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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021-2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Social Media (Anti-Trolling) Bill 2022
No. , 2022
(Attorney-General)
A Bill for an Act relating to defamatory material
posted on social media services, and for related
purposes
No. , 2022
Social Media (Anti-Trolling) Bill 2022
i
Contents
Part 1--Introduction
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline of this Act ............................................................ 3
4
Constitutional basis of this Act .......................................................... 4
5
Additional operation of this Act ........................................................ 4
6
Definitions ......................................................................................... 4
7
When material is posted on a page of a social media service ............ 7
8
When material is removed from a page of a social media
service................................................................................................ 7
9
When material is posted in Australia ................................................. 7
10
Tort of defamation etc. ...................................................................... 7
11
Crown to be bound ............................................................................ 8
12
Geographical application of this Act ................................................. 8
Part 2--Liability
9
13
Simplified outline of this Part ............................................................ 9
14
Liability of page owner for defamation--third-party material .......... 9
15
Liability for defamation--publisher .................................................. 9
16
Liability for defamation--defence for the provider of a
social media service etc. .................................................................. 11
17
Complaints scheme--prescribed requirements ............................... 12
Part 3--End-user information disclosure orders
16
18
Simplified outline of this Part .......................................................... 16
19
End-user information disclosure orders ........................................... 16
20
Practice and procedure..................................................................... 18
Part 4--Nominated entities
20
21
Simplified outline of this Part .......................................................... 20
22
Nominated entity of the provider of a social media service ............. 20
23
Continuing contraventions ............................................................... 21
Part 5--Miscellaneous
22
24
Simplified outline of this Part .......................................................... 22
25
Attorney-General may intervene in a proceeding ............................ 22
26
Civil penalty provision .................................................................... 23
27
Concurrent operation of State and Territory laws ............................ 24
28
Implied freedom of political communication................................... 24
29
Provider of a social media service ................................................... 24
ii
Social Media (Anti-Trolling) Bill 2022
No. , 2022
30
Application of section 14--material posted on a page of a
social media service ......................................................................... 25
31
Application of other provisions--material posted on a page
of a social media service .................................................................. 25
32
Legislative rules .............................................................................. 25
No. , 2022
Social Media (Anti-Trolling) Bill 2022
1
A Bill for an Act relating to defamatory material
1
posted on social media services, and for related
2
purposes
3
The Parliament of Australia enacts:
4
Part 1--Introduction
5
6
1 Short title
7
This Act is the
Social Media (Anti-Trolling) Act 2022
.
8
Part 1
Introduction
Section 2
2
Social Media (Anti-Trolling) Bill 2022
No. , 2022
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Section 3
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 12 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
3. Sections 4 to
12
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
4. Section 13
At the same time as the provisions covered
by table item 2.
5. Section 14
At the same time as the provisions covered
by table item 3.
6. Sections 15 to
17
At the same time as the provisions covered
by table item 2.
7. Parts 3 and 4
At the same time as the provisions covered
by table item 2.
8. Sections 24 to
26
At the same time as the provisions covered
by table item 2.
Introduction
Part 1
Section 3
No. , 2022
Social Media (Anti-Trolling) Bill 2022
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
9. Sections 27 to
30
At the same time as the provisions covered
by table item 3.
10. Section 31
At the same time as the provisions covered
by table item 2.
11. Section 32
At the same time as the provisions covered
by table item 3.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Simplified outline of this Act
7
•
For the purposes of the general law of the tort of defamation:
8
(a)
an Australian person who maintains or administers a
9
page of a social media service is taken to not be a
10
publisher of third party material posted on the page; and
11
(b)
if material is posted on a page of a social media service
12
(and the material is posted in Australia), the provider of
13
the social media service is taken to be a publisher of the
14
material.
15
•
If the provider of a social media service is a publisher of
16
material posted on a page of the social media service, the
17
provider of the social media service has a defence in a
18
defamation proceeding relating to the material if certain
19
conditions are satisfied.
20
•
If a person has posted material on a page of a social media
21
service, an application may be made to a court for an end-user
22
information disclosure order that requires the provider of the
23
social media service (or the provider's nominated entity) to
24
Part 1
Introduction
Section 4
4
Social Media (Anti-Trolling) Bill 2022
No. , 2022
disclose the poster's relevant contact details or country
1
location data to the applicant for the order.
