26 September 2023

Commissioner calls time on planned Bill

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A proposed Bill to create a framework for Australians to respond to defamatory content posted on social media has drawn problems according to the eSafety Commissioner, Julie Inman Grant.

Speaking at a Senate Inquiry into the proposed Social Media (Anti-Trolling) Bill 2022, the Commissioner (pictured) described it as conflated, confusing and oversimplified, saying it would also impact on the work of the Online Safety Act 2021, which only came into effect on 23 January.

“There is no question that online defamation remains a serious and intractable challenge that we must tackle,” Ms Inman Grant said.

“But to adjudicate this harm to reputation involves a long, complicated, expensive and arduous legal process that no doubt compounds the victim’s trauma.”

She said the primary issues that can be described about the proposed legislation is that it conflated, confused and oversimplified very complex technical and legal challenges, “creating public expectations that cannot be met by any Government Agency, and frankly no provision right now for a dedicated place to go when victims encounter online defamation.”

Ms Inman Grant said the problem eSafety faced was that Australians had nowhere to go to have online harm to reputation or potential defamation addressed, “so the flood gates have opened over the past few years with eSafety serving as the receptacle”.

She said that since the Online Safety Act’s new Serious Adult Cyber Abuse Scheme commenced, eSafety had received almost 500 complaints related to Adult Cyber Abuse, a third of which concerned potentially defamatory material and therefore did not meet the thresholds for serious adult cyber abuse under the Scheme.

“And, when a victim comes to us experiencing distress and hurt, no one wants to be told that their suffering doesn’t meet the serious cyber abuse threshold and that they must hire a lawyer, but that is the unfortunate situation our investigators are finding themselves in at the moment,” she said.

“I note that several submissions to this Inquiry have raised concerns about the terminology of ‘trolling’ and I think it is also fair to say that conflating ‘defamation’ with ‘trolling’ is mixing apples with oranges.”

The Commissioner said the catch-all term ‘trolling’ trivialised serious harmful forms of online abuse and noted that people could be trolled endlessly without being defamed.

“We’ve got a complex set of issues and there is no simplistic solution, so, my take here is we need to architect a cross-portfolio technology policy that doesn’t put online safety provisions in privacy Bills or in defamation Bills, but looks at a broad spectrum of harms and where they should sit,” Ms Inman Grant said.

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