The laws were released in draft form late last year – and in its submission to the federal government, the Law Council has recommended the Commonwealth government defer its push to address social media defamation until the comprehensive review of Model Defamation Provisions, which is currently underway, is completed.

Law Council of Australia president Tass Liveris said that the best defence against social media defamation is a nationally consistent approach to law reform.

“The Commonwealth is to be commended for recognising the urgent need for our laws to keep pace with developments in online publishing, particularly in light of the negative impact trolling has on the lives and wellbeing of so many Australians.

“While the intentions of this draft bill are laudable, it is not likely to achieve the outcomes it seeks and we think there are better alternatives already being investigated,” he said.

The Law Council’s submission notes that despite its title, the draft bill does not address trolling but rather focuses on defamation.

“Defamation is actually only a very small proportion of what constitutes social media trolling. For many reasons, defamation law is likely to be a relatively ineffective mechanism for seeking individual reputational redress and for reducing trolling activity on social media. In practice, the draft bill will have very little impact in improving this situation.

“The Model Defamation Provisions review into the liability of internet intermediaries has been a substantial and in-depth process and it has the potential to ensure that reforms to the law of defamation in Australia are developed in a way which is comprehensive, complementary, certain and clear,” Mr Liveris added.

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“Therefore, the Law Council considers that intervention at the federal level in the law of defamation should not occur until the completion of the Stage 2 Review process and should form part of any package of reforms to the liability of online intermediaries more broadly.”

When announcing the proposed reforms, Prime Minister Scott Morrison said that the laws would ensure social media companies are considered publishers and can be held liable for defamatory comments posted on their platforms.

“Social media can too often be a cowards’ palace, where the anonymous can bully, harass and ruin lives without consequence. We would not accept these faceless attacks in a school, at home, in the office, or on the street. And we must not stand for it online, on our devices and in our homes,” the PM said in a statement at the time.

“We cannot allow social media platforms to provide a shield for anonymous trolls to destroy reputations and lives. We cannot allow social media platforms to take no responsibility for the content on their platforms. They cannot enable it, disseminate it, and wash their hands of it. This has to stop. These will be some of the strongest powers to tackle online trolls in the world.”

However, the Law Council is concerned that the draft bill does not adequately balance competing public interests, may leave victims without recourse and, in certain circumstances, may provide unwarranted complete protection from liability.

“These outcomes would be antithetical to the purported purpose of protecting people from trolling on social media,” Mr Liveris added.

“The Law Council reiterates its call for the law to place greater onus on the originator of defamatory online material.”