2
•
If the provider of a social media service is a foreign body
3
corporate and the service has at least 250,000 Australian
4
account-holders (or the service is specified in the legislative
5
rules), the provider of the social media service must have a
6
nominated entity in Australia.
7
4 Constitutional basis of this Act
8
This Act relies on the Commonwealth's legislative powers under
9
paragraph 51(v) (communications) of the Constitution.
10
5 Additional operation of this Act
11
(1) In addition to section 4, this Act also has effect as provided by this
12
section.
13
Corporations
14
(2) This Act also has the effect it would have if a reference to a social
15
media service were expressly confined to a social media service
16
provided by a corporation to which paragraph 51(xx) of the
17
Constitution applies.
18
(3) Section 19 also has the effect it would have if a reference to a
19
nominated entity were expressly confined to a nominated entity
20
that is a corporation to which paragraph 51(xx) of the Constitution
21
applies.
22
6 Definitions
23
In this Act:
24
access
has the same meaning as in the
Online Safety Act 2021
.
25
account
includes:
26
(a) a free account; and
27
(b) a pre-paid account; and
28
Introduction
Part 1
Section 6
No. , 2022
Social Media (Anti-Trolling) Bill 2022
5
(c) anything that may reasonably be regarded as the equivalent
1
of an account.
2
Australia
, when used in a geographical sense, includes all the
3
external Territories.
4
Australian court
means:
5
(a) the High Court; or
6
(b) a court created by the Parliament; or
7
(c) a court of a State or Territory.
8
Australian person
means:
9
(a) an Australian citizen; or
10
(b) an individual who is, within the meaning of the
Migration
11
Act 1958
, the holder of a permanent visa; or
12
(c) a body corporate incorporated in Australia.
13
carriage service
has the same meaning as in the
14
Telecommunications Act 1997
.
15
country location data
of a person who has posted material on a
16
page of a social media service means:
17
(a) if the person appears to have been located in Australia when
18
the person posted the material, according to the geolocation
19
technology deployed by the provider of the service--a
20
statement to that effect; or
21
(b) if the person appears to have been located outside Australia
22
when the person posted the material, according to the
23
geolocation technology deployed by the provider of the
24
service--a statement to that effect.
25
electronic service
has the same meaning as in the
Online Safety Act
26
2021
.
27
end-user information disclosure order
means an order under
28
section 19.
29
exempt service
means an electronic service specified in the
30
legislative rules.
31
Part 1
Introduction
Section 6
6
Social Media (Anti-Trolling) Bill 2022
No. , 2022
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
1
2003
.
2
general law
means the common law, and equity, in Australia.
3
legislative rules
means rules made under section 32.
4
material
has the same meaning as in the
Online Safety Act 2021
.
5
nominated entity
of the provider of a social media service has the
6
meaning given by section 22.
7
page
of a social media service means:
8
(a) a page (however described) of the service; or
9
(b) any other distinct part of the service.
10
posted
has the meaning given by section 7.
11
posted in Australia
has the meaning given by section 9.
12
proceeding
means a proceeding before an Australian court.
13
provider
of a social media service has a meaning affected by
14
section 29.
15
related body corporate
has the same meaning as in the
16
Corporations Act 2001
.
17
relevant contact details
of a person means:
18
(a) either:
19
(i) the name of the person; or
20
(ii) the name by which the person is usually known; and
21
(b) an email address that can be used to contact the person; and
22
(c) a phone number that can be used to contact the person; and
23
(d) such other details (if any) as are specified in the legislative
24
rules.
25
remove
from a page of a social media service has the meaning
26
given by section 8.
27
social media service
means:
28
(a) an electronic service that:
29
Introduction
Part 1
Section 7
No. , 2022
Social Media (Anti-Trolling) Bill 2022
7
(i) is a social media service (within the meaning of the
1
Online Safety Act 2021
); and
2
(ii) satisfies such other conditions (if any) as are set out in
3
the legislative rules; or
4
(b) an electronic service specified in the legislative rules;
5
but does not include an exempt service.
6
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
7
2003
.
8
7 When material is posted on a page of a social media service
9
For the purposes of this Act, material is
posted
on a page of a
10
social media service by a person if the person causes the material
11
to be accessible to one or more end-users accessing the page.
