Trolls should not be unmasked if it endangers them, senate committee says

Disclosing a troll’s identity should require a court order ruling the disclosure would not risk their safety, the Senate committee looking at the Social Media (Anti-Trolling) Bill 2022 has recommended. 

“An end-user information disclosure order (EIDO) should not be granted if the Court is satisfied that the disclosure of relevant contact details or country location data is likely to present a risk to the poster's safety,” the recommended amendment said.

The Legal and Constitutional Affairs Legislation Committee tabled its final report on the bill on Thursday afternoon.

The amendment seeks to address online platforms' concerns unmasking some posters could put them at risk.  

The bill would require online platforms to unmask posters accused of defamation within 72 hours of receiving a complaint, to avoid being held legally liable for the third-party content.

Social media providers like Twitter said this posed a threat to posters who require pseudo-anonymity for safety.  

“Personal identification can pose risks to vulnerable groups who are not able to safely use services under their real name, such as those seeking information or support for domestic violence, whistleblowers, or LGBTQIA+ people,” Twitter wrote in their submission. 

The bill overturns the high court’s 2021 Voller decision which established that both online platforms and news companies with social media accounts could be held legally liable for third party defamatory content published over them. 

The government-led committee's other two recommended amendments are to increase social media providers’ ability to remove defamatory third-party content, and to address concerns the original bill imposed too much legal liability on social platforms. 

The report recommended if a social media service receives a complaint about an alleged defamatory post, in addition to unmasking the poster, it “can 'take down' the poster's alleged defamatory material, within 72 hours, without the poster's consent.” 

It also recommended that “a social media page owner may be liable for a poster's defamatory material where the social media page owner: knowingly encourages the publication of a poster's defamatory material; and has been notified or is aware of the poster's defamatory material and has failed to remove it promptly.” 

In its minority report, the Labor party rejected that these amendments remedied the concern that the bill provided “blanket protection from liability to those hosting defamatory comments on the web pages they own and administer.”

The minority report, authored by Labor senator Kim Carr, said even the amendment requiring the social media provider not to encourage defamatory content and to promptly remove it would require "too high a threshold" to prove the provider was legally liable.

Carr said the bill still did little to protect the broader public, who do not have the financial resources to launch defamation suits, from cyber abuse, and therefore would not benefit from having an end-user’s identity. 

“The bill is an ill-considered response to the problem of online trolling, and in its present form appears to reflect an assumption that a remedy for this problem can be achieved by ad hoc adjustments to defamation law.”

“This attitude ignores the fact that trolling on social media is a pernicious problem created by profound cultural and technological changes.”