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2019-2020-2021-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Social Media (Anti-trolling) Bill 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable Michaelia Cash)
SOCIAL MEDIA (Anti-Trolling) BILL 2022
General Outline
The Social Media (Anti-Trolling) Bill 2022 (the Bill) creates a novel framework to allow Australians to respond to defamatory content posted on social media.
The Bill will address the issues raised by the High Court’s decision in Fairfax Media Publications v Voller [2021] HCA 27 (Voller ), which made clear that individuals and organisations with social media pages on which third party material can be posted may be ‘publishers’ of that material for the purposes of defamation law.
The Bill will also provide new mechanisms for Australians to ascertain whether potentially defamatory material on a page of a social media service was posted in Australia and, if so, to obtain the relevant contact details of the poster. This will empower Australians to institute defamation proceedings in relation to the poster.
In particular, the Bill will:
· deem a person who administers or maintains a social media page not to be a publisher of third-party material and thereby be immune from potential liability under defamation law
· deem the social media service provider to be the publisher of material published on their service that is posted in Australia for the purposes of defamation law
· create a conditional defence for social media service providers in defamation proceedings that relate to material on their service that is posted in Australia if the provider:
o has a complaints scheme that meets certain prescribed requirements
o if a complaint is made—complies with the scheme
o has a nominated entity in Australia
o if requested under the complaints scheme—provides the relevant contact details of the person who posted the material said to be defamatory, to assist prospective applicants to identify and commence proceedings against the poster, and
o if ordered to do so by a court pursuant to an end-user information disclosure order (EIDO)—provides the relevant contact details of the person who posted the material said to be defamatory, to assist prospective applicants to identify and commence proceedings against the poster
· empower courts to issue EIDOs, which require providers of social media services to give the applicant relevant contact details and country location data in certain circumstances
· require social media companies to have a nominated entity incorporated in Australia that will be able to discharge key obligations under the Bill, and
· enable the Attorney-General to intervene in defamation proceedings on behalf of the Commonwealth, in certain circumstances, and authorise a grant of legal assistance.
Australians can be the subject of defamatory material posted on social media. The challenges presented by defamation over social media are particularly acute, given the speed at which such material can spread and the limited scope to contain the spread of a defamatory post once it has been published on a social media network. Where such material is posted anonymously, complainants may have limited ability to identify the poster, and the capacity to seek vindication by commencing defamation proceedings may be limited.
Outline of the Bill
Part 1 of the Bill deals with introductory matters including commencement, definitions, when material is posted in Australia and the Bill’s interaction with the general law of the tort of defamation, and state and territory defamation laws. Part 1 clarifies that the Bill is intended to operate in conjunction with the current (and future) corpus of defamation law from all of its sources, except to the extent modified by the Bill.
Part 2 of the Bill provides that an Australian person who maintains or administers a page of a social media service is taken to not be a publisher of third-party material posted on the page for the purposes of the general law of the tort of defamation, and thereby cannot be liable in defamation for the posting of that material. Part 2 of the Bill also clarifies that, if material is posted in Australia, social media service providers are deemed publishers of the material posted on their service for the purposes of the general law of the tort of defamation. This applies both to material posted by account holders on a page which they maintain or administer (page owners), and to material posted on a page which another individual administers or maintains. Part 2 of the Bill also provides a conditional defence for social media service providers in defamation proceedings that relate to material posted on their platform, provided the material is posted in Australia. Social media service providers will benefit from the defence where they meet conditions specified in the Bill. Part 2 also sets out the prescribed requirements for the complaints scheme.
Part 3 of the Bill establishes a framework for EIDOs. EIDOs are a new form of court order which may be obtained from an Australian court that has jurisdiction to hear a substantive defamation proceeding, and from Division 2 of the Federal Circuit and Family Court of Australia. EIDOs will allow an applicant to obtain country location data in relation to material posted on a social media service and, if the material is posted in Australia, obtain the poster’s relevant contact details. Part 3 clarifies that the jurisdiction to grant EIDOs does not otherwise affect the jurisdiction of the Federal Circuit and Family Court of Australia to hear and determine substantive defamation cases.
Part 4 of the Bill requires a social media service provider that is a body corporate incorporated in a foreign country and meets specified thresholds to establish an Australian incorporated entity, known as the ‘nominated entity’, that is an agent of the provider and has an office in Australia. The nominated entity is required to have access to country location data and relevant contact details of posters in relation to material posted in Australia, and has authority to receive complaints and requests under the complaints scheme. The obligation to establish a nominated entity is enforceable by a civil penalty provision, and establishing a nominated entity is also a prerequisite for accessing the conditional defence under Part 2 of the Bill.
Part 5 allows the Attorney-General to intervene in matters arising under the Bill, or in defamation proceedings to which a social media service provider is party, where the proceedings are before a court exercising Federal jurisdiction. Where the Attorney-General chooses to intervene the Commonwealth is taken to be a party to the proceeding, and the court may award costs orders against the Commonwealth as it sees fit. Under this Part, the Attorney-General may also authorise payment to the applicant by the Commonwealth for costs reasonably incurred in relation to the proceeding.
FINANCIAL IMPACT
The proposed legislation would include provisions enabling the Commonwealth to intervene in matters in the public interest and to support applicants to meet the costs of legal proceedings when the Commonwealth intervenes. Any request for legal assistance would be considered in accordance with guidelines made by the Attorney-General. There may also be resource implications for the federal courts. Funding for these measures would be sought through the 2022-23 MYEFO context.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Media (Anti-Trolling) Bill 2022
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
Overview of the Bill
The purpose of the Bill is to create a novel framework to regulate defamatory content posted on social media.
The Bill will address the issues raised by the High Court’s decision in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 ( Voller ), which made clear that individuals and organisations with social media pages on which third party material can be posted may be ‘publishers’ of that material for the purposes of defamation law.
The Bill will deem owners and administrators of social media pages (page-owners) not to be publishers of such third-party material, and deem the social media service provider to be the publisher of such material that is published on their service if it is posted in Australia.
The Bill will also provide social media service providers with a conditional defence in defamation proceedings in relation to material that is posted in Australia. In order to have the benefit of the defence, social media service providers are required to have a complaints scheme that meets certain prescribed requirements, comply with the scheme in the handling of any complaints, and have an incorporated entity which is based in Australia. Among other things, the complaints scheme allows a complainant to request relevant contact details of the poster, and authorises the social media service provider to disclose those details if the poster consents. If requested under the complaints scheme, a social media service provider can access the conditional defence if they have disclosed the relevant contact details of the poster to the applicant. Similarly, if a court grants an end-user information disclosure order (EIDO) directing the social media service provider to disclose the applicant the poster’s relevant contact details to the applicant, the provider must comply with the order to access the conditional defence.
The Bill empowers the courts to issue an EIDO to social media service providers, which will require them to disclose country location data in relation to material posted on a social media service and, if the material was posted in Australia, the relevant contact details of the poster. The Bill requires social media companies to have a nominated entity incorporated in Australia capable of discharging key obligations under the Bill.
The Bill also enables the Attorney-General to intervene in defamation proceedings in federal jurisdiction to which a social media service provider is a party, and in matters arising under the Bill. The Attorney may also authorise the payment of reasonable costs to applicants in certain circumstances.
Human rights implications
The principal human rights that the Bill engages are:
· the right to freedom of expression primarily contained in Article 19 of the International Covenant on Civil and Political Rights (the ICCPR), and also referred to in Articles 12 and 13 of the Convention on the Rights of the Child (the CRC) and Article 21 of the Convention on the Rights of Persons with Disabilities (the CRPD);
· the prohibition on interference with privacy and attacks on reputation primarily contained in Article 17 of the ICCPR, and also referred to in Article 16 of the CRC, and Article 22 of the CRPD.
These rights, and how they are engaged by the Bill, are discussed below.
Freedom of expression
Rights relating to freedom of expression are recognised and protected by Article 19 of the ICCPR and by Articles 12 and 13 of the CRC.
