Tim Watts (Gellibrand, Australian Labor Party, Shadow Assistant Minister for Communications and Cyber Security) Share this | Hansard source

I am pleased to rise to speak in support of the establishment of this inquiry and, in doing so, I acknowledge the Speaker's significant interest in this issue in the past. This is an important and substantive issue on which Labor will offer constructive bipartisan support. By now, all Australians are all too familiar with the very serious harms that can be caused to individuals by other individuals' conduct on social media platforms. The world has read in great detail about the great variety of these harms in the recently leaked Facebook Papers and the disclosures by the whistleblowers associated with that. The safety of Australians in the face of these harms is properly a role for government. Labor has shown repeatedly that we are ready to work constructively with the government, on a bipartisan basis, to implement substantive solutions to address these harms.

As the member for Greenway, the shadow communications minister, indicated in her comments, the terms of reference for this inquiry are very broad. And it will be important for this committee to consider the different ways that different online harms manifest themselves, and the different potential remedies for these harms. Those in this chamber know defamation proceedings have long been a common remit of people who believe that their reputation has been harmed by statements made about them, and seeking compensation for the harm done to them by those statements. The law of defamation obviously applies just as much to statements made online as it does anywhere else.

However, it must be said that, to avail yourself of this remedy, you need to engage legal representation. Even receiving legal advice in this respect is beyond the means of most people in our society. It is not an achievable remedy. Following up that legal advice with court proceedings is a privilege available only to those with very significant financial resources available to them. That's why we see this remedy being most commonly availed of by the powerful in our society—people like members of parliament, those of us in this chamber.

In this term of parliament, the media has reported on defamation concern notices being issued by, at least—this was just a very quick scan—the member for Pearce and the member for Dickson, and at least 13 separate concerns notices or defamation threats were sent by the member for Bowman. Solicitor Michael Bradley has pointed out that one of these defamation threats from the member for Bowman was made against the administrators of the Facebook page of the Older Women's Network, a 35-year-old not-for-profit that advocates for older women on issues like income security, homelessness, ageism, elder abuse and domestic violence. The member for Bowman seems to have avoided the very significant costs of engaging solicitors to issue that specific defamation threat because that was sent to the Older Women's Network by one of his electorate officers. No doubt there have been more defamation threats issued by members and senators in this place that haven't been reported in the media. It's a common remedy pursued by the powerful in our society when things they don't like are said about them online.

I note in the media reporting leading up to the establishment of this inquiry discussion about new potential defamation Federal Court orders relating to the unmasking of anonymous social media account holders in relation to defamation proceedings. One media report indicated that the government had said that it would establish a new Federal Court order that:

… requires social media giants to disclose identifying details of trolls to victims, without requiring consent …

It's an interesting proposition because the Federal Court already has the power to order a third party to attend court or to produce documents to identify prospective respondents. Professor David Rolph, a defamation expert at the University of Sydney, has said that there have already been a number of applications in recent years in the Federal Court for preliminary discovery to unmask 'the identity of a person responsible for posting content'. This isn't an arcane rule buried at the bottom of the statute books. It's not dead-letter law. It gets a lot of use. Indeed, there were three such orders made in March 2021 alone, all involving Google and all for the purpose of obtaining information as to the identity of a party against whom the person wished to commence a proceeding.

In 2015 the court ordered HotCopper, Australia's most popular stockmarket internet discussion site, to make discovery of all documents directly relevant to identifying a respondent who made derogatory comments regarding the management of a mining company. In March 2020 the Federal Court ordered Google to reveal the identity of an anonymous user who posted an allegedly defamatory review, and Google provided the user's IP address. The Federal Court ordered Optus to reveal the identity of the owner of that IP address. These orders have also been used by rights holders to unmask the details of persons who have engaged in copyright infringement—most famously, those who were involved in the copyright infringement of the Dallas Buyers Club movie. So it will be interesting to see the way that this inquiry investigates what supplementary discovery processes are created by this proposed new law.

A different manifestation of online harms is the bullying and abuse that has become so common on social media. The victims of this bullying and online abuse are regularly individuals who are not in positions of power. Women, people of colour, people from the LGBTIQ community and young people are often particular targets of this kind of online bullying and abuse. Let's be frank, it is rare to see defamation proceedings from people in these situations. What the targets of this kind of online bullying and abuse most often want is for the abuse to be stopped and for the offending material to be taken down from the internet. The eSafety Commissioner already has significant powers in this regard.

The eSafety Commissioner's already legislated powers in this respect include a cyberbullying scheme that has long been in place for children under which the eSafety Commissioner can require the removal of material from a range of online services—including online gaming platforms, content-sharing sites and messaging services—not just social media platforms.

There is an adult cyberabuse material scheme under which the eSafety Commissioner can require the removal of adult cyberabuse material that targets an Australian, if they're satisfied the material is posted with the likely intention of causing serious harm, and backed up by a civil penalties regime that can be imposed on the people who posted the material and the provider of the service where it appears.

The eSafety Commissioner's work is also backed by information gathering powers to obtain identity information, including basic subscriber information for anonymous accounts. Importantly, this legislative regime is backed by the extensive day-to-day work of the eSafety Commissioner, liaising directly with social media platforms and developing a relationship so that information can be shared and acted on promptly to ensure that action is taken and the regime is not simply dead-letter law. It's a substantive regime addressing a substantive issue, and no-one needs to engage lawyers to take advantage of it.

This issue of online abuse and bullying is too important for fluffy announcements that aren't matched by delivery. But, unfortunately, this inquiry comes very late in the piece—a summer inquiry into a serious issue in the shadow of a federal election. It really does follow a bit of a pattern by the Morrison government of grand announcements followed by much-delayed delivery, if delivered at all, in this space. We've see it on everything from legislating the Online Safety Act, to reforming online privacy law, to improving digital literacy in the community, and now this inquiry.

It was 2½ years after the Briggs review recommended it, back in 2018, before the Morrison government introduced legislation to establish its Online Safety Act. It addresses the same issues of online abuse and bullying that this new inquiry, which will run over the summer holidays, called in the shadow of the federal election, will address. The ACCC recommended a new online privacy code for digital platforms in 2019, and the government is yet to fully implement that. Strangely, though, while it took the Morrison government 2½ years to deliver on its Online Safety Act, and it's now establishing a new inquiry into the issue, suggesting that it believes there might still be more work to do in this space, the Morrison government has, of course, promptly lined up a $4.4 million ad campaign before the election, telling Australians everything that it's doing to keep them safe online—always very quick to act on the marketing campaign but less quick to deliver on the substance.

This inquiry comes very late in the term of this parliament. It's an open question how much time the parliament will have, how many sitting days the parliament will have, to implement the findings of this inquiry. Indeed, there are only, I think, four sitting days in the Senate in the next six months. So I hope that, in relation to the outcomes of this inquiry, planning has been done to make sure they are substantive and to implement them.

I do feel for the Australians who care about this issue and will have to give up some of their summertime, some of their summer holiday, a much-deserved break for Melburnians and Sydneysiders, to make submissions into this inquiry over the summer. This would have been better addressed with a substantive inquiry sometime before the establishment of this inquiry.

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