The government is planning to introduce laws that will force social media companies to identify users and make them the targets of defamation lawsuits, which digital rights campaigners have warned threatens free speech and democracy in Australia.
Prime Minister Scott Morrison and Attorney-General Michaelia Cash outlined the new laws in a press conference on Sunday without publishing drafts of the legislation for public scrutiny.
“People have just had enough of third party online trolls putting potentially defamatory comments online that then can cause harm to people,” Cash said.
“So this legislation is going to empower Australians to unmask these trolls. You should not be able to use the cloak of online anonymity to spread your vile, defamatory comments.”
Under what Cash dubbed the “anti-trolling legislation”, people who claim to be victimised by anonymous online accounts will be able to seek a Federal Court order forcing social media platforms to disclose any identifying information about those users without their consent.
When pressed on exactly what kind of identifying information the social media companies will keep, Morrison suggested it was up for them to decide.”
“If the online company can’t tell us who it is, then they are liable; they are responsible; they are in the sights,” Morrison said.
“So, I can tell you it is in the social media companies' interests to make sure that they have a very voracious way of ensuring that they can actually tell people who it is, otherwise they’re the ones who are going to get the case brought against them.”
The laws will require those companies to implement complaints systems to make sure defamatory content is removed quickly.
The government will also try and make it so that people who run pages on platforms like Facebook cannot be classed as the publishers of defamatory material – a direct response to the recent High Court decision on the Dylan Voller case, in which the court found news outlets were liable for defamatory comments left on their pages’ Facebook posts.
Morrison and Cash spoke at length about the laws being designed to keep Australians “safe online”, echoing the Online Safety Bill that passed earlier this year and which gives the eSafety Commissioner powers to direct online services to remove certain offending content.
Toward online censorship
But there are concerns that the government is using the cover of “safety” to pass an agenda of digital censorship.
Angus Murray is a lawyer and chair of Electronic Frontiers Australia’s policy team who has long been critical of the government expanding its powers of digital surveillance.
“There is every reason why being anonymous online is beneficial, and there is every reason why speech which might be controversial ought to be covered by that anonymity,” he told Information Age.
“Breaking that apart damages free speech and cuts to the heart of our right to privacy.”
Murray is especially critical of the way the proposed unmasking laws are designed to aid with defamation lawsuits which he described as a “tool for the wealthy and powerful”.
He mentioned the recent cases put forward by former Attorney General Christian Porter against the ABC, and former Deputy Premier of NSW John Barilaro who tried to sue YouTuber Jordan Shanks.
In both instances, the claimants settled out of court without damages being paid.
“We’ve seen these recent examples where defamation law is used to effectively censor and is settled without court determinations,” Murray said.
“I think before we go down a path like this we need some analysis and clear understanding of what safety actually means.
“Safety needs to be about something important and less about being safe from dissent or adverse commentary.”
Who are the real trolls?
Digital democracy advocates at Reset Australia were equally critical of the government’s efforts at keeping Australians “safe online”, with Executive Director Chris Cooper saying the legislation is a poor way to solve the problems of hate speech online.
“The most pressing problem here is not trolls, it is the disproportionate reach of their content enabled by the algorithms of social media companies that prioritise sensational, outrageous and conspiratorial content – the form which defamatory content usually takes,” he said.
“Forcing social media companies to be responsible for coughing up the identity of individuals does not hold the platforms accountable for their profit-making amplification that enables that content to go viral.”
Reset Australia wants to see government take on big tech in a way that addresses the root of the issues it causes and erodes our shared reality by design.
This should be done not by focusing on heavy-handed moderation and identification requirements that target users, but by enforcing greater transparency and fighting for systemic changes to how big tech operates.
“Online anonymity does protect trolls from accountability, but it also is an important tenet of a free and open internet that protects critics of the powerful which can hold leaders accountable.
“We cannot throw away anonymity and the protection it provides vulnerable communities, for the sake of reining in trolls who mostly are only able to cause harm because of social media platforms that profit from amplifying their content.”