How to unmask an anonymous troll (according to the government)

On 28 February 2021, then Prime Minister Scott Morrison announced in a media release that the government would be proposing legislation that will give courts the power “to force global social media giants to unmask anonymous online trolls and better protect Australians online“. 

The Online Safety Act 2021 (Cth) (Act) passed later that year and made it easier for the targets of online comments to commence defamation proceedings against people criticising them online. 

Step 1: Be a politician

Coincidentally Christian Porter, Peter Dutton, Andrew Laming, Anne Webster, and John Barilaro commenced defamation proceedings in 2020/21. So much for speaking truth to power. 

The government claimed that the Act was a “world-leading move”, however, there was a foreign government that pipped us to the (political) post: Saudi Arabia – the renowned bastion of free speech and human rights.

Step 2: Invest the internet police with relevant power

Our Act expanded the powers of the eSafety Commissioner so that they are now able to fine or penalise individuals who post cyber-abuse material that targets adults. Cyber-abuse material targeted at an adult is defined as material posted online that “an ordinary reasonable person would conclude… [it] was intended to have an effect of causing serious harm to a particular Australian adult” and that same person “in the position of the Australian adult would regard the material as being, in all the circumstances, menacing, harassing or offensive.”

If material is deemed as cyber-abuse material then, under section 89, the Commissioner can provide the person who posted the offending content with 24 hours to remove it or risk a $110,000 fine. It’s at the discretion of the Commissioner whether this notice is issued after a complaint has been made.

Most importantly for anonymous internet dwellers, under section 194 of the Act, the Commissioner can require social media platforms to hand over users’ private data including their identity if it is relevant to the operation of the Act. The Commissioner is given full discretion in determining when a user’s identity is relevant to the Act. 

If a social media platform doesn’t comply with forking over the user data, it could potentially cop a $22,200 fine. This may seem like a drop in the bucket, however, if a social media platform decides that they don’t want to violate users’ privacy then it’s essentially $22,000 in the Commissioner’s back pocket every time they ask for it.

Step 3: Go after the basement dwellers

Now that a troll’s personal data has been exposed, they can be sued for defamation. In Australia, a plaintiff doesn’t even have to prove that the statement is false. They can take a public stance that the statement isn’t true AND they don’t have the added baggage of having to prove it! They don’t even have to be named in the offending post. How good!

Then, they can drag the troll through the court system and make them rethink the day they foolishly decided to pipe up and voice their criticisms. Once they’ve had enough, it’s likely they’ll be begging to settle outside of court and the case will get dropped. Too easy!

The people more likely to be affected by this are the people whose identities are being revealed at the eSafety Commissioner’s discretion. This paired with politicians’ seeming propensity to sue for defamation, has the potential to be a deadly mix for people who dare criticise the people in power.

The Hearsay podcast is a CPD podcast for Australian lawyers in the format of your favourites from the podcasting world. Hearsay takes an experienced guest through an area of their expertise to get you fun, convenient CPD the way you want it. Catch all the Episodes on the website.

By: Jacob Malby, Legal Researcher, Hearsay: The Legal Podcast

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