12
8 When material is removed from a page of a social media service
13
For the purposes of this Act, material is
removed
from a page of a
14
social media service if the material is not accessible to any of the
15
end-users accessing the page.
16
9 When material is posted in Australia
17
For the purposes of this Act, if:
18
(a) an end-user of a social media service has posted material on a
19
page of the service; and
20
(b) the end-user appears to have been located in Australia when
21
the end-user posted the material, according to the geolocation
22
technology deployed by the provider of the service;
23
the material is
posted in Australia
.
24
10 Tort of defamation etc.
25
(1) This Act relates to the tort of defamation at general law.
26
(2) This Act does not affect the operation of the general law in relation
27
to the tort of defamation except to the extent that this Act provides
28
otherwise (whether expressly or by necessary implication).
29
Part 1
Introduction
Section 11
8
Social Media (Anti-Trolling) Bill 2022
No. , 2022
(3) This Act does not affect the operation of a law of a State or
1
Territory that relates to defamation except to the extent that this
2
Act provides otherwise (whether expressly or by necessary
3
implication).
4
Note:
See also section 27.
5
11 Crown to be bound
6
This Act binds the Crown in each of its capacities.
7
12 Geographical application of this Act
8
(1) This Act extends to every external Territory.
9
(2) This Act extends to acts, omissions, matters and things outside
10
Australia.
11
Liability
Part 2
Section 13
No. , 2022
Social Media (Anti-Trolling) Bill 2022
9
Part 2--Liability
1
2
13 Simplified outline of this Part
3
•
For the purposes of the general law of the tort of defamation:
4
(a)
an Australian person who maintains or administers a
5
page of a social media service is taken to not be a
6
publisher of third-party material posted on the page; and
7
(b)
if material is posted on a page of a social media service
8
(and the material is posted in Australia), the provider of
9
the social media service is taken to be a publisher of the
10
material.
11
•
If the provider of a social media service is a publisher of
12
material posted on a page of the social media service, the
13
provider of the social media service has a defence in a
14
defamation proceeding relating to the material if certain
15
conditions are satisfied.
16
14 Liability of page owner for defamation--third-party material
17
If:
18
(a) an end-user of a social media service (the
page owner
)
19
maintains or administers a page of the social media service;
20
and
21
(b) another end-user has posted material on the page; and
22
(c) the page owner is an Australian person;
23
then, for the purposes of the general law of the tort of defamation,
24
the page owner is taken not to be a publisher of the material.
25
15 Liability for defamation--publisher
26
Third-party material--social media service
27
(1) If:
28
Part 2
Liability
Section 15
10
Social Media (Anti-Trolling) Bill 2022
No. , 2022
(a) an end-user of a social media service maintains or
1
administers a page of the social media service; and
2
(b) another end-user has posted material on the page; and
3
(c) the material was posted in Australia;
4
then, for the purposes of the general law of the tort of defamation,
5
the provider of the social media service is taken to be a publisher
6
of the material.
7
Page owner material--social media service
8
(2) If:
9
(a) an end-user of a social media service (the
page owner
)
10
maintains or administers a page of the social media service;
11
and
12
(b) the page owner has posted material on the page; and
13
(c) the material was posted in Australia;
14
then, for the purposes of the general law of the tort of defamation,
15
the provider of the social media service is taken to be a publisher
16
of the material.
17
Defences etc.
18
(3) If:
19
(a) a person has posted material on a page of a social media
20
service; and
21
(b) the material was posted in Australia; and
22
(c) the provider of the social media service is a publisher of the
23
material (whether because of subsection (1) or (2) or
24
otherwise); and
25
(d) the provider of the social media service is a party to a
26
defamation proceeding that relates to the material;
27
then, in the defamation proceeding:
28
(e) section 235 of the
Online Safety Act 2021
does not apply; and
29
(f) the defence of innocent dissemination (whether under general
30
law or a law of a State or Territory) is not available to the
31
provider of the social media service.
32
Liability
Part 2
Section 16
No. , 2022
Social Media (Anti-Trolling) Bill 2022
11
16 Liability for defamation--defence for the provider of a social
1
media service etc.
