Australia’s planned anti-trolling law may silence political critics

A law intended to tackle anonymous trolls on social media is unlikely to stop online bullying, but it could allow Australian government ministers to continue a trend of suing their critics

By Alice Klein

Australia’s prime minister Scott Morrison has said that “anonymous trolls are on notice”. His government released draft legislation on 1 December designed to force social media companies to expose the identities of anonymous users who post defamatory comments.

“These will be some of the strongest powers to tackle online trolls in the world,” Morrison said when announcing the proposed law. The legislation is particularly aimed at protecting women and children who are most vulnerable to online abuse, he said.

But experts say the legislation is political theatre because it won’t do anything to stop most forms of online bullying. Instead, it could undermine individuals’ privacy and fuel the current trend of government MPs suing their social media critics.

If the proposed Social Media (Anti-Trolling) Bill is passed, it will allow Australians who feel they have been defamed on social media to request court orders forcing providers to disclose the real names, country locations, phone numbers and email addresses of users who have allegedly defamed them. The idea is to unmask trolls who have been hiding behind anonymous user names so that legal action can be launched against them, as long as they are also in Australia.

If the social media company can’t comply, because it doesn’t know the real identity of the accused user, or it refuses to comply, it will be held liable for the defamatory comments. “It is in the social media company’s interests to make sure that they have a very voracious way of ensuring that they can actually tell people who this is. Otherwise, they’re the ones who are going to get the case brought against them,” said Morrison.

This is a major problem, because many people set up accounts with fake details, says Jennifer Beckett at the University of Melbourne in Australia. Requiring users to verify their identities with ID would mean handing over private information, she says.

The proposed law wouldn’t even deter most kinds of online trolling, because only a small portion of it actually constitutes defamation, says Beckett. To be considered defamatory, a comment must be shown to harm someone’s reputation. Most online bullying involves insults like calling people “fat” or “ugly”, which are upsetting but not against the law in Australia.

Many social media users who go by their real names still insult others on a regular basis, so the threat of losing anonymity isn’t going to change their behaviour, says Beckett. “This legislation feels disingenuous because it isn’t really going to help the people that the government says it cares about,” she says.

Some of the people who may benefit from the proposed law include government figures who have the wealth and resources to launch defamation cases, says Beckett.

Several high-profile defamation cases have recently been launched by members of Morrison’s government against ordinary, non-anonymous citizens on social media. Defence minister Peter Dutton, for example, won a defamation case against refugee advocate Shane Bazzi on 23 November. Bazzi was ordered to pay Dutton A$35,000 (US$25,000) for tweeting that he was a “rape apologist” and linking to an article in The Guardian about Dutton saying female asylum seekers were using rape claims as ploys to get into Australia.

In March, Dutton told a radio station he wanted to sue more social media users, including those with anonymous accounts. “Some of these people who are trending on Twitter or have the anonymity of different Twitter accounts, they’re out there putting out all these statements and tweets that are frankly defamatory,” he said. “I’m going to start to pick out some of them to sue.”

Other recent cases include government MP Andrew Laming launching legal action against Louise Milligan, a journalist at the ABC, Australia’s national broadcaster. She later agreed to pay Laming A$79,000 in a defamation settlement. Government MP Anne Webster also sued a Facebook user for defamation, winning A$875,000 and New South Wales MP John Barilaro sued a YouTuber, who settled out of court.

Michael Douglas at the University of Western Australia says the government’s proposed anti-trolling law could facilitate more defamation cases against ordinary Australians. “This proposed law is political theatre, designed to frame government ministers suing regular citizens as somehow morally justified as a ‘fight against trolls’,” he says. “I would not be surprised if we see more and more cases of politicians suing.”

In 2018, the Morrison government introduced another law targeted at tech companies that was meant to keep Australians safe from terrorism and organised crime but has since been used to investigate journalists. The Assistance and Access Act can be used to force secure messaging services like WhatsApp to help police access metadata and encrypted communications. It was used in Australia’s biggest-ever crime bust in June – which led to more than 300 offenders being charged – but has also been used to investigate ABC reporters after they published allegations of Australian war crimes in Afghanistan.

“[The government have] used these powers against serious criminals, but they also haven’t hesitated to use them against journalists,” says Vanessa Teague at the Australian National University. “This agenda has a serious negative impact on the capacity of Australians to communicate freely and securely,” she says.

The proposed Social Media (Anti-Trolling) Bill will now be opened for public consultation so that stakeholders can provide feedback before it is formally introduced to the Australian parliament.