“If this can be resolved outside of a court, that is actually a good thing,” Senator Cash said. “And the bill is being deliberately structured to encourage that.”
Social media companies can only avoid liability for defamatory posts if they provide the real name and contact information for anyone allegedly behind the account. This will also require the user’s consent.
Senator Cash said most Australians were already comfortable providing their email and phone number to social media companies. “If this means that social media companies do require that information so they can identify you, that’s not a bad thing,” said Senator Cash, despite social media giants’ poor reputation on transparency, privacy and data gathering.
If a user is unwilling to take down their comment or turn over their identity, the aggrieved person can seek a court order against the social media giant to disclose their name and details.
A complainant can also go directly to court and seek the order. Senator Cash said in that case it “would be a decision for the platform” to tell a user that someone had sought their identity.
That could cause problems where someone is seeking a person’s identity for a malicious purpose, such as to intimidate a former domestic partner or a business rival.
The law attempts to address that by allowing the court to refuse to make an order where it may risk someone’s safety, a term Senator Cash said was deliberately broad to “encompass so much more than a physical threat.”
However, it is unclear how that risk could be established if the person who is the subject of the order is unaware it is being sought.
“This is very much why you do put things out for comment, so you can look at the feedback and in the event that, based on the feedback, you do believe that changes or tweaks to proposed legislation should be made, you can actually look at making them,” Senator Cash said.
The court may also have the ability to inform the user their identity is being sought, in a similar way to existing processes.
Tech giants Facebook and Alphabet, which owns search engine Google and YouTube, reacted furiously to the federal government’s last social media reforms which forced them to pay for news content.
Neither company has declared a view on the new laws, which are up for public comment until late January.
But Senator Cash said Google had been proactive in dealing with the government. “I am pleased with response from Google to date,” Senator Cash said.
A Google spokesman declined to comment.