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Australia’s new online safety legislation aims to improve internet user experience through stricter standards and tougher penalties for non-compliance
An unfortunate characteristic of our digitalised world is that legislation has failed to provide Australians with an adequate online safety net. However, the recent introduction of new legislation seeks to close this gap. The Online Safety Act, which came into effect in January 2022, has revamped and improved online safety standards. It’s an attempt to promote a better internet experience for all Australians.
What are the eSafety Commissioner’s powers?
The new legislation aims to enhance the pre-existing standards outlined in the Enhancing Online Safety for Children Act of 2015. But it goes further by granting unprecedented power to the eSafety Commissioner to have these standards more promptly enforced.
The most notable of these powers is the ability of the Commissioner to require online services to remove all types of prohibited material within 24 hours (reduced from 48 hours under the old law). The Commissioner can also block any of this content from viewership in Australia altogether.
The failure of the publisher to obey removal orders may generate whopping fines of up to:
- $111,000 for individuals
- $555,000 for companies
How has the definition of “prohibited” expanded?
What the Commissioner may see as “prohibited” now has a broader interpretation. It includes:
- Cyberbullying
- Cyber abuse
- Image-based abuse
- Illegal content
- Harmful content
- Abhorrent violent material
This is a significant adjustment from the Commissioner’s previous powers, which allowed the removal of content only if it was categorised as cyberbullying or intimate images.
The broadening of the Commissioner’s powers is consistent with an exponentially growing online landscape. There are evolving modes of online communication creating a plethora of avenues for harmful content to arise. The new legislation is targeted at – and applied to – a broader range of services and technologies, ranging from social media to smart TVs and everything in between.
What are the child-specific provisions?
This increasing potential for online harm is undoubtedly a worry for parents, whose young children may often be exposed to such content unwillingly. So it’s no surprise that parents may be the biggest beneficiaries of the Online Safety Act.
The Act imposes an onus on content publishers whose content is directed at or viewed by children. Unlike the provisions for adult-targeted content, the Commissioner can require the end-user to:
- Permanently refrain from posting further material; and
- Apologise for posting harmful material
The Commissioner can use injunctions if necessary.
What are the Basic Online Safety Expectations?
Even with deterrents and enhanced eSafety Commissioner powers, it is impossible to eliminate every potential threat. For example, the nature of Snapchat or Instagram Stories is that pictures only last online for 24 hours. It leaves the Commissioner powerless when issuing removal notices for this content.
There is also the possibility that harmful content may be left online for an excessive time because the Commissioner wasn’t notified immediately. The Basic Online Safety Expectations (BOSE) have been developed to prevent such misconduct.
BOSE are shifting the onus of responsibility toward service providers, who are expected to take “reasonable steps” to maintain a safe online environment.
These expectations encourage service providers to adopt systems of online safety that protect users. These systems may also protect their own interests through transparent compliance with the standards. Failure to do so would result in significant political pressure from the Commissioner, who may publically seek to call out any lack of adherence.
The final word
The Online Safety Act has attracted criticism for relying too heavily on service providers to act reasonably. However, the reality is that there is always going to be a required level of compliance from online service providers.
While end-users are likely to be somewhat relieved at the added layer of protection, online service providers must familiarise themselves with the new legislation. In doing so, they can ensure their systems adhere to the required safety standards and avoid the costly penalties associated with failure to comply.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can receive from marshalls+dent+wilmoth and other relevant experts.
