Proposed Laws to ‘Unmask Trolls’ are Pointless Posturing

[This rant was originally published in the Gazette of Law & Journalism.]

The?Morrison Government is proposing to “unmask trolls” with?a forthcoming Bill.

Apparently,?the law will create “a new Federal Court order … that requires social media giants to disclose identifying details of trolls to victims”.

When I first heard of the proposal I thought to myself: “we can already do that”.

Defamation lawyers are well practised in obtaining court orders to compel the companies behind online platforms – like Facebook, Twitter and Google – to reveal the identities of anonymous users.

They can do so via processes of several superior courts, known as either preliminary or pre-action discovery. For example, rule 7.22 of the?Federal Court Rules 2011?(Cth) allows a “prospective applicant” (someone who wants to sue) to apply to the Court for an order against a person (e.g. a company like Google LLC) to reveal the identity of a “prospective respondent” (the person the prospective applicant wants to sue).

In the last year or so the Federal Court has issued several orders to this effect in the context of anonymous online defamation. These orders may even bind those platforms based overseas.

In a given defamation case, there may be several publishers of the same defamatory matter, especially where the content is online – e.g. Porter sued both Louise Milligan and the ABC; Barilaro sued both friendlyjordies and Google.

If you commence litigation against one of those publishers but don’t know the identity of others, you can then seek a subpoena to uncover the “trolls”. News organisations and journalists are protected from this stratagem via special shield laws (among other things), but others are not.

Anyway – this is just another angle on the pointlessness of this proposal.

And it is not like these existing processes are new. In 1974, the House of Lords decided a case that recognised a type of order now known as a?Norwich Pharmacal?order.

If a person gets mixed up in the tortious acts of some other anonymous person (e.g. by facilitating publication), then a court may compel the person to reveal the identity of that other anonymous person.

In my view this development was grounded in literally centuries of case law … a court of equity will act in aid of legal rights (i.e. to enable vindication of defamation – a legal cause of action) in equity’s auxiliary jurisdiction.

Like many of the announcements coming out of the Morrison government, this “unmasking” aspect lacks substance.

It sounds like it has been thought up by someone with little understanding of the law. You would think with the number of law grads floating around parliament house, and suckling at the teat of the public purse, someone would have piped-up about this.

If the law’s aim is to create a narrative to justify ministers and former ministers suing their critics, as if them punching down is somehow justified as a fair response to “trolling”- well, I’m not buying it. I hope the public doesn’t either.

ANNENDUM OF 1 DECEMBER 2021: This article was written in November, before the release of the exposure draft of the Social Media (Anti-Trolling) Bill 2021 (Cth). Other parts of the Bill are more deserving of criticism than that discussed here. Those aspects are considered elsewhere; see, for example, the analysis of Bennett + Co (published 2 December 2021). This Bill is a love-letter to Murdoch and tech oligarchs, packaged in a way to give Dutton cover for bullying charity workers with litigation. Anyway. I stand by the rant above.??