World-first laws would require companies to reveal users’ identities, but will they really do much to help curb rates of online bullying?
The Australian government is set to introduce some of the toughest “anti-troll” legislation in the world.
But those at the forefront of fighting online trolling and hate say focus on defamation will not help curb the rates of online bullying or cyberhate.
On Sunday, prime minister Scott Morrison announced his government would introduce legislation to parliament this week that would make social media companies reveal the identities of anonymous trolling accounts and offer a pathway to sue those people for defamation.
What Australian anti-troll laws would cover
Under the legislation, the laws would require social media companies to collect personal details of current and new users, and allow courts to access the identity of users to launch defamation cases.
It is unclear what personal data would be collected but there are indications it would include a phone number, email address and the user’s contact name.
The biggest change is that the legislation would change who is responsible for defamatory posts, from organisations that run the pages – such as news organisations – to the social media companies themselves.
On Sunday Morrison said he wanted to ensure consistency between real-world rules and those online.
“The rules that exist in the real world must exist in the digital and online world,” he said. “The online world shouldn’t be a wild west, where bots and bigots and trolls and others can anonymously go around and harm people and hurt people.”
But, most likely, these laws miss the mark of what they attempt to cure.
So much real harm has already been done by online trolls. And by focusing on defamation, these laws may well hit the mark.
This opinion is also shared by experts such as author of the book Troll Hunting, Ginger Gorman, who is something of an authority in this area.
Can governments intervene successfully? The German example
Gorman believes that the government must legislate a duty of care so the public has to be kept safe by the platform.
In her view, social media companies are “continually publishing egregious content” and have no accountability for this.
She cited Germany as an example where companies’ platforms can be fined up to €50m if they do not delete posts containing racist, defamatory or otherwise illegal speech within 24 hours
This is an example of where governments could take serious action, according to Gorman.
It is a view that I find agreeable as well.
Media companies have shown over many decades that they will not fix this on their own, and social media companies are no different.
Under the legislation, social media companies would have to set up a complaints process, where people can ask for the content to be taken down if they feel it is defamatory towards them.
If the post is not taken down, the user can ask for the personal details of the person who posted the content.
If they do not agree to release them, a court order can be made, forcing the company to release them – and opening up an avenue for the complainant to sue for defamation.
How the Australian government will back test-cases of anti-troll laws
Morrison said the government would support the initial cases, to help set a precedent. “We will be looking for test cases that can reinforce these laws,” he said.
At the centre of the legislation is the ability for individuals to pursue a case against the poster of the content, if they feel they have been defamed.
University of Melbourne’s Dr Lauren Rosewarne said defamation was easier to determine than trolling and hate. “Defining some of these terms: things like ‘online hate’ and ‘trolling’ are subjective,” she said.
“For example, are repeatedly expressed, strongly worded opinions that differ from yours trolling? Some people would say yes, others would say no.”
One of the key issues of the proposed legislation is the collection of personal data and the complexities that come with that, she said.
“Who is going to pay for the verification? If the data isn’t actually verified then I imagine the most problematic social media users will simply enter fraudulent details without many deterrents.”
Currently, social media companies have only offered “lacklustre responses” to allegations of trolling, she said.
“With many complaints noting that invariably they just get an automated response from the social media company and nothing is done. Users want a more proactive approach but such an approach is resource-intensive.”
Momentum behind government intervention in this space
In September the high court ruled Australian media companies could be liable for defamatory comments posted on Facebook pages after Fairfax and Newscorp lost their appeal to escape defamation charges after third-party comments were made on their social media posts.
The Australian Law Council was quick to support the proposed shift in responsibility.
The latest legislation seems to build on that momentum. It remains to be seen how successful it is, and whether it may well create a foray into other forms of hate speech and cyber crime online.