls. Our focus, better protecting Australians online and I think, you know, from all of the conversations that Australians have had for some time now, you know, for too long, trolls, bots, bigots, they’ve flourished online behind a digital curtain of anonymity. And we say enough is now enough. And social media giants, they need to step up.

NADIA MITSOPOULOS: Okay so how does it work, though? Do those comments still need to be defamatory?

MINISTER CASH: So in the first instance, there are two things the legislation is going to do. One of them actually is something that was raised by many journalists with us around the country as a result of the Voller decision. So in the first instance, we will provide certainty and clarify who a publisher of defamatory comments on social media is, because if you recall, following the Fairfax Media and Voller decision, the high court basically said, even a social media user, so you and me, Nadia, the plumber down the road in Perth, we could be liable for those defamatory comments on our social media page, even though they were made by a third party. So the legislation will deem social media providers to be the publisher of defamatory comments on their platform, that’s going to bring a lot of relief, in particular to just average Australians and small businesses. Secondly, we’re going to protect Australian social media users from potential liability, the defamatory comments made by online trolls, bearing in mind that in Paul Fletcher’s communications and cyber security space that deals with the online cyber security abuse, when you jump into my legal space, this is where we deal with the potentially defamatory commentary.

NADIA MITSOPOULOS: Okay, so if I get, say a nasty message that isn’t made public say if it comes into my inbox, or it comes in as a direct message, are these laws going to apply to that sort of abuse?

MINISTER CASH: Well, it completely depends on whether or not there was publication and dissemination of the comments. So for example, someone goes on to a social media page and puts down a comment that you and I can both see, the complainant says, hey, hold on, I think that is actually a defamatory comment on me. So in the first instance, what we’re going to do is empower the victim of the defamatory online comment to work with the social media company to unmask the identity of the anonymous online troll. This does need to be done with the consent of the troll, if they consent, and the social media company can say to you, that was actually Michaelia Cash, they will get a defence to defamation. In the event that that is not possible, you will be able to go to the Federal Court and seek a new form of court order called an end user information disclosure order. And basically that’s the court saying we are now going to help you unmask the originator of this comment. So this is all about giving power back to Australians online, telling trolls and social media companies, you are on notice for this behaviour, but also ensuring that Australians, because we are online, we’ve got to be honest, we all are online, but we need to ensure we have plenty of protections online, so it’s a safe space.

NADIA MITSOPOULOS: Okay, a couple of things there. I’m speaking this morning to the Attorney-General Michaelia Cash on ABC Radio, Perth and WA. So two pathways there realistically, though, how many trolls do you think who are actually going to give their consent to be identified?

MINISTER CASH: Well, I think in the first instance, when you work through the complaints mechanism, I tell the social media company, I believe there’s a defamatory comment been made about me online, they have to go straight to the commentator, and let them know that, and then they’ve got to tell me, they’ve done that. I can also then get the country location data, if the comments being made in Australia, I can then potentially take action.

NADIA MITSOPOULOS: Which means going to court, which again, is expensive.

MINISTER CASH: I’ll take you through that in a minute. What you often find, though, is this, people actually just want the comment taken down, and the social media company can go to the troll and say, you’ve got a potential defamation action against you, this person just wants you to take it down and with their consent, you can take the information down, and often –

NADIA MITSOPOULOS: Can’t you already do that, Attorney-General, can’t you already asked someone to take down a comment?

MINISTER CASH: Well, this is because you believe it is a potentially defamatory comment, and the social media company is encouraged to work with you. Because if they can actually get it taken down, they may well then have a defence to defamation. But if you are not happy with that, you can actually then go back to the social media company and say, no I actually want to take this forward, and seek better information so that you can serve the online troll. Now with consent, because it is also about balancing freedom of speech, Nadia, as you know. The social media company may be able to provide you with that information. If they are not able to though, you go straight to the court, you get the end user information disclosure order. But what we have also proposed to set up is this, the Attorney-General will be able to intervene in appropriate cases. And that is, of course, to back in the person who is making the defamation claim, and to ensure that social media companies know, the law is not settled here, and we need to ensure that anything that is being questioned, you actually have the Commonwealth providing you with advice on. So in appropriate cases, this may support victims to help, you know, address the imbalance of power with social media companies. But it will also at the same time in relation to I think what is recognised as being an unsettled area of law, allow the Commonwealth to put views on how the Commonwealth legislation should be applied. And it may also mean that the Commonwealth is able to pay the reasonable costs of the applicant as well.

NADIA MITSOPOULOS: Attorney-General Michaelia Cash is my guest this morning. Okay, what is there to stop this law potentially being misused, by say a whistleblower or I don’t know, for instance, a domestic violence perpetrator, for example, to get the contact details of the victim? They could just claim they’re being defamed. Are there issues there?

MINISTER CASH: Absolutely, in the event that the social media company themselves believes that a person is utilising the app in a bad way, they do not have to provide the information. In the same way it is clearly provided for in the legislation, that the court themselves may refuse to make one of the end user information disclosure orders if they are satisfied that the disclosure of the contact details or country location at data is likely to present a risk to the commentators safety. So it’s a very good question to raise. And we have factored that into the legislation itself. And certainly, in section 16, of the draft legislation for the social media company. We give the guidance that if the social media provider reasonably believes that the defamation complaint with the request does not genuinely relate to the potential institution by the complainant of a defamation proceeding against the commenter, they do not have to provide the information. So again, we have factored this into the legislation.

NADIA MITSOPOULOS: Attorney-General finally, what about the prospect then that social media companies will seem to simply pull out from Australia or shut off the ability to comment all together? Could that happen?

MINISTER CASH: Australia is a pretty big market for social media companies. But you know, social media companies understand they do need to operate in Australia, and when you look at the global conversations, they have introduced a medium that can easily be exploited by users to cause harm to others. And I believe social media companies, they are well on notice that community expectations are that their service is going to be subject to liability. As is this case, we are deeming them to be the publisher for their role in spreading and promoting such harms. And they know now that they do need to take action. But again, there’s a lot of social media users in Australia. They may make threats, but to date, we’re pretty much a market they want to be in but they need to be in this market safely.

NADIA MITSOPOULOS: I’ll leave it there. Thank you so much for your time.

MINISTER CASH: Good on you. Thanks, Nadia.

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