Paragraph 1 of Article 19 of the ICCPR recognises that everyone shall have the right to hold opinions without interference. Paragraph 2 states that everyone shall have the right to freedom of expression. Paragraph 3 of that article recognises that the exercise of this right may be subject to certain restrictions. Paragraph 3 of Article 19 of the ICCPR and paragraph 2 of Article 13 of the CRC limits the types of restrictions that may be imposed to such restrictions as are provided by law and are necessary either for respect of the rights or reputations of others or the protection of national security, public order, health or morals.
The right to freedom of expression is counter-balanced against the prohibition on interference with a person’s right to privacy and attacks on their reputation under Article 17 of the ICCPR and related conventions. People also have the right to protection from exploitation, violence and abuse, as provided by Article 20(2) of the ICCPR and related conventions. Serious harms can result from defamatory material posted on social media, and the potential impacts this can have on a person can be long lasting and devastating.
Potential defamation liability as a publisher
The High Court’s decision in Voller made clear that individuals and organisations with social media pages on which third party material can be posted may be ‘publishers’ of that material for the purposes of defamation law, and thereby potentially exposed to defamation liability. Such potential liability could arise even where page owner is not aware of the comments made on their social media page.
The Bill will provide that page owners are not ‘publishers’ of material posted on their page by third parties, for the purposes of defamation law. This will mean page-owners do not face potential defamation liability for material posted by others, and thereby give assurance that page-owners do not take on defamation liability risks if they permit comments and other material to be posted. The Bill thereby facilitates community engagement and debate, and promotes freedom of expression.
The Bill will establish mechanisms for Australians who have been the subject of defamatory material posted on a social media service to obtain the poster’s relevant contact details. To the extent that these mechanisms deter the anonymous posting of defamatory material on a social media service, the Bill may impact on the right to freedom of expression. However, this approach is consistent with the balance between freedom of expression and the prohibition on interference with a person’s right to privacy and attacks on their reputation under Article 17 of the ICCPR and related conventions
Content removal
The complaints scheme in Part 2 of the Bill is neutral with respect to the removal of material posted on a social media service. While the Bill makes clear that a social media service provider may remove material with the poster’s consent, access to the conditional defence from defamation liability is not dependent on takedown of defamatory content; nor is there any requirement for continued publication. Similarly, the EIDO mechanism is not contingent on takedown, and the Bill incentivises neither takedown nor continued publication through the EIDO mechanisms. In these respects, the Bill does not impact on freedom of expression.
Protection from unlawful attacks on honour and reputation
Article 17 of the ICCPR recognises, among other things, the right not to be subjected to unlawful attacks on honour and reputation. Article 16 of the CRC and Article 22 of the CRPD contain similar rights.
Defamatory content interferes with a person’s honour and reputation. Defamatory material published on social media can be relatively more harmful than equivalent material published through traditional media outlets, given the propensity of social media to rapidly spread commentary. Moreover, aggrieved individuals may not be in a position to vindicate their reputation where the harmful material is posted from an anonymous account.
The Bill addresses these issues by requiring social media service providers to have, and adhere to, the prescribed requirements of a complaints scheme, clarifying who is held liable for defamatory content made on social media, and facilitating the identification of perpetrators to assist in pursuing remedy. In doing so the Bill advances the right of individuals to be free from attacks to their honour and reputation.
Content removal with consent
The complaints scheme in the Bill is neutral with respect to the removal of material posted on a social media service. While the Bill makes clear that a social media service provider may remove material with the poster’s consent, access to the conditional defence from defamation liability is not dependent on takedown of defamatory content; nor is there any requirement for continued publication. Similarly, the EIDO mechanism is not contingent on takedown, and the Bill incentivises neither takedown nor continued publication through the EIDO mechanisms. At the same time, the Bill does not affect existing mechanisms to effect takedown of defamatory material. In these respects, the Bill has does not impact on the protection from unlawful attacks on honour and reputation.
Liability
The Bill appropriately centres defamation disputes regarding material posted on social media between the complainant and the poster. By creating a mechanism to enable complainants to obtain the relevant contact details of the posters of defamatory material, complainants are able to make an informed decision to commence defamation proceedings, and are empowered to seek remedy from the poster of the harmful commentary.
To the extent that the Bill makes clear that posters may not be able to rely on anonymity to limit the risk of being held accountable for defamatory material they post online, and are thereby discourage from doing so, the Bill is consistent with the right not to be subjected to unlawful attacks on honour and reputation.
Protection from arbitrary or unlawful interference with privacy
Article 17 of the ICCPR recognises the right to be free from arbitrary or unlawful interference with their privacy, family, home or correspondence. Article 16 of the CRC and Article 22 of the CRPD contain similar rights. The measures in the Bill engage a person’s right to privacy by causing a social media service provider to collect and disclose personal information of its users.
The Bill will enable a social media service provider to disclose personal information when a potentially defamatory comment is posted on its service. In order to access the conditional defence, the Bill incentivises a social media service provider to disclose to a complainant information regarding whether the poster appeared to be in Australia at the time material was posted and, in relation to material posted in Australia and provided the poster consents, the poster’s ‘relevant contact details’. The Bill also obliges a social media service provider to disclose the same personal information to a complainant in response to an EIDO issued by a court.
Although there is no provision in the Bill expressly requiring the collection of personal information, social media service providers who wish to access the conditional defence may regard this as an incentive to pre-emptively collect additional personal information of their users, to ensure the social media service provider is in a position to access the defence and thereby ensure it is not liable for defamatory material posted on its platform.
The articles do not set out the reasons for which the guarantees may be limited. However, limitations contained in other articles are those which are necessary in a democratic society in the interests of national security, public order, and the protection of the rights or freedoms of others, might be legitimate objectives in appropriate circumstances. In any event, limitations on privacy must be authorised by law and must not be arbitrary.
The measures in the Bill that enable a social media service provider to disclose country location data and relevant contact details serve a legitimate objective and strike a reasonable, necessary and proportionate balance between competing policy objectives. Specifically, the disclosure of this personal information allows aggrieved persons who have been the target of potentially defamatory material posted on social media to commence proceedings in a court against the poster, and to make informed decisions whether such proceedings should be pursued at all (eg: where it becomes apparent that material was not posted in Australia, and accordingly that enforcement of any defamation judgment may not be feasible). This is a legitimate policy end which requires the disclosure of personal information to be effective.
The Bill also includes limitations and safeguards to minimise the impact on privacy as much as possible.
· First, the disclosure mechanisms are only enlivened where there is reason to believe that there may be a right for the complainant to obtain relief against the poster in a defamation proceeding. This is supported by a provision which makes it clear that the social media service provider is not required to take any action if it reasonably believes a complaint or request does not genuinely relate to the potential institution of defamation proceedings. Accordingly, the Bill only enables the disclosure of personal information when a potentially defamatory comment has been posted on a social media service, and not in any other circumstances.
· Second, the definition of ‘relevant contact details’ is narrowly drafted to include a person’s name (or the name by which they are known), e-mail address, telephone number and such other information as is specified in legislative rules. The purpose for disclosing this information is to enable defamation proceedings to be commenced, including by way of substituted service if authorised by a court. As the means of substituted service are not prescribed and can be determined by a court in light of the circumstances of a case, the Bill enables the disclosure of the minimum personal information that is likely to be necessary to satisfy a court that the poster is aware of the legal proceedings (and thereby in a position to take such steps as he or she thinks appropriate in response). The Bill does not enable the disclosure of a person’s address, physical location (other than an indication whether material was posted from Australia), or any other details.
· Third, relevant contact details can only be disclosed with the poster’s consent, or pursuant to a court order.
· Fourth, the only information that can be disclosed without consent or a court order is country location data, which is also narrowly defined to only encompass whether the person appeared to have been located in Australia or outside of Australia when posting the material.
Similarly, to the extent that the Bill incentivises social media service providers to pre-emptively collect personal information of its users, this is reasonable, necessary and proportionate to achieve the Bill’s legitimate policy ends. As elaborated above, disclosure of relevant contact details is necessary for the mechanisms in the Bill to be effective, and social media service providers having access to that information is necessary to allow disclosure to be effective. Social media service providers are already able to collect personal information about their users for a range of purposes, subject to complying with relevant privacy obligations. Those same privacy obligations will continue to apply to any personal information incentivised to be collected in light of the Bill. As the Bill does not require collection of this information, a social media service provider is free to assess the most appropriate means of collecting personal information, in light of any incentive of the Bill, privacy obligations, and commercial and practical considerations.
