Legal experts have raised fresh concerns about a federal government plan to introduce new defamation laws for social media posts, saying changes to the bill recommended by a Senate committee do not overcome fundamental flaws in the proposal.
Top defamation lawyers and academics warned earlier this year that the Morrison government’s proposal to change national defamation laws – traditionally a state and territory responsibility –is likely to increase legal costs and make it harder for victims of defamatory slurs to get online posts removed.
The Senate Legal and Constitutional Affairs Legislation Committee examined the bill and recommended in a majority report last week that it be passed with amendments aimed at addressing some of those concerns. Labor Senators said in a minority report that they did not support the bill without further and substantial changes.
Michael Douglas, senior lecturer at the University of Western Australia’s Law School, said the majority’s proposed changes were “a step in the right direction, but they should take a few more steps and chuck the whole thing in the bin”.
“They are persisting with this thing despite the almost universal opposition of experts,” he said.
Even with the amendments, he said, the proposal would do very little for ordinary people and “the bill has never been about ‘trolling’ or ‘online safety’,” as the government has suggested, but defamation law.
At the heart of the government’s proposal is a plan to give social media platforms a new defence against being held liable for the defamatory posts of users if they set up complaints schemes under which an aggrieved person can request the contact details of an anonymous commenter or for a post to be removed.
The government believes this may give platforms an incentive to delete some allegedly defamatory comments. However, the initial proposal said platforms could not delete posts or hand over an author’s contact details without the commenter’s permission, or a court order compelling the contact details to be provided.
The majority of the Senate committee, including three government senators, said the proposal should be tweaked so that social media platforms “can ‘take down’ the poster’s alleged defamatory material, within 72 hours, without the poster’s consent” if the commenter had not responded.
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