Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act about social media services, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 25 Oct 2021
Introduced HR 25 Oct 2021

2019-2020-2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

Social Media (Basic Expectations and Defamation) Bill 2021

 

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

 

 

 

Circulated by authority of Dr Anne Webster MP


Social Media (Basic Expectations and Defamation) Bill 2021

 

 

OUTLINE

 

The intent of the Bill is to enable the Minister to set basic expectations of a social media service provider regarding the hosting of defamatory material on social media platforms, and secondly to ensure that service providers are liable for defamatory material hosted on their platforms that is not removed in a reasonable timeframe.

 

The bill intends to address the lack of accountability on service providers when defamatory material is published on their sites.

 

 

Basic Expectations

 

The Bill gives the Minister power to make determinations about the basic expectations of a social media service.

 

In doing so, the Minister must have regard to the importance of social media services, the value of truth and free debate, the harmfulness of defamation, and the importance of preventing social media services from being used to facilitate unlawful conduct.

 

The Minister must also endeavour to consult the general public before making or varying a determination on the basic expectations of a social media service.

 

Should the Minister determine basic expectations for a social media service or services, the e-Safety Commissioner (the Commissioner) must be satisfied that said services do not contravene one or more of the basic expectations.

 

To do this, the Bill gives the Commissioner the power to require a service provider to prepare reports about the extent to which the provider complied with or contravened the basic expectations as set out by the Minister's determination.

 

Should the Commissioner give notice to a service provider to prepare such reports and the reporting requirements are not met, penalties will apply.

 

The Commissioner will have the power to request these reports on a periodic or non- periodic basis. The Commissioner cannot request a periodic reporting period shorter than 6 months or longer than 24 months.

 

When requesting the service provider report on its compliance to the basic expectations, the Commissioner must give due consideration to the practices of the service provider, the service provider's terms of use, and the number of complaints made to the service provider in the previous 12 months.

 

If the Commissioner is satisfied that the provider of a service has contravened one or more basic expectations for the service, the Commissioner may prepare a statement to that effect and publish this statement on the Commissioner's website.


Defamatory Material

 

The Bill sets out a process through which members of the public can make a complaint to the Commissioner, if they have reason to believe that they are being defamed by material posted on a social media service.

 

The Commissioner will have the power to investigate complaints made by members of the public and to issue defamation notices to service providers.

 

The Bill gives the Commissioner the power to issue defamation notices to a service provider in circumstances where a complaint regarding defamatory material has been made to the Commissioner, and the Commissioner is satisfied that it is reasonably likely that the material defamed or defames the complainant.

 

If the Commissioner issues a defamation notice to the service provider in relation to material posted on the service, and the material is not removed within 48 hours after receipt of the defamation notice, the end user who posted the material is liable to an action for defamation for publishing the material, the provider is jointly liable with the end user for that defamation.

 

In other words, service providers can be liable for defamation if that service provider is issued with a defamation notice by the Commissioner and the defamatory material is not removed within 48 hours.

 

The Bill also gives the Commissioner investigatory powers to determine the extent to which an end-user has or is posting defamatory material.

 

The Bill sets out a process through which end-users can apply to the Administrative Appeals Tribunal for review of the decisions made by the Commissioner.

 

 

FINANCIAL IMPACT

 

The bill will have no financial impact.


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Social Media (Basic Expectations and Defamation) Bill 2021

 

This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the bill

 

The intent of the Bill is to enable the Minister to set basic expectations of a social media service provider regarding the hosting of defamatory material on social media platforms, and secondly to ensure that service providers are liable for defamatory material hosted on their platforms that is not removed in a reasonable timeframe.

 

The bill intends to address the lack of accountability on service providers when defamatory material is published on their sites.

 

 

Human rights implications

 

The Bill interacts with human rights on several counts. It is likely that this Bill limits the right to freedom of speech and the right to privacy of an end-user of a social media service who posts what could be deemed to be defamatory material.

 

However, these limitations are necessary in order to ensure that all users of social media services are protected from harassment, vilification, defamation, and abuse by other users.

 

 

Conclusion

 

This bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

Dr Anne Webster MP