2
Scope
3
(1) This section applies if:
4
(a) a person (the
poster
) has posted material on a page of a social
5
media service; and
6
(b) the provider of the social media service is a publisher of the
7
material (whether because of subsection 15(1) or (2) or
8
otherwise); and
9
(c) a person (the
applicant
) has instituted a defamation
10
proceeding that relates to the material; and
11
(d) any of the following persons is a defendant to the proceeding:
12
(i) the provider;
13
(ii) a related body corporate of the provider;
14
(iii) the nominated entity of the provider.
15
Defence
16
(2) Subject to subsection (3), in the defamation proceeding (so far as it
17
is a proceeding against a defendant referred to in paragraph (1)(d)),
18
it is a defence if the defendant proves that:
19
(a) the material was posted in Australia; and
20
(b) the social media service has a complaints scheme that meets
21
the prescribed requirements (see section 17); and
22
(c) in a case where the applicant (or a person acting on behalf of
23
the applicant) made a complaint to the provider under the
24
complaints scheme about the material--the provider
25
complied with the complaints scheme in relation to the
26
handling of the complaint (including by disclosing the
27
country location data of the poster to the applicant (see
28
paragraph 17(1)(d)); and
29
(d) any of the following conditions is satisfied:
30
(i) under the complaints scheme, the applicant (or a person
31
acting on behalf of the applicant) has requested the
32
provider to disclose the relevant contact details of the
33
poster to the applicant in order to assist the applicant in
34
Part 2
Liability
Section 17
12
Social Media (Anti-Trolling) Bill 2022
No. , 2022
relation to the potential institution by the applicant of a
1
defamation proceeding against the poster in relation to
2
the material, and the provider has disclosed the relevant
3
contact details of the poster to the applicant;
4
(ii) in a case where an end-user information disclosure order
5
was made against the provider, or the nominated entity
6
of the provider, as a result of the material--the provider
7
or nominated entity has disclosed the relevant contact
8
details and country location data of the poster to the
9
applicant, and has otherwise complied with the end-user
10
information disclosure order;
11
(iii) the applicant (or a person acting on behalf of the
12
applicant) has not applied to a court for an end-user
13
information disclosure order against the provider, or the
14
nominated entity of the provider, as a result of the
15
material; and
16
(e) in a case where the provider satisfied the conditions set out in
17
paragraphs 22(1)(a) and (b) at the time when the material was
18
posted--the provider complied with subsection 22(1)
19
(nominated entity of the provider) at the time when the
20
material was posted.
21
Exception
22
(3) If the poster is:
23
(a) the provider; or
24
(b) a related body corporate of the provider; or
25
(c) the nominated entity of the provider;
26
subsection (2) does not apply so far as the defamation proceeding
27
is a proceeding against the poster.
28
17 Complaints scheme--prescribed requirements
29
(1) For the purposes of this Part, a complaints scheme of a social
30
media service
meets the prescribed requirements
if, under the
31
scheme, the following rules apply if a person (the
complainant
)
32
has reason to believe that there may be a right for the complainant
33
to obtain relief against an end-user of the service (the
poster
) in a
34
Liability
Part 2
Section 17
No. , 2022
Social Media (Anti-Trolling) Bill 2022
13
defamation proceeding that relates to material posted on a page of
1
the service by the poster:
2
(a) the complainant (or, if allowed by the legislative rules, a
3
person acting on behalf of the prospective complainant) can
4
make a complaint (a
defamation complaint
) to the provider
5
of the service about the material;
6
(b) in a case where the material was posted in Australia--the
7
provider is required:
8
(i) to inform the poster that the material is the subject of a
9
defamation complaint; and
10
(ii) to do so within 72 hours after the defamation complaint
11
was made;
12
(c) in a case where the material was posted in Australia--the
13
provider is required:
14
(i) to notify the complainant that the poster has been
15
informed that the material is the subject of a defamation
16
complaint; and
17
(ii) to do so within 72 hours after the defamation complaint
18
was made;
19
(d) the provider is required:
20
(i) to disclose the country location data of the poster to the
21
complainant in order to assist the complainant in
22
relation to the potential institution by the complainant of
23
a defamation proceeding against the poster in relation to
24
the material; and
25
(ii) to do so within 72 hours after the defamation complaint
26
