The Law That Could Make Social Media Giants Accountable By Rebekah Giles
In the same week that Prime Minister Scott Morrison and his deputy Barnaby Joyce declared war on the social media platforms that publish the posts of anonymous users who defame, vilify, and harass, the same foreign companies that operate these platforms took their seat at the NSW Attorney-General’s roundtable discussions on Stage 2 of the defamation law reforms where they robustly advocated for safe harbour from liability.
The legal implications of social media are of such paramount public importance that dialogue between the government and these tech giants is necessary. However, in circumstances where foreign entities such as Twitter refuse to submit to the jurisdiction of Australian courts, one has to wonder why they are invited to have a say on Australian law reform at all.
Nevertheless, the safe harbour proposal outlined in NSW Attorney-General Mark Speakman’s discussion paper on Stage 2 of the defamation law reforms demonstrates his interest in protecting the commercial operations of these foreign entities – a position that is quite obviously out of step with his federal colleagues. Barnaby Joyce, stung by what he has described as “malicious lies” about his daughter on social media, wants to put “the fear of God” into Big Tech.
The arm wrestle between the commonwealth and the states and territories over power to pass defamation laws resulted in the rushed passing of the 2005 legislation by the states and territories which produced an ineffective patchwork regime that has not served Australia well. Many of the inclusions were negotiated compromises which turned out to be unmitigated disasters, resulting in countless appeals and wasted costs. The defence of contextual truth and the removal of the public interest requirement for a defence of truth are but two examples.
The 2020 so-called reforms were a bastardised “bolt on” from changes implemented in Britain and wholly failed to address social media and internet giants. The fact these reforms presently apply to only half of the country illustrates why the states cannot be trusted to properly address the complex task of regulating these powerful players.
During the Stage 2 round table discussions, the NSW Bar Association proposed an entirely fair model in relation to the liability of social media platforms for defamatory posts. A platform could disclose the identity and contact information of the “originator” – the person who posted the material – and agree to abide by any court order ultimately made against the originator. If the platform could not or would not provide that identifying information, it would have to delete the post. And if the platform did not wish to take up either of these options, it would be liable as publisher of the post and could argue defences available to any party under the defamation laws.
The Bar Association model has been opposed by the social media giants, which continue to brazenly advocate for complete immunity from claims with no obligation to remove false and defamatory publications. This scenario would leave a person who is a victim of a false and malicious anonymous publication with no remedy. It ignores the balance the law seeks to strike between freedom of expression and protection of reputation.
The proposal would force social media platforms to obtain identifying details from users upon registration or impose moderation obligations on platforms which did not. This would reduce the prevalence of fake accounts and anonymous posts. When the harm occasioned by anonymous publications is weighed against free speech, it is difficult to argue against the proposal. Freedom of speech was never meant to extend to the freedom to speak anonymously.
Regulation of these foreign social media giants raises intensely difficult jurisdictional issues as most of them are incorporated in the United States where defamation laws are markedly different. Self-evidently, this is an international issue that can only be addressed by treaty or convention to ensure that consistency and fairness apply through the rule of law. International co-operation on legal issues is not uncommon and can be highly effective – take aviation and shipping as examples.
The party best positioned and constitutionally empowered to assume responsibility for law reform applying to social media and the internet is the federal government, which can look to the past work of former attorney-general, now the mayor of Hornsby, Phillip Ruddock. In 2004, Ruddock, after extensive consultation with defamation experts including the various bar associations, drafted federal defamation legislation. A federal act could provide the uniformity the states have failed to establish and be the foundation of a commonwealth solution to what can only be described as a legal crisis.
The practical hurdles associated with the regulation of huge volumes of information and the modernisation of defamation legislation cannot be overlooked. Lawmakers must be open to unconventional solutions.
The establishment of an independent regulator with enforcement powers, as proposed to the government by Patrick George, author of Defamation Law in Australia, is a credible consideration. This body, similar to the ACCC, could alleviate pressure off an already overloaded court system and has the potential to have great effect, particularly when it comes to hate speech, criminal communications and vilification.
Rebekah Giles is principal director of Company Giles, a reputational risk law firm.