No rational basis: Defamation law expert says Australia’s anti-trolling Bill should be canned

A defamation law expert has slammed the federal government’s so-called anti-trolling Bill, accusing it of changing Australia’s defamation laws for no adequate reason and through misleading means.

“My colleagues and I think that this legislation is misconceived and should not proceed,” barrister Sue Chrysanthou SC said on behalf of some of Australia’s preeminent defamation law experts.

“Not one person who supports this legislation has given an adequate reason, to my knowledge or the knowledge of my colleagues, as to why it should be changed … this Bill is a violent assault on the tort of defamation by the Commonwealth, for which no rational basis or reason has been provided.”

Barrister Sue Chrysanthou SC made those comments before a Senate legal and constitutional affairs committee hearing on Tuesday afternoon, which is currently conducting an inquiry looking into the Bill. She added that the Bill does nothing to address online abuse or trolling.

At its core, the Bill seeks to remove the liability held by owners of social media pages for any defamatory material posted on those pages. If passed, it would also create the requirement for social media companies to identify people if they post potentially defamatory material.  

The Bill was established shortly after a High Court judgment ruled media outlets were considered publishers of third-party comments on their social media pages.

The anti-trolling legislation has already received flak from senators, online abuse victims, and government agencies, with Australia’s eSafety commissioner having already criticised the legislation due to it containing no mention of the word “troll”. 

“One of our objections to this Bill is that it is piecemeal. It will increase legal costs and cause confusion because of its inconsistency with the state and territory laws,” Chrysanthou told the committee.

Liberal Senator and committee chair Sarah Henderson, who has claimed she was defamed on Twitter, dismissed Chrysanthou’s arguments as the barrister has not run a case against Twitter before.

“This Bill is all about Facebook. This Bill is all about Instagram. It’s all about Twitter. It’s about unmasking the anonymous abusers, about giving redress,” Henderson said. 

In response to Henderson’s comments, Chrysanthou said in her experience there has not been a need to sue Twitter or Facebook on defamatory grounds as yet. 

“Any client I’ve had that sued over a tweet or Facebook post, the persons who made those tweets or Facebook posts have been identifiable. It is large part of my practice — acting for people who sue over social media posts. So far there hasn’t been a need to deal with Twitter or Facebook,” she said.

Earlier in the day, Twitter appeared before the committee to call out Australia’s anti-trolling laws as an extreme risk to the privacy of Australians, particularly minority communities.

“We’ve seen a number of people both from a whistleblower space to even domestic violence situations, people that identify within the LGBTQIA community, utilising anonymous or synonymous accounts as ways and basically entry points into conversations about important matters,” Twitter director for public policy Australia Kara Hinesley said.

“We do think that there are potential safety concerns which would be the opposite result of the stated intention of the Bill.”

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