This is a process known as preliminary discovery. Of course,going to court always involves significant expense,which is why it is an unattractive option for the average person.
In some respects,the proposal benefits platforms including Google and Facebook,because they could not be held liable for defamatory posts where the person responsible for them is readily identifiable.
That would mean former NSW Deputy Premier John Barilaro’sproceedings against Google over allegedly defamatory videos posted by YouTube personality Jordan Shanks could not proceed. He could only sue Mr Shanks,who is not hiding behind a cloak of anonymity. Mr Barilaro has already settled his case against the YouTuber.
The federal government’s plan appears to draw froma NSW Bar Association submission to a defamation reform process that is already happening at the state and territory level. That proposal would involve sending a written complaints notice to a digital platform,not seeking a costly court order.
Professor David Rolph,a defamation expert at the University of Sydney,said there had already been a number of applications in recent years in the Federal Court for preliminary discovery to unmask “the identity of a person responsible for posting content” online.
State and territory courts also hear defamation cases,he said,but “the effect of the new powers ... will be to increase defamation cases being brought in the Federal Court”.
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To date,defamation law has been the responsibility of the states and territories. Until recently,the law was uniform across the country because the states and territories passed mirror legislation.
There is now a wrinkle in that uniformity because Western Australia and the Northern Territory have yet to pass amendments to the laws agreed by all jurisdictions in July 2020.
Professor Rolph said the proposed new powers only related a “narrow part of defamation law”. The federal government could legislate to create its own defamation law,not just in this area,which would “promote uniformity”.
Separately,the federal government is proposing to change the law followingthe High Court’s decision in former Northern Territory youth detainee Dylan Voller’s defamation case against media outlets over allegedly defamatory comments posted by third parties on their public Facebook pages.
The High Court ruled the media outlets were legally responsible as “publishers” of those comments,even if they were not aware of them. The case will now proceed to a NSW Supreme Court trial to determine if the comments were in fact defamatory and if the media outlets have any defences.
Senator Cash said the Voller decision meant “ordinary Australians are at risk of being held legally responsible for defamatory material posted by anonymous online trolls”,and the reforms would make clear that people operating or maintaining social media pages are not publishers of comments made by others.
Professor Rolph said it would seem fair to change the law so that Facebook page operators were not held liable for third-party comments when they were unaware of them. But it is not yet clear if the proposed changes could give greater protections to people in online contexts than in the “real world”.
“If a person had a physical noticeboard and someone put defamatory material on it,and the person became aware of it and they chose not to remove it,they could be held liable as a publisher,” he said.
The Morrison government has promised to release an exposure draft of the proposed laws in the coming week.
Defamation experts are waiting with bated breath to see how these thorny questions are answered.