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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Social Media (Basic Expectations and Defamation) Bill 2021
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Dr Anne Webster MP
Social Media (Basic Expectations and Defamation) Bill 2021
OUTLINE
The intent of the Bill is to enable the Minister to set basic expectations of a social media
service provider regarding the hosting of defamatory material on social media platforms,
and secondly to ensure that service providers are liable for defamatory material hosted on
their platforms that is not removed in a reasonable timeframe.
The bill intends to address the lack of accountability on service providers when defamatory
material is published on their sites.
Basic Expectations
The Bill gives the Minister power to make determinations about the basic expectations of a
social media service.
In doing so, the Minister must have regard to the importance of social media services, the
value of truth and free debate, the harmfulness of defamation, and the importance of
preventing social media services from being used to facilitate unlawful conduct.
The Minister must also endeavour to consult the general public before making or varying a
determination on the basic expectations of a social media service.
Should the Minister determine basic expectations for a social media service or services,
the e-Safety Commissioner (the Commissioner) must be satisfied that said services do not
contravene one or more of the basic expectations.
To do this, the Bill gives the Commissioner the power to require a service provider to
prepare reports about the extent to which the provider complied with or contravened the
basic expectations as set out by the Minister's determination.
Should the Commissioner give notice to a service provider to prepare such reports and the
reporting requirements are not met, penalties will apply.
The Commissioner will have the power to request these reports on a periodic or non-
periodic basis. The Commissioner cannot request a periodic reporting period shorter than
6 months or longer than 24 months.
When requesting the service provider report on its compliance to the basic expectations,
the Commissioner must give due consideration to the practices of the service provider, the
service provider's terms of use, and the number of complaints made to the service provider
in the previous 12 months.
If the Commissioner is satisfied that the provider of a service has contravened one or more
basic expectations for the service, the Commissioner may prepare a statement to that
effect and publish this statement on the Commissioner's website.
Defamatory Material
The Bill sets out a process through which members of the public can make a complaint to
the Commissioner, if they have reason to believe that they are being defamed by material
posted on a social media service.
The Commissioner will have the power to investigate complaints made by members of the
public and to issue defamation notices to service providers.
The Bill gives the Commissioner the power to issue defamation notices to a service
provider in circumstances where a complaint regarding defamatory material has been
made to the Commissioner, and the Commissioner is satisfied that it is reasonably likely
that the material defamed or defames the complainant.
If the Commissioner issues a defamation notice to the service provider in relation to
material posted on the service, and the material is not removed within 48 hours after
receipt of the defamation notice, the end user who posted the material is liable to an action
for defamation for publishing the material, the provider is jointly liable with the end user for
that defamation.
In other words, service providers can be liable for defamation if that service provider is
issued with a defamation notice by the Commissioner and the defamatory material is not
removed within 48 hours.
The Bill also gives the Commissioner investigatory powers to determine the extent to
which an end-user has or is posting defamatory material.
The Bill sets out a process through which end-users can apply to the Administrative
Appeals Tribunal for review of the decisions made by the Commissioner.
FINANCIAL IMPACT
The bill will have no financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Media (Basic Expectations and Defamation) Bill 2021
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the bill
The intent of the Bill is to enable the Minister to set basic expectations of a social media
service provider regarding the hosting of defamatory material on social media platforms,
and secondly to ensure that service providers are liable for defamatory material hosted on
their platforms that is not removed in a reasonable timeframe.
The bill intends to address the lack of accountability on service providers when defamatory
material is published on their sites.
Human rights implications
The Bill interacts with human rights on several counts. It is likely that this Bill limits the right
to freedom of speech and the right to privacy of an end-user of a social media service who
posts what could be deemed to be defamatory material.
However, these limitations are necessary in order to ensure that all users of social media
services are protected from harassment, vilification, defamation, and abuse by other users.
Conclusion
This bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate.
Dr Anne Webster MP