Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

The defamatory abuse, denigration and harassment which is being posted every second of every minute of every day on social media in this country, particularly on Facebook and the extremely toxic Twitter, must stop. This is one of the principal reasons political discourse in this country has degenerated to such appallingly low standards. This must change. We, Australians, are better than this. Last night I posted on Twitter the powerful, emotional speech by the member for Boothby, Nicolle Flint, who has called out the Labor Party, GetUp and the unions over the most disgusting campaign against her at the last federal election. Much of this was facilitated through an unceasing barrage of false, misogynistic, abusive and of course defamatory publications on Twitter, cowardly anonymous posts which are beyond the reach of Australian law. Even my post last night was met with more abusive and defamatory comments.

The loss of the member for Boothby, my good friend and a warrior for Liberal values, is a great loss to this parliament, to the people of Boothby and to the Liberal Party. The Leader of the Opposition said this morning on ABC radio that he stood by Ms Flint at this time, yet it was Senator Wong who was leading the charge on behalf of Labor in its campaign against Ms Flint. These are weasel words from the Leader of the Opposition and from Labor. This is an issue above politics. Every woman deserves to feel safe when she goes to work, no matter where she works. The Morrison government's response to the distressing allegations by Brittany Higgins, including the commissioning of an independent review into Commonwealth workplaces by Sex Discrimination Commissioner Kate Jenkins, is well underway.

In recent days I've spoken a lot about the need for urgent change, including reform of state and territory criminal justice systems, to ensure that more victims of sexual assault receive justice when their cases go to court. However, in this contribution, I want to focus on the urgent need for social media defamation law reform in Australia. Every Australian deserves to feel safe online, no matter how they engage, whether it be connected with work, family, friends, shopping or leisure. The global digital platforms have an ugly history of showing scant regard for the material they publish. Currently, social media companies cannot be held responsible for content they publish because, under schedule 5 of the Broadcasting Services Act, they are not considered as hosting the content in Australia. This is purely because their web servers are located overseas. This is untenable. It is a matter of common sense and law that these companies publish content in Australia, but because their web servers are located overseas they currently cannot be held liable for what they publish, no matter how defamatory it is. In the meantime, peoples' reputations can be ruined by a single viral post, a barrage of online abuse, a misleading photo or a quote taken out of context. All of these continue to be published in Australia by companies like Facebook and Twitter without any legal repercussions for this defamation.

It is unacceptable that social media giants have, for so long, evaded responsibility for the content they publish. This cavalier approach to the lives and reputations of ordinary Australians must be stopped. It is time to reform defamation law in this country. Such reform would build on the Morrison government's strong commitment to combating online abuse, such as our children's online safety reforms and the Online Safety Bill, which combats violent, abusive and other similar material.

This government has also passed world-leading legislation to ensure that Google and Facebook pay for the Australian news content they use in this country. However, it is clear that if left to their own devices these global giants will do everything they can to escape liability for content they publish, even if it means recklessly exposing Australians to the ravages of online defamation. The hypocrisy of these companies is galling. Facebook and Twitter routinely block or take down posts they consider to be politically controversial or offensive but will continue to publish defamatory posts long after the affected person has notified them and lodged a complaint, or after a court has issued a warrant for the post to be taken down.

Last May I informed the Senate about two anonymous Twitter accounts that, over three years, posted vile, abusive and defamatory content about me. I detailed how I believe that the current member for Corangamite had some direct or indirect control over one of those accounts, and her subsequent denials are simply not credible. These posts included false and defamatory claims that I was guilty of—

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Urquhart on a point of order?

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I would remind the senator opposite that, in accordance with standing order 193, improper motives or personal reflections on other people in these houses is not appropriate. And I would ask her to withdraw that.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Henderson, you made some comments, as I was listening, in relation to the member for Corangamite in the other place, and I'd ask you to consider your statements, to consider withdrawing those statements.

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Well, I don't believe that they warrant a withdrawal. I've previously put these on the record, and I am simply saying that I am concerned about the current member for Corangamite and the direct or indirect control—

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Urquhart on the point of order?

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

It is a direct imputation on a member in the other place, and I would ask the senator to withdraw.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Payne?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Further to the point of order, I understood Senator Henderson to say that the matters she has raised this morning are already on the record. Whether that has relevance to your ruling and to the advice from the Clerk, I would seek that you consider that as well.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Henderson, I'm concerned that some imputations were made on the member in the other place, the member for Corangamite, and I'd ask you again to consider withdrawing those statements.

