The proposed laws, currently before Parliament, seek to establish a requirement for social media service providers to have a complaints scheme in place that allows victims of defamatory comments to both make complaints and request the personal information of the maker of those comments.
Under the proposed laws, social media service providers would be liable to defamation for these types of comments if their platform does not have an appropriate complaints scheme. In a submission to the parliamentary body currently reviewing the proposed laws, the commissioner listed out a plethora of issues, ranging from technical to unintended societal ones. On the technical side of things, while Inman Grant said she does see value in the complaints scheme, she noted it is currently unclear whether social media platforms are even capable of collecting and holding large amounts of personal information in a private and secure manner.
She explained a person’s identity or contact details cannot always be adequately established through information held by a social media platform as this information is generally only available through querying restricted databases or seeking further end-user information from elsewhere. For example, information relevant to the creation of an email account will generally be held by third parties, such as Google in relation to a Gmail account, or a carrier or internet service provider in relation to an email account associated with a broadband home internet subscription. The commissioner added that the prohibition of the use of temporary and “throwaway” email services is currently not enforced across the industry, which means there are currently lots of users who use an unattributable email address to create accounts.   If a social media account has been created through these means, the commissioner said it would, in most cases, be impossible to identify a person. There is also no guarantee that email accounts are monitored by end-users, she added. According to Inman Grant, it’s also unclear how social media platforms will be able to meet the requirements of the draft Bill of having to ascertain whether a defamatory comment is made in Australia.
“Reliance on the service’s geolocation technology may limit the efficacy of the draft Bill,” the commissioner said.
Inman Grant noted the use of IP obfuscation technologies such as Virtual Private Networks (VPNs) and proxy servers which make resolution of an end-user’s true IP address very difficult. “[These technologies] makes it impossible for a social media service to accurately gauge an end-user’s geographical location if IP address geolocation comprises a component of its geolocation technology,” Inman Grant said. Societally, the eSafety commissioner has called for the anti-trolling laws to be renamed to something related to defamation. She said there is a risk of public confusion over what the Bill seeks to achieve if the present name is preserved due to there being no mention of the word “troll” in the laws. “We believe there is a risk that a law which seeks to address defamation but uses the terminology of trolling may compound the confusion about where adult cyber abuse stops and defamation begins, and where to go for help with each of these issues,” she said. She also said the proposed anti-trolling laws may unintentionally deny low-income households from using social media services due to its requirement for all social media accounts to be linked to both an Australian mobile number and email address.
At a practical level, the commissioner said this could lead to low-income households missing out on opportunities to stay connected with family and friends, keep up to date with essential information, and find support online. Last month, Inman Grant shared similar concerns with the Select Committee on Social Media and Online Safety, which was set up to probe social media platforms on their conduct late last year as part of efforts to build on the anti-trolling laws.
At the time, she outlined that the laws could be misused due to the lack of elements explicitly preventing cyberbullying and online abuse. “I think [the anti-trolling Bill] can lend itself to a lot of retaliation, a lot of vigilante-style justice,” she said last month. The anti-trolling legislation review and social media probe are both looking to provide their findings ahead of Australia’s upcoming federal election. Liberal Senator and Attorney-General Michaelia Cash previously said the social media reforms are among her party’s primary items for this year.

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