22 May 2018

The 2018 Federal Budget announcement on additional funding to combat revenge porn and online abuse is welcome news, however tougher regulation is needed to hold social media companies to account for what they publish.

The Government announced on May 8 that the eSafety Commission will receive $14.2 million over four years from 2018-19, including $11.7 million to combat revenge porn and online abuse.

This comes on the back of The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018, which introduced a federal civil penalty regime targeted at perpetrators and content hosts who share intimate images without consent.

Social media giants like Facebook, Twitter and others now face fines of up to $525,000 for failing to remove or prevent the dissemination of revenge porn, and individuals who post non-consensual intimate images can be fined a maximum of $105,000. In addition, civil penalties will allow the Office of the eSafety Commissioner to take action within hours to remove the online images and prevent their sharing.

The legislation also means that victims of this form of abuse can choose to pursue civil penalties rather than involving police in the matter.

Revenge porn and cyber bullying are pervasive in our society and the consequence of the injury inflicted through these acts can be extreme, especially among teenagers. The recent death of 14-year-old schoolgirl “Dolly” Everett, who suicided following ongoing cyber bullying, shocked Australia and highlights what can happen when social media platforms seem to take an “all care, no responsibility” approach to their business.

Also in the news recently was the fake online advertisement where TV personality Eddie McGuire appeared to be endorsing an erectile dysfunction product. He probably has a good claim under Australia’s defamation or passing off laws, however the difficulty is prosecuting a civil claim against perpetrators of fake news and defamatory comment when they are doing so with relative anonymity or from untouchable jurisdictions abroad.

As Australian Law currently stands, digital platforms such as Facebook and Google are not liable for defamatory content that they “republish”, unless they fail to remove it within a reasonable period of time of being notified of it. While there are plans afoot to challenge this legal principle, thanks to the power of social media the damage is largely done by the time the digital platform responds.

In contrast, television, radio, newspaper and print companies are subject to defamation laws and are liable if they publish defamatory content, even if they were not the author of it.

So why is it that digital organisations, which have rapidly overtaken traditional media in terms of market spending and reach, remain a largely protected species when it comes to publishing potentially harmful content?

It’s time we level the playing field and bring in tougher regulation and penalties to ensure social media platforms uphold a duty of care for their users.