was made;
27
(e) in a case where the material was posted in Australia--the
28
provider may, with the consent of the poster, remove the
29
material from the page;
30
(f) in a case where the material was posted in Australia--the
31
provider is required:
32
(i) to notify the complainant of the outcome of the handling
33
of the defamation complaint; and
34
(ii) to do so within 72 hours after the occurrence of the
35
outcome;
36
Part 2
Liability
Section 17
14
Social Media (Anti-Trolling) Bill 2022
No. , 2022
(g) in a case where the material was posted in Australia and the
1
complainant is dissatisfied with the handling of the
2
defamation complaint:
3
(i) the complainant (or, if allowed by the legislative rules, a
4
person acting on behalf of the complainant) may request
5
the provider to disclose the relevant contact details of
6
the poster to the complainant in order to assist the
7
complainant in relation to the potential institution by the
8
complainant of a defamation proceeding against the
9
poster in relation to the material; and
10
(ii) the provider is required to ask the poster, within 72
11
hours after the request was made by the complainant (or
12
a person acting on behalf of the complainant), whether
13
the poster consents to the disclosure of the relevant
14
contact details of the poster to the complainant; and
15
(iii) if, after the defamation complaint was made, the poster
16
consents to the disclosure of the relevant contact details
17
of the poster to the complainant--the provider may
18
disclose the relevant contact details of the poster to the
19
complainant;
20
(h) such other requirements (if any) as are set out in the
21
legislative rules;
22
(i) despite any of the rules set out in the preceding paragraphs,
23
the provider is not required to take any action in response to:
24
(i) the defamation complaint; or
25
(ii) a request by the complainant to disclose the relevant
26
contact details of the poster to the complainant;
27
if the provider reasonably believes that the defamation
28
complaint or the request, as the case may be, does not
29
genuinely relate to the potential institution by the
30
complainant of a defamation proceeding against the poster in
31
relation to the material.
32
Note:
See also section 22 (nominated entity of the provider).
33
(2) The provider of a social media service is, by force of this
34
subsection, authorised to disclose the country location data of the
35
poster in the circumstances mentioned in paragraph (1)(d).
36
Liability
Part 2
Section 17
No. , 2022
Social Media (Anti-Trolling) Bill 2022
15
(3) The provider of a social media service is not subject to any civil
1
liability for disclosing the country location data of the poster in the
2
circumstances mentioned in paragraph (1)(d).
3
(4) The provider of a social media service is, by force of this
4
subsection, authorised to disclose the relevant contact details of the
5
poster in the circumstances mentioned in subparagraph (1)(g)(iii).
6
(5) The provider of a social media service is not subject to any civil
7
liability for disclosing the relevant contact details of the poster in
8
the circumstances mentioned in subparagraph (1)(g)(iii).
9
Manner and form requirements
10
(6) The legislative rules may provide that, to be effective, the action of
11
informing the poster as mentioned in paragraph (1)(b) must be
12
done in a manner and form prescribed by the legislative rules.
13
(7) The legislative rules may provide that, to be effective, the action of
14
notifying the complainant as mentioned in paragraph (1)(c) must
15
be done in a manner and form prescribed by the legislative rules.
16
(8) The legislative rules may provide that, to be effective, the action of
17
disclosing country location data as mentioned in paragraph (1)(d)
18
must be done in a manner and form prescribed by the legislative
19
rules.
20
(9) The legislative rules may provide that, to be effective, the action of
21
notifying the complainant as mentioned in paragraph (1)(f) must be
22
done in a manner and form prescribed by the legislative rules.
23
(10) The legislative rules may provide that, to be effective, the action of
24
asking the poster as mentioned in subparagraph (1)(g)(ii) must be
25
done in a manner and form prescribed by the legislative rules.
26
Part 3
End-user information disclosure orders
Section 18
16
Social Media (Anti-Trolling) Bill 2022
No. , 2022
Part 3--End-user information disclosure orders
1
2
18 Simplified outline of this Part
3
•
If a person has posted material on a page of a social media
4
service, an application may be made to a court for an end-user
5
information disclosure order that requires the provider of the
6
social media service (or the provider's nominated entity) to
7
disclose the poster's relevant contact details or country
8
location data to the applicant for the order.
