In response to the growing issue of on-line trolls engaging in defamation without being identified, the Australian government seeks to introduce anti-troll legislation that effectively:

1. amends Defamation Laws to mean that those who operate or maintain a social media page are not publishers of comments made by others.
2. requires global social media platforms to establish a quick, simple and standardised complaints system that ensures defamatory remarks can be removed.
3. a new Federal Court order will be established that requires social media giants to disclose identifying details of trolls to victims, without consent, which will then enable a defamation case to be lodged.

Whilst we welcome some of the changes, our overall concerns are the amendment to the Defamation Laws to allow page owners to wash their hands of the issue.

The first request by those defamed online is that they want the material removed. Where the commenter cannot be readily identified but the page owner can be identified, it allows pressure to be placed on the page owner by issuing a concerns notice. Now, those page owners may not respond to concerns as they may feel they have immunity.

We would have preferred to see a notification system whereby they are given time to remove the material after which time they are liable.

After the amendments to the legislation all that is left for a victim is for it to take the matter up with the social media provider, which can be slow, cumbersome and unfruitful, or seek identification of the commenter and negotiate removal.

Complainants do not always want to take legal action. Now as one of those who could remove the material is removed from those liable, they will have to negotiate between a large organisation that may simply refuse to remove the material and the troll that published the material.

We note that the requirements on social media providers states that they must “ensure” the material is removed, but who makes the decision as to whether it should be removed. In our experience social media providers wish to be the decision maker and at times will simply refuse to remove material and then refuse to comment further.

The exposure draft is available here.