Australia’s Online Safety Commissioner Say Anti-Trolling Bill Won’t Protect People, Is Mostly About Enabling Defamation Lawsuits

Defamation

from the legislation-masks-coming-off dept

For a few years now, the Australian government has been seeking to outlaw online anonymity. This effort has moved forward under the delusional belief this will somehow result in a new era of online civility, something that has been repeatedly disproven by similar private sector efforts, like Facebook’s real name policy (and the downstream utilization of Facebook for website comment sections).

What’s really driving this effort is Australia’s defamation lawsuit industry. Requiring the harvesting of contact information by any site utilizing third-party content makes it much easier for the offended to subject people to expensive lawsuits, whether or not the content is actually defamatory.

This effort is now mostly redundant now that Australian courts have decided intermediaries can be held directly responsible for content posted by their users. Why anyone would choose to sue Joe Extremely-Online when they can reach into the much deeper pockets of social media platforms is a mystery, but the Australian government seems unwilling to let this perverse dream of killing online anonymity die.

But that’s not going to make anyone safer. And the eSafety Commissioner says the so-called Social Media (Anti-Trolling) Bill isn’t actually focused on stopping trolling. Instead, it’s become little more than an exploitable tool for the Australian government to continue erecting a paradise for venue shoppers and litigation tourists.

eSafety Commissioner Julie Inman Grant has told the committee the name of the bill, the Social Media (Anti-Trolling) Bill 2022, is misleading, because the legislation deals more with defamation law than actually tacking online abuse.

“To lump that all together under the guise of trolling, I don’t think it’s constructive,” she said.

She also noted the unmasking proposal was both useless and potentially dangerous. Unless applied retroactively, the law would be incapable of identifying millions of pre-existing online accounts. And when it comes to unmasking, there’s the potential a law supposedly interested in curbing online abuse might just make things worse.

[T]he ability to unmask the trolls and to give that to an individual who may be in a long-running dispute with someone is, to my mind, not very safe.

The proposed solutions — currently inextricably shackled to what’s clearly an expansion of defamation law — aren’t really solutions. The Law Council of Australia says legislators’ insistence that expanding defamation law and remedies will somehow curb online trolling is severely misguided. Trolling isn’t necessarily defamation, and movements in that direction will provide less protection to people who are being abused by others online.

[D]efamation law is not the answer to that problem, because very little of what constitutes trawling, if any, will in effect be defamation law.

“The lengthy, expensive, often inaccessible defamation court proceedings, that have different requirements within state and territory jurisdictions, is not ultimately going to give the community that protection.

Who has always been able to avail themselves of the power contained in the country’s defamation laws? The rich and the powerful who can easily afford to initiate litigation. Marginalized people — the most common target of online abuse — are only theoretically able to utilize these options. Making it easier to sue doesn’t make it any less expensive. And making it easier to sue means those who have abused the legal process in the past to silence critics or financially harm people who have offended them means there will be much more of the same in the future. Meanwhile, online abuse and harassment will continue to be a problem without solutions most residents can actually access.

Unfortunately, this suggestion from the eSafety Commissioner doesn’t really change much:

I think this kind of sensitive subscriber information should be provided to law enforcement, to designated regulatory bodies like ours, or defamation attorneys who have made out that a defamation action can be made, and need that information for the purposes of furthering the case.

While that may keep aggrieved parties from taking their online beefs offline, it still does little to protect or help many of those subjected to online abuse. Law enforcement is at its most efficient when it’s serving the interests of the rich and the powerful, both of which have the ability to apply motivating pressure and make their complaints heard beyond the walls of police precincts. Regulatory bodies may be somewhat useful, but limited resources mean it will once again be the most powerful complainants seeing any action being taken.

Certainly the Australian government should take action to address online abuse, but those actions should be limited, concise, and well-targeted. Pretending to address online harms by expanding the country’s defamation laws does not address these problems and will do little more but fill the courts with bad faith litigation.

Filed Under: australia, defamation, esafety commissioner, free speech, intermediary liability, julie inman grant, lawsuits, online safety, social media, trolls