9
19 End-user information disclosure orders
10
Application for order
11
(1) If:
12
(a) a person (the
poster
) has posted material on a page of a social
13
media service; and
14
(b) an Australian person (the
prospective applicant
) reasonably
15
believes that there may be a right for the prospective
16
applicant to obtain relief against the poster in a defamation
17
proceeding that relates to the material; and
18
(c) any of the following conditions is satisfied:
19
(i) the prospective applicant is unable to ascertain the
20
relevant contact details of the poster;
21
(ii) the prospective applicant is unable to ascertain whether
22
the material was posted in Australia;
23
(iii) the prospective applicant reasonably believes that the
24
material was posted in Australia; and
25
(d) if the prospective applicant were to institute a defamation
26
proceeding that relates to the material--an Australian court
27
would have jurisdiction in the proceeding;
28
the prospective applicant (or, if allowed by the legislative rules, a
29
person acting on behalf of the prospective applicant) may apply to:
30
(e) a court mentioned in paragraph (d); or
31
End-user information disclosure orders
Part 3
Section 19
No. , 2022
Social Media (Anti-Trolling) Bill 2022
17
(f) the Federal Circuit and Family Court of Australia
1
(Division 2);
2
for an order under subsection (2).
3
Order
4
(2) If an application is made to a court under subsection (1), and the
5
prospective applicant (or a person acting on behalf of the
6
prospective applicant) satisfies the court:
7
(a) of the matter mentioned in paragraph (1)(a); and
8
(b) that there are reasonable grounds to believe that there may be
9
a right for the prospective applicant to obtain relief against
10
the poster in a defamation proceeding that relates to the
11
material; and
12
(c) that any of the conditions set out in paragraph (1)(c) is
13
satisfied; and
14
(d) of the matter mentioned in paragraph (1)(d);
15
then:
16
(e) in a case where the prospective applicant is unable to
17
ascertain the relevant contact details of the poster--the court
18
may order the provider of the social media service or the
19
nominated entity of the provider to give to the prospective
20
applicant, within the period specified in the order, any
21
relevant contact details of the poster:
22
(i) that are held by the provider or the nominated entity, as
23
the case requires; or
24
(ii) to which the provider or the nominated entity, as the
25
case requires, has access;
26
unless the material was not posted in Australia; and
27
(f) in a case where:
28
(i) the prospective applicant is unable to ascertain whether
29
the material was posted in Australia; or
30
(ii) the prospective applicant reasonably believes that the
31
material was posted in Australia;
32
the court may order the provider of the social media service
33
or the nominated entity of the provider to give to the
34
prospective applicant, within the period specified in the
35
order, any country location data of the poster:
36
Part 3
End-user information disclosure orders
Section 20
18
Social Media (Anti-Trolling) Bill 2022
No. , 2022
(iii) that is held by the provider or the nominated entity, as
1
the case requires; or
2
(iv) to which the provider or the nominated entity, as the
3
case requires, has access.
4
Note 1:
Section 6 defines
end-user information disclosure order
to mean an
5
order under this section.
6
Note 2:
If an end-user information disclosure order is made against the
7
provider, or the nominated entity of the provider, the provider will not
8
have a defence under section 16 unless the provider or nominated
9
entity disclosed the relevant contact details and country location data
10
of the poster, and has otherwise complied with the end-user
11
information disclosure order--see paragraph 16(2)(d).
12
(3) The court may refuse to make an order under this section requiring
13
the disclosure of the poster's relevant contact details or country
14
location data if the court is satisfied that the disclosure of the
15
relevant contact details or country location data, as the case may
16
be, is likely to present a risk to the poster's safety.
17
(4) Subsection (3) does not limit the court's power to refuse to make
18
an order under this section.
19
Other powers not limited
20
(5) The power conferred on the court under this section is in addition
21
to, and not instead of, any other powers of the court.
22
Substantive defamation jurisdiction of the Federal Circuit and
23
Family Court of Australia (Division 2)
24
(6) In determining whether the Federal Circuit and Family Court of
25
Australia (Division 2) has jurisdiction in a defamation proceeding,
26
disregard the conferral on the court of the power to make an
27
end-user information disclosure order.
28
20 Practice and procedure
29
(1) The legislative rules may:
30
(a) provide for, or in relation to, the practice and procedure to be
31
followed in a court in relation to:
32
End-user information disclosure orders
Part 3
Section 20
No. , 2022
Social Media (Anti-Trolling) Bill 2022
19
(i) the making of applications for end-user information
1
disclosure orders; or
2
(ii) the hearing and determination of such applications; or
3
(b) provide for, or in relation to, all matters and things incidental
4
to any such practice or procedure.
