3AW Drive with Tom Elliot
Subjects: Social media defamation laws
TOM ELLIOT: Next guest is the Federal Attorney-General Senator Michaelia Cash. Good afternoon.
MINISTER CASH: Good afternoon, and great to be back on the show.
TOM ELLIOT: Well, thank you for joining us. So how will it work? So let's say, as often happens, someone says something terrible on Twitter, or Facebook or possibly even Instagram, and I feel I've been defamed and the account is a no name, no identity account, what under these laws could I do?
MINISTER CASH: Okay, so as you know, this is a world first, the Morrison Government introducing the new powers to force global social media giants. And what it basically is, as you've said, unmasking anonymous trolls online. So there'll be two separate pathways for someone who feels that they have been defamed to follow. The first is a complaints scheme pathway. What this will do is allow the complainants to determine whether the comments were made in Australia. So we've got to do that first. And if so, to obtain the contact details of the poster, but with their consent, so you will work with the social media company and as you know, often all you want is the comment taken down, you don't necessarily want to go any further. So that's what you'll do in the first instance. Now, what happens if the troll won't unmask themselves, you get to go off to the court, get an end user information disclosure order from an Australian court. They will have the power to tell the social media company unmask the troll and that way you can then proceed with your defamation claim.
TOM ELLIOT: What if the social media company can't, I'm not an expert on Facebook or any of the other platforms, but so many people have anonymous accounts. What if the social media company doesn't know who the identity of the person is?
MINISTER CASH: Well, the issue for the social media company is, if you do not know who this person is, so you've gone back to them, you know that they're located in Australia, so you're able to provide the country of origin information, you then are unable to get their email, the name of the person, their mobile phone number, or a phone number that could be used to contact the person or any other details, and we'll be working through with the social media companies, what those details are. Just say you can't get them, you actually don't get the defence. And guess what Facebook, guess what Twitter, they can sue you, the complainant will go after you because that's what the legislation says.
TOM ELLIOT: Right. So if I've been defamed, I go to Facebook or Twitter, I want the identity of the person who's defamed me, they either can't or won’t do it, I then sue the social media company?
MINISTER CASH: Yep. That is exactly right. And what we'll also do is provide the ability for the Attorney-General to actually intervene in proceedings, because remember, online law is actually not settled when it comes to defamation. So we're going to allow the Attorney-General to actually intervene in proceedings, first to provide clarity, obviously, to Australian individuals and businesses. But in appropriate cases, this may actually support victims to help address the imbalance of power between the social media company who they are now suing, and obviously the Commonwealth to put its position.
TOM ELLIOT: So basically, if I feel like I've been defamed, Facebook won’t or can't give me the identity of the person, I can ring you up and you will go and prosecute it on my behalf.
MINISTER CASH: This will be a process that we will obviously work through and that's why we're going out to an exposure draft, but where it is in the public interest, the Attorney-General could intervene on behalf of the Commonwealth in the defamation disputes.
TOM ELLIOT: What's Facebook had to say about this, you know, this far in your negotiations, have they said yes we can do this or no it's impossible or what?
MINISTER CASH: Well as you know, this is an ongoing discussion that the Prime Minister has been having with these big tech companies. Because in the first instance, obviously he was working through all of the work being done in the online safety space, in particular in relation to the takedowns scheme and in particular in relation to what is cyber-abuse. So we've been working through that. This is something that social media companies, I think they're pretty understanding now of what the position of the Australian Government is. But that is why, I will still work with them obviously because we should do that. And we will put this out to exposure draft. I understand it's going out tomorrow, and they will have an opportunity, like mums and dads out there, like small business owners out there, they will have an opportunity to comment and I would hope work with us.
TOM ELLIOT: Well, I mean, is it possible that Facebook might change its own policies and not allow anonymous accounts anymore?
MINISTER CASH: Well, that is certainly something that they may will do. And to be honest with you, though, I don't have a problem with that, because those who hide behind the cloak of anonymity, particularly if you just want to troll someone, abuse someone or defame someone, why should you be allowed to do that? Remember, this is only going to affect people who are out there, trolling, indulging in online abuse, image based abuse, and harmful online content.
TOM ELLIOT: We are getting a few calls coming through, Ms Cash, about virtual private networks, where you can use a VPN to make it seem as though you are overseas when in fact, you are not. Have you thought about getting around that?
MINISTER CASH: That is something that obviously we'll be consulting on, but ultimately, at the end of the day, you cannot hide your mobile phone data. Your mobile phone data will tell you where you are and when you look at the relevant contact details of a person and what it actually means, this is for the purposes of knowing who they are, the name of the person, the name by which they usually known, could be an email address, could be a phone number that's used to contact -
TOM ELLIOT: Let's say it is a mobile phone number, what do you ring the troll up and say, take that down or I'll come around and punch you in the face?
MINISTER CASH: No that's something that the social media company will be doing on your behalf. And it is clearly set out in the complaints mechanism in the draft legislation, the role that the social media company has. So in the first instance, you will actually go to the social media company and say, I believe that I have been defined and this is why the social media company must have a complaint process in place, they need to go straight to the person who made the comment within the timeframe, at this point of time is 72 hours, and tell them there is a potential complaint against them. And that's when you can work with them to actually take it down.
TOM ELLIOT: Finally, when will these new laws come into effect?
MINISTER CASH: They'll be introduced into the parliament and debated next year, because obviously we need to go out to consultation first. But this is something that over the break, I have to say on my back bench, the government back benches, they will be out there talking to their communities, because the response in the last 24 hours has actually been overwhelmingly positive to this.
TOM ELLIOT: I think if you can make it work it will be great.
MINISTER CASH: Thanks for that. Okay bye.