While people at home and around the world have been gripped by the spectre of Australians having their freedoms stripped away in the name of covid, another, more insidious cancer has been eating at Australians’ freedom, with barely any comment.
That cancer is the raft of legislation passed by the Morrison government — with bipartisan support from Labor — that more and more curtails Australians’ online freedom and allows ever-more intrusive government snooping in the Australian cybersphere.
One such law is the Surveillance Legislation Amendment (Identity and Disrupt) Bill passed earlier this year. This law allows the Australian Federal Police to secretly monitor supposedly private communications, hack networks with fake data, or take over someone’s online identity and pose as them. Police will also be able to covertly enter premises and to obtain access to, copy data from, or even remove computers. All with less oversight than an old-fashioned wiretap.
(Police in New Zealand, it might be noted, are also pressuring suspects into handing over their digital identities for police to use.)
The next bill to curtail Australians online activity also weaves another layer of complexity onto Australia’s already Byzantine defamation laws.
On Sunday, the Morrison government issued a chest-beating media release promising new court powers to force social media giants to “unmask” anonymous trolls who make defamatory comments online.
Prime Minister Scott Morrison and Attorney-General Michaelia Cash also pledged to reverse a High Court ruling that the operators of public Facebook pages are legally responsible for the defamatory comments of third parties.
Certainly, the pledge to reverse the High Court ruling is welcome: the idea that the owners of a Facebook Page were liable for comments made by others, whether or not the comments were removed, or even if the owners were even aware of the comments in the first place is patently ridiculous.
But how the rest of the proposed laws will work in practice is unclear — and what can be made out seems pretty ominous.
First, the federal government says it will require multinational social media companies to set up user-friendly, cheap and efficient complaints systems in Australia to respond to requests to delete allegedly defamatory comments, or reveal the identity of the people who posted them. That sounds encouraging.
But it may be a toothless process, because the government says the troll must consent to being identified or having their post removed.
[The government] says it will create “a new Federal Court order … that requires social media giants to disclose identifying details of trolls to victims” in cases where the troll does not consent, enabling a victim to bring defamation proceedings against the troll personally.
A social media company who “unmasked” a troll would have a defence from being held legally responsible for the defamatory comments. If the company did not do so, it could be sued itself and would be on the hook for any damages payout.
The Age
What is not clear is why this new type of order is even needed. Under current law, defamation complainants can already ask a company to unmask the identity behind an allegedly defamatory post. Proponents of the new law argue that it will make the process simpler and cheaper.
Senator Cash argues — correctly — that the High Court ruling leaves ordinary Australians “at risk of being held legally responsible for defamatory material posted by anonymous online trolls”. This is true, and it’s not hard to see activists who already use dozens of sock-puppet accounts to bully people online weaponising the High Court decision as deceitful lawfare.
But others are not so sure about the rest of the bill, worrying that it is yet another inch down the slippery slope to a full Chinese-style social credit system. Others say that simply claiming defamation — whether true or not — will allow easy unmasking of anonymous critics of corporations or governments.
“It’s not the tech companies they’re coming after, it’s you,” one commenter argued.
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