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

The concerns I raised in relation to the member for Corangamite were detailed extensively in a contribution I made in May last year, and there was no objection raised by Labor. And I spoke extensively about the matter and what actually happened in relation to these anonymous Twitter accounts. These are detailed in that speech, and there was no objection by Labor in relation to that matter.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Wong?

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

First, I would say to the senator that the fact that an objection was not made previously is no answer to a ruling now. Second—and I would say this to the minister, too—regardless of who is in the chair, if a senator is asked to withdraw, the convention is that the senator complies. I would invite the government minister to encourage the senator to comply. If the senator fails to comply then, obviously, the option for the Acting Deputy President is to report the matter to the President, but I would really encourage the government senator, Senator Henderson, not to go down this path. We all have to withdraw at times; I've withdrawn lots of things over many years!

Senator Sterle interjecting—

Senator Sterle, I reckon you might even have had to do more! I understand there's a political contest, but I would encourage Senator Henderson to comply with the request of the Acting Deputy President.

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I withdraw, Madam Acting Deputy President Walsh, but I want to draw to the attention of the Senate my contribution on this matter, where I extensively canvassed these matters in my speech of last May. When I spoke, I spoke about the false and defamatory claims made into anonymous Twitter accounts—

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Wong on a point of order?

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The senator can't then repeat the content of the very remarks that she's been asked to withdraw.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Henderson, I note that you agreed to withdraw the comments, and I thank you for that, but you can't then repeat the comments. Your withdrawal has to be unconditional. I would ask you to continue on that basis, please.

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Thank you very much, Madam Acting Deputy President, but I did not repeat those comments—I simply made reference to—

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Henderson, I would ask that your withdrawal is unconditional and that you would please move on.

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Yes, I withdraw it and I'll simply say that I'm referring to false and defamatory claims in relation to two anonymous Twitter accounts, including claims that I was guilty of embezzlement and going to jail. In these Twitter accounts there was a doctored image of a mug shot. It was of another woman bearing the same name as me, who had shot dead her children in Texas, but the image was of my face. These were my political opponents at work and it was absolutely sickening and disgusting. Victoria Police is investigating this matter on the basis that these anonymous Twitter accounts constitute stalking under the Crimes Act. But, to date, police have been unable to access any identifying material about these accounts, because Twitter refuses to cooperate.

On application by Geelong detectives, the Geelong Magistrates Court issued a warrant on 10 July 2020 demanding that Twitter hand over relevant documents. On 2 September, Twitter declined to accept the warrant, saying that police must seek information through the International Cooperation in Criminal Matters Mutual Legal Assistance process in the courts of Ireland and the United States. Twitter refuses to cooperate. This makes a mockery of Twitter's assurances to me by their Australian representative Kara Hinesley that it would cooperate if a court or legal order were obtained.

This makes justice for ordinary Australians impossible. These companies don't care about publishing defamatory content, which may also be in breach of the criminal law, because it usually affects individuals who have neither the time nor the money to contest the matter in court, let alone in an international court. The companies know that under Australian law they cannot be held liable for the publication of the defamatory content anyway. That's why regulatory reform is needed to restore fairness and justice online for ordinary Australians.

Reform will be difficult and complex, because Australian law is limited in its capacity to bind foreign corporations operating overseas. But this reform is possible, and must happen, as we have done with abusive and harmful content published online. Some may argue that stronger regulation of these companies' online publishing undermines free speech, but our right to free speech does not justify the publication of defamatory material. No-one thinks it's a fair concession to free speech to allow the social media giants to escape liability, having actively participated in the ruination of someone's life and reputation.

Some may argue social media companies really don't host content in Australia because the internet is a global phenomenon that transcends national borders. If that's the case, why is it that, whenever they are brought before the courts, Twitter says its servers are all in California and Facebook maintains its data centre is in Dublin? It seems these companies are very eager to confine the internet within national borders whenever it suits them. The fact is that companies like Facebook and Twitter publish content in Australia, run advertising in Australia, conduct business in Australia and derive significant income in Australia. They also take advantage of legal loopholes in Australia. These loopholes should and must be eliminated.

The great Roman statesman Marcus Tullius Cicero said:

The precepts of the law are these: to live honestly, to injure no one, and to give everyone else his due.

Social media giants like Facebook and Twitter continue to publish dishonest and injurious defamatory content online. It is time to give Australians their due and hold these companies responsible for the damage they cause.