In this way, the Bill takes a measured, balanced approach that pursues the legitimate object of empowering individuals who are the victim of reputational and emotional harm to make an informed decision when deciding whether to institute defamation proceedings and, if they decide to do so, to effect service (or seek an order for substituted service) in relation to legal proceedings.
Definition of contact information and material ‘posted in Australia’
The Bill requires that a social media service provider identify whether material was posted in Australia and, if so, to disclose the poster’s contact details, with consent or pursuant to a court order (and if the provider wishes to access the conditional defence from defamation liability). Geolocation data provided under the Bill is limited to whether or not a material was ‘posted in Australia’ by reference to geolocation technology deployed by the social media service provider. There is no requirement to provide any more information than a simple statement as to whether the poster appeared to be in Australia at the time the material was posted. Similarly, the term ‘relevant contact details’ is defined narrowly, to allow an aggrieved person to effect service of legal proceedings on the poster, or to seek an order for substituted service, if they decide to pursue legal proceedings in relation to the defamatory material.
Complaints scheme
The Bill contains provisions to ensure that the information about the poster which is disclosed under a complaints scheme is reasonable, necessary and proportionate to achieving the objective of allowing defamation proceedings to be commenced, thereby centring the dispute between the complainant and poster. The complaints scheme outlined in clause 17 requires the poster to be informed that the material is subject to a defamation complaint. As part of this process, social media service providers must advise whether the material was posted in Australia, for the purposes of assisting the complainant in relation to a potential defamation proceeding.
The poster’s relevant contact details may only otherwise be provided with the consent of the poster. This ensures social media service providers are not required to assess whether it is appropriate to disclose a poster’s relevant contact details without consent. Similarly, the drafting of the Bill requires the provider to seek consent each time the poster’s details are requested under the complaints scheme, ensuring that posters cannot ‘pre-consent’ to the disclosure of their contact details in agreeing to terms of service. These measures strike a balance between empowering complainants to address harms faced online, while ensuring that poster’s right to privacy is upheld.
EIDOs
Part 3 of the Bill authorises an Australian court that has jurisdiction to hear a substantive defamation proceeding, and Division 2 of the Federal Circuit and Family Court of Australia, to order a social media service provider to disclose whether the material was posted in Australia and, if so, the relevant contact details of the poster.
Independent judicial oversight will ensure that the Bill enables compulsory disclosure of country location data and relevant contact details only as a result of appropriate consideration, subject to the ordinary procedural safeguards of Australian courts. Importantly, the Bill makes clear that, in addition to its ordinary discretion to refuse to grant an order, the court may refuse to make an EIDO where doing so may present a risk to the poster’s safety. While there is no positive obligation on a court to undertake investigations to ascertain the impact of an EIDO on a poster’s safety, the legislation nevertheless makes clear that if there is information before the court to suggest that the poster’s safety might be at risk, the court may refuse to grant the order. This safeguard does not limit a court’s power to refuse to make an order under the section. (For example, a court may refuse to make an order where the potential claim in defamation would be trivial or prima facie untenable.) Importantly, the Bill also allows for legislative rules in relation to practice and procedure to be followed by the court in determining an application for an EIDO. This allows additional safeguards to be built into the EIDO process, if required, with sufficient flexibility to ensure the EIDO application process remains relevant and appropriate over time. Together, these measures ensure that only complainants who have a genuine claim to relief in defamation are provided with the contact details of poster pursuant to an EIDO, and that the application for the EIDO has appropriate procedural safeguards.
More broadly, the Bill envisages that a social media service provider will only disclose the poster’s contact details without their consent if authorised by an Australian court. This ensures that the poster’s right to privacy is protected from unwanted or unauthorised disclosure of personal information by a private entity.
Conclusion
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
The measures in the Bill promote the right to freedom of expression and protection from unlawful attacks on honour and reputation.
To the extent to which the measures in the Bill may limit the right to freedom of expression, and the right to privacy, any limitation is reasonable, necessary and proportionate to the goal of addressing the harm of defamation on social media.
NOTES ON CLAUSES
PART 1 - INTRODUCTION
Part 1 of the Social Media (Anti-Trolling) Bill (the Bill) deals with introductory matters including commencement, definitions, when material is posted in Australia and interaction with the general law of the tort of defamation.
Clause 1 - Short Title
Clause 1 provides that the Bill, when enacted, may be cited as the Social Media (Anti-Trolling) Act 2022 .
Clause 2 - Commencement
Clause 2 provides for the commencement of the Bill.
Subclause 2(1) provides that the provisions listed in column 1 of the table commence in accordance with column 2 of the table.
Clauses 1 and 2 of the Bill commence on the day the Bill receives the Royal Assent.
Clauses 4 to 12, 14 (which deals with liability for page owners) and 27 to 30 and 32 commence on a day fixed by Proclamation or, if proclamation does not occur, within 6 months beginning on the day the Act receives the Royal Assent. This ensures that, in the absence of a proclamation, the protection for page owners from potential defamation liability will commence within 6 months of the Royal Assent, together with relevant introductory and miscellaneous provisions.
The remaining substantive provisions of the Bill, relating (among other things) to the complaints process, applications for end-user information disclosure orders (EIDOs), nominated entity obligations and Attorney-General intervention commence on a day set by Proclamation, or, if no such proclamation is made, 12 months after the Bill receives the Royal Assent. This will allow for necessary operational procedures and technical mechanisms to be implemented before those substantive provisions of the Bill commence.
Clause 3 - Simplified outline of this Act
Clause 3 is a simplified outline of the Bill. This simplified outline is included to assist readers to understand the substantive provisions of the Bill. However, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill.
Clause 4 - Constitutional basis of this Act
Clause 4 specifies that the main constitutional basis of the Bill is the Commonwealth’s constitutional power under paragraph 51(v) of the Constitution (the communications power).
Clause 5 - Additional operation of this Act
Clause 5 sets out additional constitutional bases for the operation of the Bill.
Clause 5 provides that the Bill will have the effect it will have if a reference to a social media service were expressly confined to a social media service provided by a corporation, to which paragraph 51(xx) of the Constitution applies.
Clause 5 further specifies that the Bill will have the effect it will have if a reference to a nominated entity were expressly confined to a nominated entity to which paragraph 51(xx) of the Constitution applies
Clause 6 - Definitions
Clause 6 defines terms used in the Bill. The definitions of many of these terms are self-explanatory. This clause also expressly permits some of the definitions to be further elaborated through legislative rules, to promote flexibility.
Definitions of particular note are as follows:
Australian person means and Australian citizen, a permanent visa holder, and body corporate incorporated in Australia. Relevantly, this includes bodies corporate created or continued in existence by primary legislation, such as the Australian Broadcasting Corporation.
country location data refers to a statement detailing whether or not a person who posted material on a page of a social media service appears to be located in Australia or outside of Australia at the time when the material was posted, according to geolocation technology deployed by the service. The Bill does not envisage that a provider of a social media service will provide any further or more specific detail about a person’s whereabouts, nor about their whereabouts at any other time. For example, if the geolocation technology deployed by a social media service indicated that a person was in San Francisco when posting material, the relevant country location data to be provided would be a statement to the effect that the person appeared located outside of Australia at the time the material was posted. Conversely, if the geolocation technology deployed by the person indicated the person was in Geelong, or at a particular address in Perth, the relevant country location data would be a statement to the effect that the person appeared to be located in Australia at the time the material was posted.
electronic service adopts the same definition as in the Online Safety Act 2021 .
end-user information disclosure order means an order given by an Australian court under clause 20.
exempt service means a service that is specified in legislative rules. Legislative rules made under clause 32 may prescribe a service as an exempt service, or describe a class of services that are exempt services, for the purposes of the Bill.
material has the same meaning as in the Online Safety Act 2021 .
nominated entity refers to an Australian body corporate appointed by a provider of a social media service to be its agent in Australia, and has a meaning given by clause 22.
page is defined to take on the on the definition of a page (however described) of the service, or any other distinct part of the service. It is a broad term intended to encompass the variety of social media services that are accessible in Australia from time to time. It would include, for example, the information displayed on a person’s Facebook account, and tweets sent from a person’s Twitter account.
posted has a meaning given by clause 7.
posted in Australia has a meaning given by clause 9.
provider has a meaning that is affected by clause 27
relevant contact details is defined to mean:
· the name of the person or the name by which they are usually known;
· an email address and phone number that can be used to contact the person;
· such other information as enabled by the legislative rules.
