Social Media (Anti-Trolling) Bill 2022 [2022] AUSStaCSBSD 29 (18 March 2022)

• Social Media (Anti-Trolling) Bill 2022
• Significant matters in delegated legislation111

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Social Media (Anti-Trolling) Bill 2022

Purpose	The bill seeks to create a novel framework to allow Australians to respond to defamatory content posted on social media. The bill will also provide new mechanisms for Australians to ascertain whether potentially defamatory material on a page of a social media service was posted in Australia and, if so, to obtain the relevant contact details of the poster.
Portfolio	Attorney-General
Introduced	House of Representatives on 10 February 2022

Significant matters in delegated legislation^[111]

1.159 The bill seeks to establish a new framework for responding to, and establishing liability for, defamatory content on social media services. In particular, the bill alters the current position in the general law of the tort of defamation in relation to third‑party publishers of defamatory material on social media services. Key elements of several significant terms in the bill are left to delegated legislation.

1.160 The definition of 'social media service' set out at clause 6 of the bill provides that a social media service is either:

• an electronic service that is a social media service under the Online Safety Act 2021 which satisfies any other conditions set out in the legislative rules; or

• an electronic service specified in the legislative rules.

1.161 Clause 6 of the bill also provides that 'exempt service' means an electronic service specified in the legislative rules. A 'social media service' does not include an exempt service.

1.162 Under clause 22 of the bill, the provider of a social media service that is a body corporate incorporated in a foreign country must ensure that it has an Australian 'nominated entity' capable of meeting the various obligations that may arise under, or in connection with, the bill. This obligation applies where either there are at least 250,000 Australian persons who hold accounts with the service, or the service is specified in the legislative rules.

1.163 The committee's view is that significant matters, such as the scope of terms central to a legislative scheme, should be set out in primary legislation unless a sound justification for the use of delegated legislation is provided.

1.164 In this instance, the explanatory memorandum states in relation to the definition of 'social media service' that:

This ensures the definition has sufficient flexibility to clearly cover or exclude specified services or types of service that may be developed from time to time.^[112]

1.165 In relation to clause 22, the explanatory memorandum states:

The ability to specify services in the legislative rules will serve two purposes: it will allow providers of social media services with less than 250,000 Australian account holders to be prescribed in appropriate circumstances, and providers with at least 250,000 Australian account holders to be expressly prescribed and thereby avoid the need to prove this element in civil penalty or defamation proceedings.^[113]

1.166 There is no explanation provided for leaving the definition of 'exempt service' to the legislative rules.

1.167 While noting the explanation provided in relation to the definition of 'social media service', the committee has generally not accepted a desire for administrative flexibility to be a sufficient justification, of itself, for leaving significant matters to delegated legislation. In relation to clause 22, it is not clear to the committee from the explanation provided in which circumstances it would be appropriate to prescribe social media services with less than 250,000 Australian account holders, nor why it is necessary and appropriate to prescribe this matter within delegated legislation.

1.168 Given the significance of these terms to the proposed new defamation framework, the committee considers that it may be appropriate to include at least high-level guidance in relation to these matters on the face of the primary legislation. For example, the committee considers that it may be appropriate to, at a minimum, include examples of appropriate circumstances for prescribing social media services with less than 250,000 Australian account holders, or to include guidance in relation to the types of social media services that may be prescribed within the legislative rules.

1.169 In light of the above, the committee requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to leave key elements of the definitions of 'social media service' and 'exempt service' to delegated legislation;

• why it is considered necessary and appropriate to leave the scope of the application of the requirement to have a 'nominated entity' to delegated legislation; and

• whether the bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.

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[111] Clause 6, definition of 'social media service' and definition of 'exempt service'; clause 22. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[112] Explanatory memorandum, p. 12.

[113] Explanatory memorandum, p. 23.