Social Media (Anti-Trolling) Bill
The Australian Government is committed to keeping all Australians safe from online harm. Defamatory comments made by trolls on social media can spread virally across the platform, with much of the content being unfiltered. Many trolls are anonymous, which makes it challenging to enforce the current defamation laws against them, especially for ordinary Australians.
High Court's Voller decision
The challenges of responding to anonymous online trolling became clear after the High Court's decision in Fairfax Media Publications v Voller  HCA 27, handed down in September 2021. The Voller decision shows that Australians who maintain a social media page may be exposed to defamation liability for defamatory comments posted on the page by others – even if they are not aware of those defamatory comments.
To urgently address this situation the Australian Government has developed the Social Media (Anti-Trolling) Bill 2021. To address the implications of the Voller decision, the Bill will protect Australians from defamation liability that could arise if they allow users to comment on their social media page.
Identifying anonymous commenters
The Bill is also an important part of the government's commitment to protecting Australians from online harms. It will empower Australians to 'unmask' the originators of anonymous defamatory comments made on social media, where comments are made in Australia.
In doing so, the Bill will seek to centre defamation disputes on the relationship between the victim and the author of the anonymous defamatory comments.
Where social media services establish and comply with a complaints scheme that allow the commenter's contact details to be disclosed with consent, or comply with court orders requiring them to provide contact details, the provider of the service will have access to a conditional defence from defamation liability.
If the commenter cannot be identified, the Bill will enable victims to treat the provider of the social media service as a publisher for the purpose of potential defamation proceedings.
House Select Committee inquiry
The government has established a House Select Committee to inquire into online harms.
The committee will be able to scrutinise the issues addressed by the Bill and the measures it proposes. Appropriately, it will be able to do so in the broader context of anonymous online defamatory comments, online harms and effective protections against them.
State and territory reform process
Through the Meeting of Attorneys-General, the Australian Government is already working alongside states and territories to review defamation laws to ensure they remain fit for purpose in the digital age.
The Social Media (Anti-Trolling) Bill 2021 will be a targeted, balanced measure that complements the existing work being progressed in partnership with states and territories on defamation reform. It seeks to strike a balance between the very important progress that we are making with states and territories, and the urgent need for reform for the benefit of Australian businesses and individuals who maintain an ordinary social media presence.
Background to states and territories reform process
Defamation is a tort at general law, which is affected primarily by state and territory legislation. Recognising the need for uniformity, the Standing Committee of Attorneys-General endorsed the enactment of Model Defamation Provisions in each state and territory in November 2004. Between 2005 and 2006, all states and territories enacted defamation laws based on the Model Defamation Provisions.
On 8 June 2018, the Council of Attorneys-General reconvened a Defamation Working Party to review the Model Defamation Provisions. The working party is progressing reform of the Model Defamation Provisions in two stages.
Stage 1, completed in July 2020, focused on reviewing the Model Defamation Provisions to ensure their policy objectives remain valid and to update the provisions to ensure they are appropriate.
Stage 2, currently in progress, is focusing on the responsibilities and liability of digital platforms for defamatory content published online.
At its meeting on 12 November 2021, the Meeting of Attorneys-General agreed that the Stage 2 Review of the Model Defamation Provisions should remain a priority in 2022.
The government encourages all stakeholders to provide feedback to the House Select Committee inquiry into social media and online safety, including about the measures proposed in the Bill.
You can also provide direct feedback to the department on the Bill, until 21 January 2022.
For questions about the consultation, email the Defamation Taskforce at Defamation@ag.gov.au.