These details are intended to be such as is necessary to effect substituted service in an Australian court, and details that can be used to confirm the validity of those details. Fake or inaccurate details will not meet the definition, as they will not be the name of the person, or could not be used to contact the person.
social media service is defined as an electronic service that is a social media service under the Online Safety Act 2021 and satisfies any other conditions set out in the legislative rules, or an electronic service specified in the legislative rules, but does not include an exempt service. The definition of an exempt service is one that is specified in the legislative rules. Therefore, legislative rules made under clause 32 may do three things with respect to the definition of social media service: provide conditions in addition to the definition in the Online Safety Act 2021 , thereby reducing the scope of that definition for the purpose of this Bill; specify that particular services, or classes of services, are social media services irrespective of the definition in the Online Safety Act 2021 ; and specify that particular services, or classes of services, are exempt services and therefore not social media services. This ensures the definition has sufficient flexibility to clearly cover or exclude specified services or types of service that may be developed from time to time.
Clause 7 - When material is posted on a page of a social media service
Clause 7 provides that, for the purposes of the Bill, material is posted on a page of a social media service when a person causes material to be accessible to one or more end-users accessing that page. This accords with the general principle that potentially defamatory statements must be made to an audience in order to be actionable in defamation. This reflects the fact that reputational harm is caused when a person’s standing is lowered in the mind of another member of society.
Clause 8 - When material is removed from a page of a social media service
Clause 8 provides that material is removed from a page of a social media service where it is not accessible to any of the end-users of the service who also have access to that page.
Clause 9 - When material is posted in Australia
Clause 9 sets out criteria to inform whether material has been ‘posted in Australia’ for the purposes of the Bill. These criteria include:
· that material has been posted, and
· that the end-user who has posted the material appears to have been located in Australia at the time the material was posted, according to geolocation technology deployed by the service provider.
The definition is framed around where the person ‘appears to have been located’ according to the service provider’s geolocation technology. The defined term and related obligations under the Bill only require the provider of social media services to disclose the country location data on this basis, and does not require the provider to ascertain a person’s true location. Relevant provisions of the Bill will operate based on the understanding at any given time of a user’s country location data. For example, if a user ‘appears to be’ in Australia, then the provisions regarding the social media service provider being deemed a publisher (clause 15) and having access to a conditional defence (clause 16) will apply. Should it later be clarified that the person was, in fact, outside of Australia when the material was posted, at that stage provisions such as the clauses 15 and 16 will no longer apply.
The Bill also does not require providers of social media services to determine where a person is ‘ordinarily’ based, nor does it require a legal or factual determination as to whether a person is an Australian citizen or permanent resident.
Potential defamation liability for material that is posted from a location outside of Australia will be determined according to the general law of the tort of defamation, and is not affected by the Bill (except as provided for in clause 14, which protects page owners from liability irrespective of where the comment was posted).
Clause 10 - Tort of defamation etc.
Clause 10 provides that the Bill relates to the tort of defamation, and does not affect the operation of the general law of the tort of defamation, except where it provides otherwise (whether expressly or by necessary implication). This aligns with the approach taken in state and territory laws that affect defamation proceedings.
Clause 10 also expressly makes clear that the Bill does not affect the operation of state or territory defamation laws, except where the Bill provides otherwise (whether expressly or by necessary implication). Together with the concurrent operation provision in clause 27, this provision makes clear that the Bill is intended to operate alongside state and territory defamation laws, and other relevant state and territory laws, to the extent possible.
The Bill provides for a small number of specific issues that are relevant to a defamation claim, and thereby will complement and contribute to the current corpus of defamation law. All other aspects of defamation law - both current and future, and whether sourced from the general law, relevant state or territory law, or other Commonwealth law - will continue to apply to a defamation claim in conjunction with the provisions of this Bill, except to the extent this Bill provides otherwise.
Clause 11 - Crown to be bound
This clause makes clear that the Bill binds the Crown in each of its capacities.
Clause 12 - Geographical application of this Act
Clause 12 defines the geographical application of the Act. Clause 12(1) extends the Bill to all of Australia’s external Territories, and Clause 12(2) extends the Act to acts, omissions, matters and things outside Australia. This provision displaces the common law presumption that statutes do not apply extraterritorially.
PART 2 - LIABILITY
Clause 13 - Simplified Outline of this Part
Clause 13 is a simplified outline of Part 2. This simplified outline is included to assist readers to understand the substantive provisions of the Part. However, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Part.
Clause 14 - Liability of page owner for defamation - third-party material
Clause 14 applies to end-users of social media services (page owners) who maintain or administer a page on that service. This clause explicitly affects the general law of the tort of defamation, by making clear that a page-owner is not a ‘publisher’ of material posted on the person’s page by a third party for the purposes of defamation law, if the page owner is an Australian person, regardless of where the poster was located when the material was posted. As a result, the page owner cannot be liable under Australian defamation law in respect of the material posted.
Clause 14 addresses the implication of the High Court’s decision in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 ( Voller ). Specifically, it overrides part of that decision, by providing that end-users who maintain or administer pages on social media (as page owners) are not taken to be publishers of third-party comments on their pages.
In line with ordinary principles of statutory construction, the clause applies equally in circumstances where multiple Australian persons maintain or administer a page of a social media service.
The poster’s status as a ‘publisher’ of the material is not affected by the Bill. This includes where a person posts material to their own social media page.
The Bill is not intended to affect the characterisation of any separate act of publication of the material by the page owner, such as re-posting. It is also not intended to affect any liability for the page owner on a basis other than the law of defamation in respect of the material posted by the third party.
Clause 15 - Liability for defamation - publisher
Clause 15 affects the status of social media service providers as ‘publishers’ of material posted on social media pages. This clause explicitly affects the general law of the tort of defamation.
Subclauses 15(1) and (2) provide that a social media service provider is a ‘publisher’ of material posted on a page of the social media service for the purposes of defamation law. Subclause 15(1) applies where one end-user of the social media service posts material on the page of another end-user. Subclause 15(2) applies where an end-user of the social media service posts material on their own page.
Subclauses 15(1) and (2) address the implications of the Voller decision. They clarify a consequence of that decision by providing that the provider of the social media service is a publisher of such material if it is posted in Australia. The provider may, in any case, be a publisher as a consequence of the High Court’s reasoning in Voller . The subclauses clarify that this is definitely the case, and avoids the need for a complainant to have to prove in legal proceedings that the social media service provider was a publisher of the material.
The poster’s status as a ‘publisher’ of the material is not affected by the Bill. This includes where a person posts material to their own social media page.
A social media service provider’s status as a publisher of material that is posted from a location outside of Australia will be determined by the general law of the tort of defamation, and is not affected by the Bill.
Subclause 15(3) explicitly displaces section 235 of the Online Safety Act 2021 , and the defence of innocent dissemination (whether under general law or the law of a State or Territory), in cases where a provider of a social media service is a publisher of material that was posted in Australia—whether the provider is ‘publisher’ as a result of subclauses 15(1) or (2) or otherwise.
Broadly, section 235 of the Online Safety Act 2021 affects the liability of Australian hosting service providers and internet service providers in relation to content accessible via their services.
The defence of innocent dissemination provides a defence to the publication of defamatory matter. This defence can apply in circumstances where the defendant was a subordinate distributor of the material, and neither knew nor ought reasonably to have known that the matter was defamatory (in circumstances where that lack of knowledge was not due to negligence).
Clause 16 - Liability for defamation - defence for the provider of a social media service etc.
Clause 16 of the Bill creates a conditional defence for the provider of a social media service in a defamation proceeding in which they are a defendant.
Subclause 16(1) makes clear that the clause applies where
a) a person has posted material on a page of a social media service
b) the provider of the social media service is a publisher of that material (whether as a result of subclauses 15(1) or (2), or otherwise)
c) a person has instituted defamation proceedings in relation to the material, and
d) the provider, a related body corporate or nominated entity is a defendant in the proceeding.
