Trolls No More? The Future of Defamation Litigation

On 1 December 2022, the Federal Parliament proposed the Social Media (Anti-Trolling) Bill, in an attempt to confront cases of defamation online. The bill’s introduction would pioneer notions of culpability for users and providers, whilst governing social media platforms in Australia. However, parliament’s problematic drafting of the bill has sent the legislative scheme for “trolling” awry.

The bill focuses on relieving authors and publishers from liability, and instead transferring any wrongdoing to social media companies. Although aiming to incentivise and promote a ‘complaint scheme’ for anti-trolling conduct, it allows perpetrators to dodge any sort of retribution.

Victims will not be able to litigate directly against offenders for any form of defamatory comment or claim made online. Essentially, “trolls” will evade accountability for their actions, whilst victims will struggle to obtain proper justice or meaningful remedies.

Traditionally, defamation cases focus on published material on any platform that harms a persons’ reputation. This is highlighted in the elements below:

  • Information was communicated to a third party/person by the defendant,
  • The information communicated identifies the plaintiff, and
  • The information was defamatory against the plaintiff.

Under section 12B of the Defamation Act 2005 (NSW), prior to litigation, the plaintiff must send a “concern notice” to the author of the defamatory material, containing the imputation to be relied on and an applicable period, up to 28-days (s 15), for an offer to make amends. When the applicable period has elapsed, the litigation can proceed. Clinically, the elements confer accountability onto the perpetrator and hold them liable if their material contains defamatory assertions.

However, the proposed bill’s transfer of responsibility contradicts and invalidates modern defamation litigation. Transferring liability from the author will not deter those publishing defamatory information or material and may further exacerbate the problem.

Shaping litigation for online defamation remains valuable in the ever-growing ‘Cyberspace’. As an estimated 89% of Australians use the internet, it may be presumed that a large portion of future defamations cases will involve online publications. The proposed Social Media (Anti-Trolling) Bill is somewhat innovative, but it must amend its features to provide victims with a platform for redress against offenders.

Ensuring that defamation matters are settled justly and without ambiguity is important. It should ensure that all users have a right to seek genuine remedial processes against defamation statements, made either in-person or online.