Australia: Social Media Bill must meet freedom of expression standards

Australia: Social Media Bill must meet freedom of expression standards - Digital

On 21 January 2022, ARTICLE 19 submitted comments on Australia’s Draft Social Media (Anti-Trolling) Bill, raising concerns that several provisions do not meet international human rights standards. In particular, we argue that the removal of immunity from liability for social media platforms will have a chilling effect on users’ freedom of expression and warn that the system of data collection and disclosure violates the standards on freedom of expression and privacy.  

The Draft Social Media (Anti-Trolling) Bill (the Draft Bill) was released in the last days of the 2021 Parliamentary sitting year. The Government announced that the Draft Bill would aim to protect Australians from online harms and defamatory comments, in particular, by limiting the possibility for comments to be posted on social media anonymously.

ARTICLE 19 is concerned that several provisions of the Draft Bill do not meet the requirements of international freedom of expression standards. In particular:

  • Many provisions of the Draft Bill are vague and undefined and do not meet the requirements of ‘legality’ under international human rights standards. For instance, the Draft Bill establishes limits to the right to free expression regarding ‘comments’ posted on social media platforms, but it fails to provide a definition of what ‘comment’ means for the purpose of the Bill. Similarly, Section 20 imposes the obligation to establish a nominated entity in Australia for those social media companies with at least 250,000 Australian persons who hold accounts but fails to define what ‘Australian’ means, as well as where these persons are supposed to be based in Australia to be counted for the sake of the threshold. The lack of clarity can ultimately lead to legal uncertainty for all actors and misuses, increasing the risk that defamatory claims are abused as tools to suppress.
  • The Draft Bill proposes to limit immunity from liability for social media companies. In Section 14, the Draft Bill establishes that social media platforms are to be considered publishers with regards to comments posted by users, and implies they can be held liable for defamatory comments posted by their users. This can lead to increased censorship or removal of any incentives for companies to engage in content moderation.
  • The Draft Bill puts the right to anonymity at risk. It obliges social media platforms to collect and retain the name, phone number, and email address of every Australia-based ‘commenter’ and disclose the relevant content details of the commenter under certain circumstances in order to assist in potential defamation proceedings. The Bill thus imposes a vast collection of personal data from individuals but provides no guarantee that the data will be gathered, stored and used according to international privacy and data protection standards. The requirement to collect and store such a vast amount of personal data raises a variety of challenges in terms of security breaches, lack of remedies if the personal data is hacked, and misuse of data, to name but a few.
  • Requirements to have a nominated entity in Australia raises human rights concerns: According to the Draft Bill, a social media platform that has 250,000 Australian account-holders must have a nominated entity in the host country. ARTICLE 19 has previously criticised such requirements in countries like Russia, Turkey and Nigeria. We are concerned that in countries where the judiciary lacks independence, these requirements will ultimately contribute to even more human rights abuses. Social media companies cannot resist pressure from law enforcement for long, especially when not complying means heavy fines and/or blocking of the website itself. We are worried that if Australia adopts these types of requirements, the worst offenders in the region will use this as an example for their own and potentially abusive legislation. Additionally, this requirement is much more difficult to implement for small platforms that meet the account criteria. They may not always have the means to have a nominated entity in every country. Such requirements benefit the bigger platforms in the long run as the requirements directly impact the competitive market and entrench their dominant position.

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