Subclause 16(2) outlines when the defence will be available. It provides that, subject to subclause (3), it is a defence if the defendant referred to above proves the following elements:
a) the material was posted in Australia
b) the social media service has a complaints scheme that meets the prescribed requirements in clause 17
c) where the applicant (or a person acting on behalf of the applicant) has made a complaint to the provider about the material—the provider has complied with the complaints scheme in relation to that material, including by disclosing the country location data of the poster in relation to the material
d) any of the following conditions are satisfied:
(i) the applicant (or a person acting on their behalf) has requested disclosure of the poster’s relevant contact details under the complaints scheme, and the provider has disclosed the relevant contact details to the applicant
(ii) where an EIDO has been made against the social media service provider—the provider has disclosed the required information and has otherwise complied with the order, or
(iii) the applicant (or a person acting on their behalf) has not applied for an EIDO, and
e) at the time the material was posted, the social media service provider had established an Australian nominated entity satisfying the requirements set out in Part 4 of the Bill.
The defence is only available where the material was posted in Australia. Where the material was posted from a location outside of Australia, the general law of the tort of defamation will apply.
The provisions make clear that, in all cases, the provider of the social media service must have established a complaints scheme that meets prescribed requirements and established an Australian nominated entity satisfying the requirements set out in Part 4 of the Bill in order to have access to the defence.
Assuming that the material was posted in Australia, the provider has established a complaints scheme that meets prescribed requirements, and has satisfied any applicable obligation to establish an Australian nominated entity, the remaining requirements of subclause 16(2) provide for a number of different scenarios:
· Where an applicant has made a complaint, the provider must comply with the complaints scheme to access the defence.
· Where an applicant does not make a complaint to the provider, or makes a complaint to the provider but does not subsequently request the poster’s relevant contact details under the complaints scheme, there are a number of possible outcomes:
o If the applicant also does not apply to the court for an EIDO, then the provider is entitled to access the defence.
o If the applicant applies to the court for an EIDO, the court grants an EIDO and the provider thereby discloses the poster’s relevant contact details to the applicant, then the provider is entitled to access the defence.
o If the applicant applies to the court for an EIDO and the court declines to grant an EIDO, or the court grants an EIDO but the provider does not (or is not able to) disclose the poster’s relevant contact details, then the provider is not entitled to access the defence.
· Where an applicant requests the poster’s relevant contact details under the complaints scheme, and the provider discloses the poster’s relevant contact details as a result, then the provider is entitled to access the defence.
· Where an applicant requests the poster’s relevant contact details under the complaints scheme, but the poster does not provide consent and the provider is therefore unable to disclose the relevant contact details to the applicant, there are a number of possible outcomes:
o If the applicant subsequently does not apply to the court for an EIDO, then the provider is entitled to access the defence.
o If the applicant subsequently applies to the court for an EIDO, the court grants an EIDO and the provider thereby discloses the poster’s relevant contact details to the applicant, then the provider is entitled to access the defence.
o If the applicant subsequently applies to the court for an EIDO and the court declines to grant an EIDO, or the court grants an EIDO but the provider does not (or is not able to) disclose the poster’s relevant contact details, then the provider is not entitled to access the defence.
In short, if the provider has a nominated entity (if required), and has established and complied with a complaints scheme, whenever a provider discloses the poster’s relevant contact details to the applicant, the provider is entitled to access the defence. Further, whenever an applicant chooses to not apply to the court for an EIDO, the provider is entitled to access the defence. However, whenever a court has declined to grant an EIDO, or has granted an EIDO but the provider does not (or is not able to) disclose the poster’s relevant contact details, then the provider is not entitled to access the defence.
At its core, this mechanism ensures an applicant will either have the relevant contact details in order to bring defamation proceedings against the poster, or will be able to bring defamation proceedings against the social media service provider, unless the applicant (or a person acting on their behalf) chooses not to request contact details or chooses not to pursue an EIDO.
The defence is not available in respect of material that is posted outside of Australia. However, in those circumstances, other provisions of the Bill will also not apply, such as the deeming provisions in subclauses 15(1) and 15(2), and the provisions dis-applying certain defences in subclause 15(3). Accordingly, both the status of the provider as a publisher and its potential liability in respect of the material will be determined under the general law and other applicable legislation.
Subclause 16(3) provides for an exception to the defence. If the poster is the social media service provider, a related body corporate of the provider or the nominated entity of the provider, then the defence will not apply so far as the defamation proceeding is against the poster. This ensures that the referenced entities remain accountable for their own material, even where the conditions in subclause 16(2) are satisfied.
The references through clause 16 to a person acting on behalf of an applicant are intended to take account of circumstances in which another person acts on behalf of the applicant in the complaints scheme or court proceedings in respect of which the clause applies. This could occur in relevant proceedings where, for example, the applicant is a child or has capacity issues, and a parent or guardian has commenced proceedings on behalf of the applicant. Clause 17 also provides for the legislative rules to allow for a person to bring a complaint on behalf of another person.
Clause 17 - Complaints scheme - prescribed requirements
Clause 17 outlines the prescribed requirements for a complaints scheme implemented by the provider of a social media service, so that the provider may receive the benefit of the defence in Clause 16. The Bill does not oblige a provider to have a complaints scheme. Rather, the Bill incentivises providers to have such a scheme, by making it a condition of accessing the defence.
The Bill does not prevent a complaints scheme from having additional elements or details, provided those additional elements or details do not result in a failure to meet the requirements prescribed by the Bill. Social media service providers may therefore adapt an existing complaints scheme to meet the prescribed requirements, or add elements that serve other purposes.
Subclause 17(1) sets out the requirements that the complaints scheme must satisfy. Subclause 17(1) provides that the complaints scheme applies in circumstances where the complainant has reason to believe that there may be a right for them to obtain relief against an end-user of the social media service in a defamation proceeding that relates to a material posted on a page of the service by that end-user (the poster).
Paragraph 17(1)(a) provides that the complainant must be able to make a complaint to the provider of the social media service about material that they believe to be defamatory.
Paragraph 17(1)(d) sets out an obligation on the provider to disclose country location data to the complainant in relation to the material. This must be disclosed within 72 hours of the complaint being made. This will allow the complainant to determine whether relevant provisions of the Bill are applicable (such as the provider of the social media service being deemed to be a publisher of the material or an application for an EIDO being available) and allow the complainant to make an informed decision about pursuing defamation proceedings in relation to the material.
The remaining requirements for the complaints scheme in subclause 17(1) apply only when the material in question was posted in Australia.
Paragraph 17(1)(b) sets out an obligation to inform the poster about the complaint (if the material was posted in Australia). The provider must inform the poster about the complaint within 72 hours of the complaint being made. In some cases, this may prompt the poster to remove or correct the material, or to otherwise indicate to the provider their intention with respect to the complaint and the material.
Paragraph 17(1)(c) sets out an obligation to report back to the complainant (if the material was posted in Australia). The provider of the social media service must, within 72 hours of the complaint being made, notify the complainant that the poster has been informed that the material is the subject of a complaint.
Paragraph 17(1)(e) empowers the provider of the social media service to remove the material from the page if the poster consents to the removal (and if the material was posted in Australia). The Bill adopts a neutral position with respect to the removal of defamatory material. Paragraph 17(1)(e) facilitates, but does not require, removal of the defamatory material. Removal of defamatory material is not a condition that must be satisfied for the social media service provider to access the defence under clause 16; nor does the Bill require a provider not to remove such material. Finally, the Bill does not affect other bases for removing the material, such as the provider’s own terms of use. Accordingly, a provider may be able to remove the material pursuant to its terms of use, including potentially without the consent of the poster, and paragraph 17(1)(e) does not prevent this.
Paragraph 17(1)(f) provides that the social media service provider must inform the complainant of the outcome of the complaint (in relation to material that was posted in Australia). The provision is silent as to what the ‘outcome’ of the complaint may be, which allows for flexibility in different circumstances. It is intended to refer to the response received from the poster when informed of the complaint. For example, the poster may acknowledge the complaint and remove the material. Alternatively, having been notified of the complaint, the poster may express a view regarding the complaint (for example, the poster may state that they consider the material is not defamatory), refuse to remove the material, or refuse to acknowledge the notification. The provider may also be unable to reach the poster. Whatever the outcome, the provider of the social media service must inform the complainant within 72 hours of the outcome occurring.