5
(2) Subsection (1) does not, by implication, limit a power to make
6
rules of court.
7
Part 4
Nominated entities
Section 21
20
Social Media (Anti-Trolling) Bill 2022
No. , 2022
Part 4--Nominated entities
1
2
21 Simplified outline of this Part
3
•
If the provider of a social media service is a foreign body
4
corporate and the service has at least 250,000 Australian
5
account-holders (or the service is specified in the legislative
6
rules), the provider of the social media service must have a
7
nominated entity in Australia.
8
22 Nominated entity of the provider of a social media service
9
(1) If:
10
(a) the provider of a social media service is a body corporate
11
incorporated in a foreign country; and
12
(b) either:
13
(i) there are at least 250,000 Australian persons who hold
14
accounts with the service; or
15
(ii) the service is specified in the legislative rules;
16
the provider must ensure that there is another body corporate that:
17
(c) is an agent of the provider; and
18
(d) is incorporated in Australia; and
19
(e) has an office in Australia; and
20
(f) has access to:
21
(i) the relevant contact details of end-users of the service
22
who have posted material on pages of the service in
23
circumstances where the material was posted in
24
Australia; and
25
(ii) the country location data of end-users of the service
26
who have posted material on pages of the service in
27
circumstances where the material was posted in
28
Australia; and
29
(g) if the service has a complaints scheme that meets the
30
prescribed requirements (see section 17)--has authority to
31
Nominated entities
Part 4
Section 23
No. , 2022
Social Media (Anti-Trolling) Bill 2022
21
receive, on behalf of the provider, complaints and requests
1
made under the scheme by Australian persons; and
2
(h) if the provider has one or more related bodies corporate that
3
are incorporated in Australia--is one of those related bodies
4
corporate.
5
Civil penalty:
500 penalty units.
6
(2) The other body corporate is to be known as the
nominated entity
of
7
the provider of the social media service.
8
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
9
2003
.
10
23 Continuing contraventions
11
(1) A person who contravenes subsection 22(1) commits a separate
12
contravention of that provision in respect of each day during which
13
the contravention continues (including the day the relevant civil
14
penalty order is made or any later day).
15
(2) The pecuniary penalty payable under Part 4 of the
Regulatory
16
Powers (Standard Provisions) Act 2014
for such a separate
17
contravention in respect of a particular day must not exceed 5% of
18
the maximum pecuniary penalty that could have been imposed for
19
the contravention if subsection (1) of this section had not been
20
enacted.
21
Part 5
Miscellaneous
Section 24
22
Social Media (Anti-Trolling) Bill 2022
No. , 2022
Part 5--Miscellaneous
1
2
24 Simplified outline of this Part
3
•
This Part deals with miscellaneous matters such as:
4
(a)
the power of the Attorney-General to intervene in
5
proceedings; and
6
(b)
the concurrent operation of State and Territory laws; and
7
(c)
the implied freedom of political communication; and
8
(d)
the making of legislative rules.
9
25 Attorney-General may intervene in a proceeding
10
(1) If:
11
(a) a person (the
poster
) has posted material on a page of a social
12
media service; and
13
(b) an Australian person has instituted a defamation proceeding
14
that relates to the material; and
15
(c) the provider of the social media service is a party to the
16
defamation proceeding; and
17
(d) the proceeding is before an Australian court that is exercising
18
federal jurisdiction;
19
the Attorney-General may, on behalf of the Commonwealth,
20
intervene in the proceeding if the Attorney-General believes it is in
21
the public interest to do so.
22
(2) The Attorney-General may, on behalf of the Commonwealth,
23
intervene in a proceeding before an Australian court in a matter
24
arising under this Act.
25
(3) If the Attorney-General intervenes under subsection (1) or (2) in a
26
proceeding, the court may, in the proceeding, make such order as
27
to costs against the Commonwealth as the court thinks fit.
28
Miscellaneous
Part 5
Section 26
No. , 2022
Social Media (Anti-Trolling) Bill 2022
23
(4) If the Attorney-General intervenes under subsection (1) or (2) in a
1
proceeding, the Attorney-General is taken to be a party to the
2
proceeding.
