Top lawyers that the Morrison government’s proposal to amend defamation laws – traditionally a state and territory responsibility –is likely to increase legal costs,waste court time and make it harder to get defamatory posts removed.
In a submission to the federal government,,the Law Council of Australia said the government’s draft bill was unlikely to achieve its stated objectives and defamation law was “a relatively ineffective mechanism ... for reducing trolling activity on social media”.
Law Council of Australia president Tass Liveris said “intervention at the federal level in the law of defamation should not occur” while the states and territories completed a review of the laws that was already under way,under which “better alternatives” for reform were being investigated.
What the Morrison government’s defamation proposal does
Under the plan announced by the federal government in November,social media platforms would have a new defence against being liable for defamatory posts of users if they set up complaints schemes under which a person could ask them for the contact details of an anonymous commenter or to delete the post.
The government believes this may give platforms an incentive to delete some defamatory comments. However,platforms can’t delete a comment or hand over contact details of an anonymous author unless the commenter agrees.
The government proposes a new Federal Court order to force social media platforms to reveal a commenter’s identity in cases where consent is withheld. All courts already have this power.
The changes would also that the owners of public social media pages,including media outlets and public figures,are legally responsible for third parties’ defamatory comments. Tech platforms and commenters would continue to be liable.
The proposal goes further than existing defences and gives owners of social media pages immunity from being sued over third-party comments,even if they become aware of them and refuse to remove them. This is inconsistent with the law applying to physical noticeboards.
Under a reform process led by NSW,the states and territories were already investigating potential changes in response to the High Court ruling.
The Law Council said giving social media page owners “blanket protection” from liability for third-party comments “does not adequately balance competing public interests” and “may leave victims without recourse”.
In a separate submission,Sydney barrister Sue Chrysanthou,SC,and five other experienced defamation lawyers say the change may result in a person who is defamed in a Facebook post being in the “invidious position” of having no remedy because platforms have a new defence if they follow complaints processes,the page owner is immune from legal action,and the commenter may ignore orders to delete a post.
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