A federal government push to unmask vicious online trolls is at risk of creating confusion that could counteract its effectiveness in tackling abuse, the nation's online safety commissioner has warned.
Top legal organisations have also dubbed the proposal "piecemeal” and at risk of undermining years of work by state and territory governments to reform defamation laws in Australia.
A Senate committee is poring over the details of the Coalition's bill to give everyday Australians the power to "unmask trolls" online by demanding social media giants collect the personal details of Australian-based users.
The idea is that it would be easier for people who are subjected to vile, defamatory posts on social media to identify the authors of the content, giving victims more pathways for legal remedies.
But eSafety Commissioner Julie Inman Grant has told the committee the name of the bill, the Social Media (Anti-Trolling) Bill 2022, is misleading, because the legislation deals more with defamation law than actually tacking online abuse.
"To lump that all together under the guise of trolling, I don't think it's constructive," she said.
"Online defamation is a serious problem that needs to be addressed, and perhaps if it's named in accordance with what it's intended, to might help minimise the confusion."
Ms Inman Grant raised concerns with just how people would access other people's personal information under the legislation, if they were considering taking legal action for posts online.
"There needs to be this understanding that … at the moment there are billions of social media accounts that don't have any identity information tied to them," she told the committee.
"And so that the ability to unmask the trolls and to give that to an individual who may be in a long-running dispute with someone is, to my mind, not very safe.
"I think this kind of sensitive subscriber information should be provided to law enforcement, to designated regulatory bodies like ours, or defamation attorneys who have made out that a defamation action can be made, and need that information for the purposes of furthering the case."
Wrong approach, lawyers say
The Law Council of Australia told the committee the suggestion launching defamation claims were the answer to abusive material online was the wrong approach.
"We see trolling, that classic type of bullying, threatening behaviour, images, offensive material, very real types of conduct that cause great harm in our community as being something that the law absolutely must keep pace with," Law Council president Tass Liveris said.
"But defamation law is not the answer to that problem, because very little of what constitutes trawling, if any, will in effect be defamation law.
"The lengthy, expensive, often inaccessible defamation court proceedings, that have different requirements within state and territory jurisdictions, is not ultimately going to give the community that protection.
Cost of court action 'crippling'
Journalist Erin Molan and former Rugby League coach Anthony Siebold, both high-profile victims of online abuse, also appeared before the committee.
Ms Molan, who has campaigned for tougher online safety laws, spoke of her own challenges pursuing a defamation claim through the courts.
"This was not in a social media capacity – that was part of it – but against a member of the mainstream media," she said.
"I earn an above-average salary … and [court action] is crippling — it is crippling, the cost of it."
Mr Siebold, who quit as coach of the Brisbane Broncos NRL side after a campaign of online abuse against him, agreed the cost would be "significant".
He argued he had not considered trying to pursue the matter through the courts.
"It's not something that I've thought deeply about since the time that it happened, which is about 18 months ago," he told the hearing.
"You've got to understand that the time myself and my family had been in significant pain."
Lawyer Nyadol Nyuon told the committee about the experience of migrants and refugees being trolled on social media, explaining the large volume of abuse she is subjected to online.
She also said the legislation was more about defamation than stopping such vile behaviour, adding that legal option was out of reach for many.
"Even as a very privileged woman who works a full-time job, I would think twice before putting my money on a defamation claim," Ms Nyuon.
Concerns bill would undermine local laws
Liberal Senator Sarah Henderson questioned the Law Council and apparently criticised the organisation for not presenting any "interim" solution while demanding the bill be shelved.
The basis for her concern was a High Court decision from last year, which found media outlets were responsible for defamatory comments posted by members of the public.
The government has sought to deal with the ramifications of the decision, flipping the liability from the person or group running the page, onto the platform instead.
The Law Council's Connie Carnabucci, a former chief counsel for the ABC, said the High Court decision would put a significant impost on media organisations to moderate all content on their social media sites, even after going through strict pre-publication checks with their own legal teams.
But she warned the legislation before Parliament would "cut across" years of work by state and territory attorneys-general to reform defamation law, which is handled by state and territory governments.