3
(5) If:
4
(a) the Attorney-General intervenes under subsection (1) or (2)
5
in a proceeding instituted by an Australian person (the
6
applicant
); and
7
(b) in the opinion of the Attorney-General, a decision of the
8
court in the proceeding will:
9
(i) settle an uncertain area or question of Commonwealth
10
law; or
11
(ii) resolve an important question that arises under a
12
Commonwealth law and affects the rights of a section of
13
the public which is, or a group of individuals who are,
14
socially or economically disadvantaged;
15
the Attorney-General may authorise the payment to the applicant
16
by the Commonwealth of such costs as the Attorney-General
17
considers were reasonably incurred by the applicant in relation to
18
the proceeding.
19
26 Civil penalty provision
20
Enforceable civil penalty provision
21
(1) A civil penalty provision in this Act is enforceable under Part 4 of
22
the
Regulatory Powers (Standard Provisions) Act 2014
.
23
Note:
Part 4 of the
Regulatory Powers (Standard Provisions) Act 2014
24
allows a civil penalty provision to be enforced by obtaining an order
25
for a person to pay a pecuniary penalty for the contravention of the
26
provision.
27
Authorised applicant
28
(2) For the purposes of Part 4 of the
Regulatory Powers (Standard
29
Provisions) Act 2014
, the Attorney-General is an authorised
30
applicant in relation to a civil penalty provision in this Act.
31
(3) An authorised applicant may, in writing, delegate the authorised
32
applicant's powers and functions under Part 4 of the
Regulatory
33
Part 5
Miscellaneous
Section 27
24
Social Media (Anti-Trolling) Bill 2022
No. , 2022
Powers (Standard Provisions) Act 2014
in relation to a civil
1
penalty provision in this Act to the Secretary of the Department.
2
Relevant court
3
(4) For the purposes of Part 4 of the
Regulatory Powers (Standard
4
Provisions) Act 2014
, the Federal Court of Australia and the
5
Federal Circuit and Family Court of Australia (Division 2) are
6
relevant courts in relation to a civil penalty provision in this Act.
7
Extension to external Territories etc.
8
(5) Part 4 of the
Regulatory Powers (Standard Provisions) Act 2014
,
9
as it applies in relation to a civil penalty provision in this Act,
10
extends to:
11
(a) every external Territory; and
12
(b) acts, omissions, matters and things outside Australia.
13
27 Concurrent operation of State and Territory laws
14
It is the intention of the Parliament that this Act is not to apply to
15
the exclusion of a law of a State or Territory to the extent to which
16
that law is capable of operating concurrently with this Act.
17
28 Implied freedom of political communication
18
(1) This Act does not apply to the extent (if any) that it would infringe
19
any constitutional doctrine of implied freedom of political
20
communication.
21
(2) Subsection (1) does not limit the application of section 15A of the
22
Acts Interpretation Act 1901
to this Act.
23
29 Provider of a social media service
24
(1) For the purposes of this Act, a person does not provide a social
25
media service merely because the person supplies a carriage
26
service that enables material to be accessed or delivered.
27
Miscellaneous
Part 5
Section 30
No. , 2022
Social Media (Anti-Trolling) Bill 2022
25
(2) For the purposes of this Act, a person does not provide a social
1
media service merely because the person provides a billing service,
2
or a fee collection service, in relation to a social media service.
3
30 Application of section 14--material posted on a page of a social
4
media service
5
Section 14 does not apply in relation to material posted on a page
6
of a social media service before the commencement of that section.
7
31 Application of other provisions--material posted on a page of a
8
social media service
9
Sections 15, 16, 17, 19, 22 and 25 do not apply in relation to
10
material posted on a page of a social media service before the
11
commencement of those sections.
12
32 Legislative rules
13
(1) The Minister may, by legislative instrument, make rules
14
(
legislative rules
) prescribing matters:
15
(a) required or permitted by this Act to be prescribed by the
16
legislative
rules; or
17
(b) necessary or convenient to be prescribed for carrying out or
18
giving effect to this Act.
19
(2) To avoid doubt, the legislative
rules may not do the following:
20
(a) create an offence or civil penalty;
21
(b) provide powers of:
22
(i) arrest or detention; or
23
(ii) entry, search or seizure;
24
(c) impose a tax;
25
(d) set an amount to be appropriated from the Consolidated
26
Revenue Fund under an appropriation in this Act;
27
(e) directly amend the text of this Act.
28