For outcomes that involve an absence of action (for example, the poster not acknowledging the complaint or the provider being unable to reach the poster), the provider is able to consider that the outcome has occurred after a reasonable period of time, assessed in all the circumstances, and should thereafter notify the complainant. Where it is unclear whether or when an outcome has occurred and a provider has not informed the complainant of the outcome, the complainant can be dissatisfied with the handling of the complaint for the purpose of paragraph 17(1)(g).
Paragraph 17(1)(g) applies in relation to material that was posted in Australia and in relation to which the complainant was dissatisfied with the handling of their complaint. Again, ‘handling’ and ‘dissatisfied’ are not defined, and are intended to have a flexible and subjective (for the complainant) application. This may include being dissatisfied with the outcome of the complaint as that concept is elaborated above, or with some other aspect of how the provider has handled the complaint (for example, not concluding that an outcome has been achieved when unable to reach the poster within a reasonable period of time). In those circumstances, the complainant may request the provider to disclose the relevant contact details of the poster to the complainant, for the purposes of the potential institution of a defamation proceeding. There is no specified time period which must elapse before a complainant may be dissatisfied with the handling of a complaint.
If the complainant seeks the poster’s contact details, the provider must ask the poster whether they consent to the disclosure of their relevant contact details to the complainant. The provider must do so within 72 hours of the request being made.
If the poster consents to the disclosure of their relevant contact details, subparagraph 17(1)(g)(iii) empowers the provider of the social media service to disclose those details to the complainant. Any such consent must be provided after the defamation complaint is made, and cannot be given in advance. This aspect is intended to ensure that providers of social media services seek and receive the poster’s consent in relation to each request that is made under the complaints scheme, and do not seek to bundle consent, or a requirement to provide consent, into their terms of service.
Providers of social media services are not empowered by the Bill to disclose a poster’s relevant contact details without consent (except in compliance with an end-user information disclosure order). While the Bill does not prohibit such disclosure, privacy obligations applying to the provider would ordinarily do so. More generally, this part of the Bill is intended to strike a balance between protecting online privacy and the impact of online harms to individuals.
Paragraph 17(1)(h) allows for the making of legislative rules to prescribe additional requirements that a complaints scheme must meet. This is to allow for flexibility, should additional requirements be desirable. For example, legislative rules may require a complaints scheme to allow another person to bring a complaint on behalf of a prospective complainant, which could occur where the prospective complainant is a child or has capacity issues.
Paragraph 17(1)(i) makes it clear that a provider of a social media service is not required to take any action under the complaints scheme if they reasonably believe that the complaint or request does not genuinely relate to the potential institution by the complainant of a defamation proceeding against the poster in relation to the material. This subclause makes clear that providers of social media services are not required to act where a complainant seeks to abuse the complaints scheme. While the provider would not be able to have access to the defence under subclause 16(2) in relation to the material that is the subject of the complaint, they would equally have formed the view that the complaint does not genuinely relate to the potential institution of defamation proceedings in relation to the material.
Subclause 17(1) requires various actions to take place within some version of a 72-hour timeframe. These timeframes seek to strike a balance between facilitating the progression of a defamation complaint in a timely manner, and providing a reasonable period of time to undertake required actions such as contacting a poster and receiving a response.
Subclause 17(2) provides that providers of a social media service are authorised to disclose country location data in circumstances outlined by paragraph 17(1)(d), and subclause 17(3) provides that the provider cannot be subject to civil liability for doing so. This ensures that a provider is not subject to some other liability, such as obligations under the Privacy Act 1988 (or the Australian Privacy Principles under that Act), as a result of complying with the requirement in paragraph 17(1)(d).
Subclause 17(4) provides that providers of a social media service are authorised to disclose the relevant contact details of the poster in circumstances outlined by subparagraph 17(1)(g)(iii), and subclause 17(5) provides that the provider cannot be subject to civil liability for doing so. This ensures that a provider is not subject to some other liability, such as obligations under the Privacy Act 1988 (or the Australian Privacy Principles under that Act), as a result of complying with the requirement in subparagraph 17(1)(g)(iii).
Subclauses 17(6)-(10) expressly allow for the making of legislative rules that set out the manner and form in which relevant steps of the complaints scheme must be taken. For example, legislative rules permitted by subclause 17(6) may stipulate that a standard form of words must be used when informing a poster that a post is the subject of a defamation complaint.
PART 3 - END-USER INFORMATION DISCLOSURE ORDERS
Clause 18 - Simplified outline of this Part
Clause 18 is a simplified outline of Part 3. This simplified outline is included to assist readers to understand the substantive provisions of the Part. However, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Part.
Clause 19 - End-user information disclosure orders
Clause 19 establishes a framework for a prospective applicant to apply to a court for an EIDO. An EIDO can require the provider of a social media service to disclose the poster’s country location data and (if the material was posted in Australia) the poster’s relevant contact details to the prospective applicant.
Subclause 19(1) provides that a prospective applicant can apply to a court for an EIDO where the following criteria are met:
· a person has posted material on a page of a social media service
· the prospective applicant is an Australian person and reasonably believes that they would be able to obtain relief against the poster in a defamation proceeding relating to the material
· any of the following conditions is satisfied under paragraph 19(1)(c):
o the prospective applicant is unable to ascertain the relevant contact details of the poster
o the prospective applicant is unable to ascertain whether the material was posted in Australia, or
o the prospective applicant reasonably believes the material was posted in Australia, and
· an Australian court would have jurisdiction in a defamation proceeding that relates to the material.
Clause 19 refers to a ‘prospective applicant’. This person is equivalent to the ‘complainant’ in clause 17 (complaints scheme) and the ‘applicant’ in clause 16 (defence). These three terms all refer to the person who either has instituted a defamation proceeding or reasonably believes they are able to obtain relief in a defamation proceeding.
An application for an EIDO may be made to either:
· an Australian court that would have jurisdiction to hear the defamation proceeding, or
· the Federal Circuit and Family Court of Australia (Division 2).
The Federal Circuit and Family Court of Australia (Division 2) is referred to separately as it does not have original jurisdiction in respect of defamation, and therefore may not fall within the first category for any given defamation claim. It is desirable to provide the Federal Circuit and Family Court of Australia (Division 2) with the ability to grant an EIDO, to provide more options to prospective applicants.
There is no requirement for a prospective applicant to first go through the social media service provider’s complaints scheme before they are entitled to apply for a court order. A person who has been subjected to defamatory material posted on social media can choose to pursue a complaint under the social media service provider’s complaints scheme, to apply to the court for an EIDO, or both. This mechanism provides flexibility to a prospective applicant, to utilise the less formal complaints mechanism where they consider this will be helpful, or to go straight to applying for a court order where they consider the complaints mechanism is unlikely to be helpful.
Subclause 19(2) provides that a court may grant an end-user information disclosure order where the prospective applicant satisfies the court that:
· the poster has posted material on a page of a social media service
· there are reasonable grounds to believe that the prospective applicant may have a right to obtain relief in a defamation proceeding against the poster in respect of the material
· any of the following conditions are satisfied:
o the prospective applicant is unable to ascertain the relevant contact details of the poster
o the prospective applicant is unable to ascertain whether the material was posted in Australia, or
o the prospective applicant reasonably believes the material was posted in Australia, and
· an Australian court would have jurisdiction to hear the matter.
These criteria ensure that the court must be satisfied that there may be a right to obtain relief in defamation proceedings in an Australian court in relation to the material.
Where these criteria are satisfied, the court may grant an EIDO as contemplated by either or both paragraphs 19(2)(e) and 19(2)(f).
An EIDO under paragraph 19(2)(e) can be made where the prospective applicant is unable to ascertain the relevant contact details of the poster. In those circumstances, the court may order the provider of the social media service, or its nominated entity, to give to the prospective applicant any relevant contact details of the poster that it holds, or to which it has access.
