Social Media (Anti-Trolling) Bill 2021– Exposure Draft
The submission to the Attorney-General’s Department in relation to its Exposure Draft of the Social Media (Anti-Trolling) Bill 2021 (Draft Bill) was prepared by the Law Council of Australia.
In recent years, defamation has become an area of increasing prominence in terms of community and media interest. It is also an area of law that has arguably struggled to keep pace with developments in online publishing, including social media.
The Law Council acknowledges that the Draft Bill has two primary purposes:
(a) to respond to potential issues arising as a result of the decision of the High Court of Australia (High Court) in Fairfax Media Publications Pty Ltd v Voller  HCA 27 (Voller); and
(b) to create additional mechanisms for social media users to identify an anonymous user who has posted potentially defamatory material for the purpose of potentially bringing a defamation action.
The Law Council notes that a review of the Model Defamation Provisions (MDPs) is currently being undertaken, through the Meeting of Attorneys-General (MAG) processes, in relation to the liability of internet intermediaries. This review has been a substantial and in-depth process and has the potential to ensure that reforms to the law of defamation in Australia are developed in a way which is comprehensive, complementary, certain and clear. Therefore, the Law Council considers that intervention at the federal level in the law of defamation should not occur until the completion of the Stage 2 Review process and should form part of any package of reforms to the liability of online intermediaries more broadly.
In light of discussion in relation to the Draft Bill focusing on trolling, the Law Council considers it important to recognise the limited role in which this Draft Bill will address issues related to trolling. Defamatory material comprises only a small component of ‘trolling’ activity online and despite the proposed reforms, defamation law is likely to continue to be, for many reasons outlined further in this submission, a relatively ineffective mechanism for seeking individual reputational redress and for reducing trolling activity on social media.
You can read the full submission below.