Two rulings in separate defamation cases – one involving John Barilaro, and the other targeting a pro-Labor Twitter account – show how Australia’s current laws already allow victims of online abuse to take their fight to court and win.
Google last week was ordered to pay Barilaro, the former New South Wales deputy premier, more than $700,000 over a series of “racist” and “abusive” videos published on YouTube channel Friendlyjordies.
The federal court ruling found that Google became a publisher responsible for the videos in late December 2020, when lawyers for Barilaro wrote to Google to demand their removal.
In a separate case in the federal court last week, Twitter agreed to orders to reveal identifying information about the anonymous pro-Labor account PRGuy17. The orders were part of a defamation claim from the far-right activist Avi Yemeni, who wants to unmask the account and uncover any ties to the Labor party.
Defamation experts say these two high-profile examples show how the law is already achieving what the former Morrison government claimed it was trying to do with its ill-conceived 11th-hour “social media (anti-trolling)” legislation.
“We cannot allow social media platforms to provide a shield for anonymous trolls to destroy reputations and lives,” the then prime minister, Scott Morrison, said in November last year. “We cannot allow social media platforms to take no responsibility for the content on their platforms. They cannot enable it, disseminate it, and wash their hands of it. This has to stop.”
The legislation would have required social media platforms to hand over the name and contact details of anonymous users who were alleged to have defamed someone online, otherwise the platforms would be held liable for the comments in defamation action. During the parliamentary inquiry into the so-called trolling legislation, the Attorney General’s Department admitted the bill was trolling in name only and much more focused on overhauling defamation law.
It was widely panned by legal experts, including defamation lawyers, victims’ advocates and the social media platforms. Even the eSafety commissioner, Julie Inman Grant – who already has powers to actually tackle abuse online – questioned what it would do to combat trolling, noting many people who abuse people online do so under their real name.
Sue Chrysanthou, a defamation lawyer who represented Barilaro in his victory against Google, was one of several lawyers to write to the committee arguing the bill had “many significant defects” and would make the situation worse, because it would make it harder for victims to have allegedly defamatory comments removed from pages if the owners of those pages were not liable.
“If the commonwealth intends to legislate to deal with bullying online, it should do so without interfering in defamation laws,” the lawyers said.
Legal experts questioned what the aim of the bill was, considering the stated public intent of the bill was already achievable under existing defamation law.
In the Barilaro case, Prof David Rolph, a media law specialist at the University of Sydney, said it doesn’t seem unfair that Google was asked to provide a defence as a publisher once it was made aware of the videos.
“I think the situation is different if someone is unaware, or if we get to a situation where we’re imposing positive duties to monitor content, just because of the sheer volume of user generated content that might be onerous even for large profitable media companies,” he said.
“The law already provided that the platforms are publishers if they knew about it, so the platforms had defences under existing law if they didn’t know about it,” Michael Douglas, a law academic at the University of Western Australia, said.
Google has handed over anonymous reviewer details in several defamation cases in Australia in the past few years and Douglas said the power to unmask who is behind allegedly defamatory comments is nothing new in defamation law.
“Courts have been able to do this for 50 years. It’s not like the Morrison government thought of anything at all. This has always been the case,” he said.
The new Labor government will not be bringing back the trolling bill. Changes to defamation law are likely to occur in the future, but through the existing process of the working group of state and territory attorneys general on resolving issues arising from the Voller high court judgment.
The judgment currently holds groups and page owners on social media liable for comments made on those pages, meaning media companies have had to limit the comments allowed on their pages.
As the PRGuy17 case proceeds, Samantha Floreani, a program lead at Digital Rights Watch, said she hopes it does not lead to another push to blame anonymity online for all online harms, such as trolling, abuse, and defamation.
“If public debate does arise off the back of this, I hope we can have a more nuanced conversation about anonymity and reducing online harm with a new government in place,” she said.
