The bill intends to address the lack of accountability on service providers
New legislation has been introduced that sets basic expectations for allegedly defamatory content on social media platforms, creating liability against service providers which fail to remove it within a reasonable time.
The bill comes after Fairfax Media Publications Pty Ltd v Voller (2021), a recent landmark case, which ruled that public Facebook page owners are the publishers of third-party comments.
The Social Media (Basic Expectations and Defamation) Bill 2021 would enable the Minister to set basic expectations on social media services when hosting defamatory material.
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The Minister will have the power to determine the said expectations and consider “the value of truth and free debate” and “the harmfulness of defamation,” among others. A consultation between the Minister and the public is also encouraged by the bill.
Upon determination of these basic expectations, the e-Safety Commissioner has the power to assess whether a social media service has been compliant. The bill states that the “Commissioner must be satisfied that said services do not contravene one or more of the basic expectations.”
To ensure compliance, the Commissioner will be empowered to require a service provider to prepare reports. Penalties will be imposed if a service provider has been given notice, but the latter did not meet the requirements.
As to defamatory content on social media, the bill will establish a process through which members of the public can make complaints to the Commissioner. The latter will have the power to investigate complaints and issue defamation notices to involved service providers.
The bill states that if the Commissioner issues a defamation notice to the service provider and the material is not removed within 48 hours after receipt of the notice, the end-user who posted the material is liable to an action for defamation for its publication; the provider is jointly liable.
As to human rights implications, the bill said that “it is likely that [it] limits the right to freedom of speech and the right to privacy of an end-user of a social media service.” However, it explained that these limitations are “necessary in order to ensure that all users of social media services are protected from harassment, vilification, defamation, and abuse by other users.”
Dr Anne Webster MP sponsored the bill, which was introduced and read for the first time in the House of Representatives on 25 October.