But there can be jurisdictional issues with bringing defamation proceedings against entities that are not located in Australia. The proposal aims to create an incentive for platforms to set up an Australian “shopfront” by giving them a defence against being held liable for the defamatory comments of users if they meet specific conditions.
Platforms with at least 250,000 Australian users would need to set up a local entity to handle complaints from users about potentially defamatory comments, including dealing with requests for information about the identity of an anonymous commenter to enable an alleged victim of online defamation to sue the person directly.
However, the anonymous commenter must consent to their details being disclosed by the platform.
If consent is not given, a person could apply to the Federal Court for a new order requiring the platform to disclose the identity of the anonymous commenter. This appears similar to an existing process in Australia known as preliminary discovery, and it is not yet clear how this would be cheaper or easier than this process.
To escape liability for the defamatory comments of users, the social media companies would need to reveal the identity of the anonymous commenter, either because the person agreed to their details being provided or the court order was made.
Professor David Rolph, an expert in defamation law from the University of Sydney, said: “The reason why social media companies have not been defendants in…