Background

The Bill was introduced in Parliament on 10 February 2022 to create a new framework to handle defamatory comments published on social media in attempts to address some of the issues raised in the decision handed down by the High Court last year in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (Voller).

Reassurance for social media page owners

In Voller, the High Court determined that owners and administrators of social media pages and social media service providers can all be ‘publishers’ of content posted by third parties, and therefore liable under defamation law for these comments.  The decision raised concerns for organisations who managed social media pages as it resulted in social media page owners needing to increase moderation of their social media pages to remove potentially defamatory content.  Some organisations opted to remove their pages altogether to avoid the risk of inadvertently becoming liable for publishing defamatory comments.   

Notably, the Bill introduces a new carve-out for social media ‘page owners’. ‘Page owners’,  defined as any end user who maintains or administers a page on a social media service, will be taken not to be the publisher of the third party material for the purposes of the tort of defamation. This will provide some assurance for organisations who rely heavily on social media platforms to promote their business.   

What does the Bill introduce?

If the Bill is passed in its current form, the following changes will occur (amongst others):

• If material is posted on a page of a social media service and the material is posted in Australia, the provider of the social media service (such as Facebook, Instagram and YouTube) is taken to be a publisher of the material.

• A prospective applicant in a defamation proceeding can apply for an ‘end-user information disclosure order’ (EIDO), a new type of court order that requires a social media service provider to reveal the poster’s contact details or country location data to the applicant.

• Social media service providers have a defence in defamation proceedings if certain criteria are met, being:
  • the material was posted in Australia;   
  • the social media service provider has a complaints scheme that meets the requirements set out in the Bill (and the provider has complied with the complaints scheme in relation to the handling of the complaint); and
  • either the applicant has not applied to the court for an EIDO, or in instances where an applicant has applied for an EIDO, the social media service provider has disclosed the relevant contact details or location data of the poster of the defamatory content to an applicant in a defamation proceeding.

The effect of this defence is that where the social media service provider does not or cannot provide identifying information about the perpetrator of the defamatory post, the applicant may still have an action against the social media service provider. 

Not off the hook yet – additional social media obligations for some businesses

Although the Bill appears to relieve social media page owners of taking on the responsibility of monitoring third-party comments, businesses should be aware that this Bill only applies in the limited context of defamation claims.  Businesses may still have social media obligations under different legislative regimes.

For example, companies that operate in the pharmaceutical and medical device sector are bound by requirements in the Therapeutic Goods Act 1989 (Cth) (TG Act) and the Therapeutic Goods Advertising Code 2021 (TGAC) relating to the ‘advertising’ of therapeutic goods on various platforms, including on social media.  In this context, the definition of ‘advertise’ is broadly defined and the Therapeutic Goods Administration expects organisations who manage social media pages to:

• monitor non-compliant comments posted by third parties on their social media pages.  This includes, amongst others, comments containing restricted or prohibited representations (without requisite approval or permission), claims that are not consistent with the intended use of the product and unsubstantiated claims; and
   
• implement moderation procedures to capture any third-party generated comments indicating an unusual or adverse reaction to a product in order to meet their pharmacovigilance responsibilities.

Significance

Public reception of the Bill has been mixed.  While most social media providers and websites have mechanisms to remove potentially offensive or defamatory content, there is currently no uniform approach that these websites and services are required to comply with.  This Bill does little to address this gap.   

Concerns have also been expressed that the Bill may have the unintended effect of disincentivising page owners and service providers from having appropriate mechanisms to remove defamatory reviews (for example, in the context of online review platforms for health service providers).  Further, the Bill also raises potential privacy concerns, with the Office of the Australian Information Commission recommending less intrusive alternatives be implemented to limit the amount of additional contact details collected as part of the proposed complaints mechanism process. 

Next steps

The Bill has not yet been passed and was recently considered by the Parliamentary Joint Committee on Human Rights (Committee) in which the Committee determined further information was required to form a concluded view about the human rights implications of the Bill. 

In the meantime, businesses should take this opportunity to review their social media practices and their legal obligations regarding moderating social media pages.

Please contact us for more information.

Authored by Mandi Jacobson, Angell Zhang, and Bonnie Liu.