This order will not apply, and therefore will not need to be complied with, if the material was not posted in Australia. This part of paragraph 19(2)(e) is worded flexibly, to account for the country location data not being known at the time the EIDO is granted. In this circumstance, should the provider ascertain that the material was posted in a location outside of Australia, at that point the order to disclose relevant contact details will not have effect.
Paragraph 19(2)(e) only allows the court to order the disclosure of relevant contact details of the poster that the provider or its nominated entity holds or has access to. This ensures that a provider or nominated entity is not faced with a court order to disclose information that it does not have and cannot access, and therefore is not capable of complying with.
The requirements of the defence - and specifically subparagraph 16(2)(d)(ii) - require the provider to disclose the relevant contact details (and country location data) of the poster to the prospective applicant (and otherwise comply with the EIDO) in order to access the defence. In circumstances where an EIDO is granted under paragraph 19(2)(e), the provider or nominated entity does not have or cannot access the relevant contact details of the poster, and therefore the provider does not disclose those details to the prospective applicant, the provider will not be able to access the defence but it also will not have failed to comply with the EIDO.
An EIDO under paragraph 19(2)(f) can be made where the prospective applicant:
· is unable to ascertain if the material was posted in Australia, or
· reasonably believes the material was posted in Australia.
In those circumstances, the court may order the provider of the social media service, or its nominated entity, to give the prospective applicant any of the poster’s country location data which it holds, or to which it has access.
In circumstances where the prospective applicant has not been able to ascertain the poster’s relevant contact details, and where it is unclear whether the material was posted in Australia, a court may grant orders requiring the disclosure of country location data and relevant contact details. As noted above, the obligation to give the poster’s relevant contact details to the prospective applicant in these circumstances would be contingent on the country location data clarifying that the material was posted in Australia.
Subclauses 19(2)(e) and (f) make clear that a court may set a timeframe for compliance with an EIDO. Courts will be empowered to decide the appropriate timeframe in light of all the circumstances of any particular case.
Subclause 19(3) makes clear that courts may refuse to make an order requiring a provider of a social media service to disclose a poster’s relevant contact details or country location data if the disclosure is likely to present a risk to the poster’s safety. This could arise, for example, in circumstances where there is information before the court (such as the substance of the posted material) indicating that the poster knows the prospective applicant and had previously been the subject of intimate partner or family violence at the hands of the applicant. The Bill does not envisage that the court must take positive steps to investigate the safety of the poster (or any other person) prior to making an EIDO. Rather the court would make such a determination in light of all the circumstances of the case, on the basis of information available to it.
Subclause 19(4) makes clear that the ability to refuse to make an EIDO on the grounds that the disclosure is likely to present a risk to the poster’s safety under subclause 19(3) does not limit the court’s existing power to refuse to make an order in other circumstances. For example, if the court determines that (even in the absence of safety concerns) the interests of justice would not be served by making an end-user information disclosure order, it may refuse to make such an order.
Where a court refuses to make an EIDO, whether under subclause 19(3), subclause 19(4) or any other basis, and therefore the social media service provider does not disclose the relevant contact details of the poster to the prospective applicant, the provider will not be entitled to access the defence provided for in clause 16.
Subclause 19(5) makes clear that the power to make an EIDO under clause 19 is additional to, and not instead of, any other powers of the court. The purpose of the EIDO mechanism is to provide an additional option to a prospective applicant to obtain the relevant contact details of the poster. Should the prospective applicant have access to another mechanism to obtain those details, such as an order for preliminary discovery, the prospective applicant is able to choose to utilise either or both of those mechanisms (subject to the criteria of that other mechanism and any relevant laws or rules of court).
Subclause 19(6) clarifies that the conferral of a power on the Federal Circuit and Family Court (Division 2) to make an EIDO is to be disregarded in determining whether that court has jurisdiction in a defamation proceeding. This provision avoids the possibility of that court obtaining jurisdiction to hear a defamation dispute in relation to material solely because it was vested with the power to hear and determine an application for an EIDO relating to that material—whether through the operation of relevant associated jurisdiction provisions or otherwise. The Bill is not intended to alter the existing jurisdiction of the Federal Circuit and Family Court (Division 2) to hear a defamation proceeding.
Clause 20 - Practice and procedure
Clause 20 allows for legislative rules to provide for the practice and procedure to be followed in a court in relation to applying for EIDOs, the hearing and determination of such applications, or anything incidental to that practice or procedure. The Bill envisages that the practice and procedural rules governing an application for an EIDO would ordinarily be the rules of the court hearing the application. However, clause 20 makes clear that legislative rules may establish additional procedural aspects in EIDO applications or hearing. This could include appropriate procedural safeguards, which would apply consistently across all courts that may deal with an EIDO application. For example, such rules could allow for the granting of a pseudonym in relation to an EIDO application, or for a person to apply for an EIDO on behalf of a prospective applicant. Subclause 20(2) clarifies that the provision does not limit a power to make rules of court.
PART 4 - NOMINATED ENTITIES
Clause 21 - Simplified outline of this Part
Clause 21 is a simplified outline of Part 4. This simplified outline is included to assist readers to understand the substantive provisions of the Part. However, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Part.
Clause 22 - Nominated entity of the provider of a social media service
Clause 22 creates a requirement, where the provider of a social media service is a body corporate incorporated in a foreign country, for the provider to ensure it has an Australian ‘nominated entity’ capable of meeting the various obligations that may arise under, or in connection with, the Bill. Paragraph 22(1)(b) provides that this obligation only applies where, either:
· there are at least 250,000 Australian persons who hold accounts with the service; or
· the service is specified in the legislative rules.
This threshold is intended to avoid imposing a disproportionate burden on any social media service provider that has only a small number of Australian users. The ability to specify services in the legislative rules will serve two purposes: it will allow providers of social media services with less than 250,000 Australian account holders to be prescribed in appropriate circumstances, and providers with at least 250,000 Australian account holders to be expressly prescribed and thereby avoid the need to prove this element in civil penalty or defamation proceedings.
Paragraphs 22(1)(c), (d) and (e) make clear that the provider of the social media service must ensure that its nominated entity is a body corporate that:
· is an agent of the provider
· is incorporated in Australia, and
· has an office in Australia.
Among other things, these provisions make clear that Australians seeking to make a complaint, seek an EIDO or commence defamation proceedings in respect of material posted on a page of a social media service will have access to an Australian entity that is capable of responding appropriately.
Paragraph 22(1)(f) requires the nominated entity to have access to:
· the relevant contact details of end-users of the service who have posted material on pages of the service, where the material is posted in Australia, and
· the country location data of end-users of the service who have posted material on pages of the service, where the material is posted in Australia.
Paragraph 22(1)(f) allows flexibility in the way that providers of social media services meet this requirement, and does not require data localisation or transfer of data into Australia. For instance, if relevant contact details and country location data relating to users are held offshore, the nominated entity may establish arrangements that allow it to access that data on a case by case basis as required. The provision does not require the provider of the social media service to transfer information into Australia; nor is there any requirement to have access to country location data and relevant contact information in relation to material that is not posted in Australia. This requirement ensures that any EIDO made by a court can be readily enforced in Australia against an Australian entity. It also ensures that the nominated entity can access and disclose information as appropriate in accordance with the complaints scheme
Paragraph 22(1)(g) makes clear that, if a social media service provider has a complaints scheme that meets the requirements under clause 17, the nominated entity must have authority to receive complaints and requests made under that complaints scheme. This aligns with the principle that Australians seeking to make complaints about potentially defamatory material on a page of a social media service that is made in Australia should be able to approach an Australian entity in relation to that material.
Paragraph 22(1)(h) makes clear that if the provider of the social media service has related bodies corporate in Australia, the nominated entity must be one of those related bodies corporate. This provision clarifies that, if a provider has at least one related body corporate incorporated in Australia, it may not nominate an unrelated body corporate. The provision also clarifies that, if a provider has multiple related bodies corporate incorporated in Australia, not every related body corporate will be required to act in the capacity of a nominated entity.
A civil penalty provision of 500 penalty units is attached to a contravention of subclause 22(1). This currently equates to $555,000 for a body corporate. Civil penalty provisions are enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act), in accordance with subclause 25 of the Bill. This penalty aligns generally with the penalties set under the Online Safety Act 2021 .
