Revised e-safety legislation should include an enforceable duty of care that would require all platforms and services to prevent “foreseeable harms”, says a review.
That’s one of 67 recommendations contained in the Report of the Statutory Review of the Online Safety Act 2021, which the federal government released Tuesday.
Conducted this year by former deputy ACCC commissioner Delia Rickard, the independent review examined whether legislation needs revising due to new forms of online abuse and emerging technologies such as generative artificial intelligence.
As Rickard notes in the report’s introductory remarks: “Australia’s online safety laws were world-leading when introduced in 2015 … However, since the laws were first introduced, and even since they were updated with the introduction of the Act in 2021, we have been overtaken.”
Calling for the Act to uphold an “overarching duty of care and a due diligence approach” that would require all platforms “to take reasonable steps to prevent foreseeable harms”, Rickard recommends that the core enduring harms to be covered by the legislation are those that relate to:
- young people
- people’s mental and physical wellbeing
- instruction or promotion of harmful practices
- threats to national security and social cohesion
- other illegal content, conduct and activity.
The report also recommends a requirement that online services apply safety-by-design principles to the development of all new platforms and to any significant changes to existing ones. “While some online services do more to help with user safety than others, initiatives often come way too late, don’t go far enough and occur only in response to huge amounts of public pressure,” says Rickard.
In order to future-proof the revised legislation the requirements would apply to all new technologies such as the metaverse and GenAI, as well as services yet to be imagined. “We are committed to strengthening our online safety laws to protect Australians – particularly young Australians,” Minister for Communications Michelle Rowland said in a statement accompanying the report’s release.
Rickard recommends that legislation dealing with cyberbullying of children, adult cyber abuse and image-based abuse is bolstered and made more consistent and that platforms have systems in place to remove online hate targeted at individuals and groups with defined protected characteristics.
Rickard also recommends that takedown schemes are retained in the new Act – a takedown scheme refers to a process where the eSafety Commissioner can order online platforms to remove harmful content if the operators fail to take action themselves. “I have heard too many heartbreaking stories of suicides and real fear resulting from online harms to think we are at the point where quick takedown schemes are no longer needed, though hopefully that time will come,” says Rickard.
Noting that Australia has fallen behind other jurisdictions when it comes to penalties, Rickard recommends a maximum penalty of the greater of 5% of a company’s global turnover or $50 million. The government has yet to support the increase in penalties which, if implemented, could see big tech pay billions of dollars in fines.
“The approach I’ve taken has been two-fold,” says Rickard. “First, to try and get services to fix problems through, for example, persuasion, remedial directions or enforceable undertakings. But, if that doesn’t lead to positive change, then eSafety should not hesitate to litigate.”
The report also recommends a standalone e-safety commission that is adequately funded to have the staff and technology needed by an agency “with the breadth of responsibilities being recommended”.
Rickard concludes her introductory remarks saying: “My great hope is that the recommendations made in this report lead to a safer, less toxic environment online for all and a more cohesive society.”
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