Cth Bill Proposes New Social Media Laws

The Social Media (Anti-Trolling) Bill 2022 (Cth) (the “Bill”) was introduced to the House of Representatives on 10 February 2022, by Minister for Communications, Urban Infrastructure, Cities and the Arts Paul Fletcher (the "Minister").

On the same day, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee. The Bill is yet to pass the lower house.

Background

According to the Bill’s Explanatory Memorandum (the “EM”), the purpose of the Bill is to “create a novel framework to regulate defamatory content posted on social media”. The Bill was first released as an exposure draft for public consultation last year.

The Bill proposes that owners and administrators of social media pages (“page-owners”) are not to be classified as the publishers of third-party material. Rather, social media service providers will be considered to be the publisher of materials published on their service, if it is posted in Australia.

The Bill seeks to address issues raised in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (the "Voller decision"). The case clarified that individuals and organisations with social media pages, where third party material can be posted, may be considered as publishers of that material for the purposes of defamation law. It also provided social media service providers with a conditional defence in defamation proceedings in relation to material posted in Australia.

The Attorney-General’s Department noted in the Bill's draft explanatory paper that the Voller decision shows that Australians who:

Brief Outline of the Bill

The EM outlines that Part 2 of the Bill contains proposed amendments provides that an Australian person who:

This Part also clarifies that, for the purposes of the general law of the tort of defamation, social media service providers are deemed publishers of the material posted on their service, if the material was posted in Australia.

Part 3 of the Bill seeks to establish a framework for End-user Information Disclosure Orders (“EIDOs”). These a new form of court order, which may be obtained from an Australian court that has jurisdiction to hear a substantive defamation proceeding.

Part 4 of the Bill seeks to introduce new requirements for a social media service provider that is a body corporate incorporated in a foreign country. Such providers must meet specified thresholds in order to be able to establish an Australian incorporated entity, known as the “nominated entity”. These entities being an agent of the provider and located in Australia.

Part 5 of the Bill seeks to allow the Attorney-General to intervene in matters proposed by the Bill, or in Federal defamation proceedings when a social media service provider is party.

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Social Media (Anti-Trolling) Bill 2022 (Cth) and supporting information available from TimeBase LawOne Service