Australian Polity, Volume 9 Number 3 - Digital Version

MEDIA
CALLING THE TROLLS
TO ACCOUNT
/ KEVIN ANDREWS
Unlike the traditional media, people have been
able to anonymously defame and trash the
reputations of others on social media with
impunity. It is a realm in which the law has failed to keep
pace with technological change. The consequence is the
trolling that causes serious harm to many people. The
ABC presenter, Leigh Sales, complained recently about
the often-anonymous bullying on social media that is
“non-stop, personal, often vile, frequently unhinged and
regularly based on fabrications.”
Commonwealth powers to regulate
social media
There are three clearly applicable heads of power for
Commonwealth efforts to regulate social media:
• the post and telegraph power, the Commonwealth
Parliament’s power to make laws with respect to ‘postal,
telegraphic, telephonic, and like services’ (Section 51(v),
herein the ‘telecommunications power’);
In the previous edition of this journal, the suggestion was
made that the provision in the Broadcasting Services
Act (s. 91 of Schedule 5) which precludes a social media
provider being sued for defamation be repealed. The
decision of the High Court in the recent Voller case
enables a social media user, such as a media organisation,
to be sued for comments by third parties on its website,
but it fails to stop the mischief of anonymous trolling.
The impact of s. 91 of Schedule 5 of the Broadcasting
Services Act was alluded to by some of the High Court
justices, but the effect of the provision was not before the
High Court. Justice Steward appears to have observed
that if the view of the majority of the Justices is the law in
Australia, “it might also render Facebook itself, at common
law, the publisher of all posts made on Facebook.”
Further research suggests that the Commonwealth
can go further than simply repealing the provision and
introduce provisions requiring social media users to
provide identification to hold an account. This would
have a very significant impact on the misuse, trolling and
similar undesirable behaviour of many social media users.
• the corporations Power, the Commonwealth Parliament’s
power to make laws with respect to ‘foreign corporations,
and trading or financial corporations formed within the
limits of the Commonwealth’ (Section 51(xx)); and
• the incidental power in relation to both these heads of
power (section 51(xxxix)).
A requirement for identification
There appears to be no barrier to the Commonwealth
basing laws requiring social media accounts to be verified
by personal information based on the telecommunications
powers in section 51(v) of the Constitution. Indeed, there
are existing examples where Commonwealth by section
51(v) requires individuals to verify their personal identity
before accessing a telecommunication service, such as:
• The Telecommunications (Industry Standard for Mobile
Number Pre-Porting Additional Identity Verification)
Direction 2019 made under the Telecommunications Act
1997 which requires mobile carriage service providers
to implement customer identity verification processes
14 Australian Polity