Any requirement under subclause 22(1) to have a nominated entity is also incorporated as a condition to access the defence under clause 16. Where the conditions in paragraphs 22(1)(a) and (b) are met and the social media service provider fails to have a nominated entity, the provider is therefore subject to two consequences - a civil penalty and an inability to access the defence. These two consequences serve two different purposes.
The prospect of a civil penalty provides an incentive for a nominated entity to be established, and allows for an authorised applicant (see clause 26) to enforce the requirement, prior to a complaint arising under the complaints scheme. This seeks to ensure that foreign social media service providers establish nominated entities at the outset, so they are available to assist Australian complainants when a complaint arises.
The condition in the defence seeks to provide additional incentive on a foreign social media service provider to comply with the requirement, noting that failing to do so may leave it open to potential defamation liability. This incentive is intended to fill gaps which may be created by any difficulties in enforcing a civil penalty against a social media service provider in a foreign jurisdiction.
Subclause 22(2) provides that the entity established in accordance with subclause 20(1) will be known as the nominated entity for the purposes of the Bill.
Clause 23 - Continuing contraventions
Clause 22 provides for the continuing contravention of subclause 22. Subclause 23(1) provides that each day that a person fails to provide a nominated entity for the purposes of this Bill, they commit a separate contravention.
Subclause 23(2) limits the daily pecuniary penalty payable to no more than 5% of the maximum pecuniary penalty that could have been imposed for the contravention of subclause 22(1). This provision aligns with the approach to continuing contraventions of civil penalty provisions set out in Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).
PART 5 - MISCELLANEOUS
Clause 24 - Simplified outline of this Part
Clause 24 is a simplified outline of Part 5. This simplified outline is included to assist readers to understand the substantive provisions of the Part. However, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Part.
Clause 25 - Attorney General may intervene in defamation proceeding
Clause 25 allows the Attorney-General to intervene in particular proceedings on behalf of the Commonwealth.
Subclause 25(1) provides that the Attorney-General may intervene in a proceeding where:
· a poster has posted material on a page of a social media service
· an Australian person has instituted defamation proceedings in relation to the material
· the provider of the social media service is a party to the defamation proceeding
· the proceeding is before an Australian court that is exercising federal jurisdiction, and
· the Attorney-General believes it is in the public interest to do so.
This provision makes clear the Attorney-General may intervene in defamation proceedings relating to material posted on a page of a social media service where the provider of the social media service is a party to the proceeding. Such a defamation proceeding may arise under the Bill, or otherwise, but must involve the exercise of federal jurisdiction.
Defamation cases can be complex, and can sometimes involve a significant power imbalance between a large publisher and an individual whose reputation has been harmed. In part, the power to intervene under subclause 25(1) would allow the Attorney-General to address this power imbalance where it is in the public interest to do so.
Subclause 25(2) provides an alternative and additional basis of intervention. The provision makes clear that the Attorney-General may intervene in a proceeding before an Australian court in a matter arising under the Bill. This provision makes clear that the Attorney-General may intervene in proceeding that are not defamation proceedings, providing they arise under the Bill. For example, the Attorney-General may intervene in proceedings that concern an end-user information disclosure order (where substantive defamation proceedings have not yet commenced).
When novel legislation such as this Bill is implemented, it is important that the Government can put its views to the court about how it is intended to apply. In part, the power to intervene under subclause 25(2) would allow the Attorney-General to pursue that end.
Subclauses 25(3) and (4) provide that, in any proceeding where the Attorney-General has intervened under subclause 25(1) or (2), the court may award costs against the Commonwealth, and the Attorney-General is to be taken as a party to the proceeding. This aligns with the approach taken with respect to intervention in proceedings that arise under other Commonwealth enactments (such as the intervention power in s 84A of the Native Title Act 1993 ).
Subclause 25(5) provides that, if the Attorney-General has intervened in proceedings instituted by an Australian person under subclause 25(1) or (2), the Attorney-General may authorise the payment to the applicant by the Commonwealth of such costs as the Attorney-General considered were reasonably incurred in relation to the proceedings.
This power to authorise the payment of reasonable costs incurred by an applicant recognises that intervention by the Attorney-General may result in additional costs being incurred, and is available where, in the opinion of the Attorney-General the proceeding will:
· settle an area of uncertainty under Commonwealth law,
· resolve an important question under Commonwealth law that affects the rights of section of the public that is, or a group of individuals who are, socially or economically disadvantaged.
A request for legal assistance under this provision will be considered in accordance with guidelines made by the Attorney-General.
Clause 26 - Civil penalty provision
Subclause 26(1) provides for the enforceability of civil penalty provisions in the Bill under Part 4 of the Regulatory Powers Act.
A note to subclause 26(1) provides that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Subclause 26(2) provides that, for the purposes of Part 4 of the Regulatory Powers Act, the Attorney-General is an authorised applicant in relation to a civil penalty provision in the Bill.
Subclause 26(3) provides that the powers of the Attorney-General as an authorised applicant may be delegated in writing to the Secretary of the Attorney-General's Department.
Subclause 26(4) provides that, for the purposes of Part 4 of the Regulatory Powers Act, the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 2) are relevant courts in relation to a civil penalty provision under the Bill.
Subclause 26(5) extends the appication of Part 4 of the Regulatory Powers Act in relation to a civil penalty provision in the Bill to every external Territory and to acts, omissions, matters and things outside Australia.
Clause 27 - Concurrent operation of State and Territory laws
In accordance with clause 27, it is the intention of Parliament that the Bill does not apply to the exclusion of a law of a State or Territory, to the extent to which that law is capable of operating concurrently with the Bill. This provision makes clear that the Bill operates alongside applicable State or Territory laws that address, for example, the conduct of defamation proceedings.
Clause 28 - Implied freedom of political communication
Subclause 28(1) provides that the Bill does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
Subclause 28(2) provides that subclause 28(1) does not limit the application of section 15A of the Acts Interpretation Act 1901 to the Bill.
Clause 29 - Provider of a social media service
Subclause 29(1) provides that a person does not provide a social media service merely because they supply a carriage service that enables material to be accessed or delivered.
Subclause 29(2) clarifies that, for the purposes of the Bill, a person does not provide a social media service merely because the person provides a billing service or fee collection service in relation to a social media service.
Clause 30 - Application of section 14—material posted on a page of a social media service
Clause 30 clarifies that clause 14 of the Bill (the protection for page owners) does not apply in relation to material posted prior to the commencement of that clause. This makes clear that clause 14 does not have retrospective effect.
Clause 31 - Application of other provisions—material posted on a page of a social media service
Clause 31 clarifies that clauses 15, 16, 17, 19, 22 and 25 of the Bill do not apply in relation to material posted prior to the commencement of those clauses. This makes clear that the relevant clauses of the Bill do not have retrospective effect.
Clause 32 - Legislative rules
Subclause 32(1) is a standard provision which permits the Minister to make legislative rules for the purposes of the Bill, subject to the exclusions set out in subclause 32(2). Subclause 32(2) clarifies that the Minister may not create legislative rules that create an offence or civil penalty, provide powers of arrest, detention, entry search or seizure, impose a tax, or directly amend the text of the Bill.
The Attorney-General may make legislative rules prescribing matters required or permitted by the Bill, or otherwise necessary or convenient for carrying out or giving effect to the Bill. In particular, the Attorney-General may make rules prescribing:
· additional information that is included in the definition of relevant contact details, as permitted in that definition
· whether particular services are included in the definitions of social media services or exempt services, or additional requirements that must be satisfied to be a social media service, as permitted in those definitions
· whether a person may act on behalf of a prospective complainant in relation to a complaint, as permitted by clause 17 of the Bill
· additional requirements that must be satisfied for a complaints scheme to meet the prescribed requirements, as permitted by clause 17 of the Bill
· requirements establishing the manner and form in which certain steps in the complaints scheme must be done, as permitted by clause 17 of the Bill
· whether a person may act on behalf of a prospective applicant in relation to an application for an EIDO, as permitted by clause 19 of the Bill
· practice and procedural rules that relate to an application for an EIDO, as permitted by clause 20 of the Bill, and
· social media services that are subject to the obligations in relation to nominated entities, as permitted by clause 22 of the Bill.