5 February, 2020
On 11 December 2019, the Australian Government's Department of Communications and the Arts (DCA) began a consultation on its proposal to create a new Online Safety Act, following through on recommendations made in a 2018 review to reform and expand the existing patchwork of online safety laws. On the same day, the Government also issued an Online Safety Charter, outlining expectations for industry to protect Australians from harmful online experiences. Consultation submissions can be made on the DCA's website until 19 February 2020.
1. Overview of the proposals
In 2018, the DCA conducted a review of the Enhancing Online Safety Act 2015 (Cth) (EOSA) and the online content scheme in Schedules 5 and 7 of the Broadcasting Services Act 1992 (Cth) (online content scheme). The review report found that the online content scheme was "out of date and no longer fit for purpose" and recommended that it be replaced. The EOSA fared better, with the report noting that the eSafety Commissioner's work has delivered a sea change in policies and online safety activity. Nevertheless, the report recognised that the eSafety Commissioner's work was hampered, amongst other things, by limited powers and out-of-date legislation.
To address the issues identified in the 2018 review, the DCA's December 2019 proposal is to create a new Online Safety Act (OSA), with the objectives of promoting online safety, preventing online harm and protecting Australians online. According to DCA, the OSA would consolidate existing protections from the EOSA with the online content scheme, and strengthen those protections.
In parallel to the OSA consultation, the Government has issued its Online Safety Charter. The charter articulates online safety expectations relating to online service provider responsibilities, user empowerment and autonomy, and transparency and accountability.
2. The Finer Details . . .
There is a lot to consider in the consultation Discussion Paper, and online service providers would do well to read the paper in full to understand the nuances of the Government's proposals and its implications.
Key aspects of the proposed OSA include:
- a set of basic online safety expectations (BOSE) focusing on user empowerment, transparency, service integrity and collaboration with government and civil society
- an extension of the EOSA's cyberbullying scheme for Australian children to cover relevant electronic services and designated internet services, as well as social media services
- a new cyber abuse scheme for Australian adults, which would include a new end user take-down and an associated civil penalty regime to combat menacing, harassing or offensive material intended to cause serious distress or serious harm
- consistent take-down deadlines for image-based abuse, cyber abuse, cyberbullying and seriously harmful online content, so that online service providers will have to remove that material within 24 hours of a request from the eSafety Commissioner
- an improved version of the BSA's online content scheme, which will require the Australian technology industry to take a more active and extensive role in addressing access to harmful online content, and give the eSafety Commissioner greater powers to address illegal and harmful content hosted overseas
- a requirement for online service providers to offer the best available technology to prevent children's access to harmful content, supplemented by a new accreditation scheme to evaluate available tools and an obligation to proactively inform users about available opt-in tools and services
- a specific and targeted power for the eSafety Commissioner to direct Australian ISPs to block access to sites hosting terrorist or extreme violent material for a defined period where an online crisis event (such as streaming of a terrorist attack) occurs. The new power would complement the existing Criminal Code provisions regarding abhorrent violent material and provide ISPs with immunity when implementing a direction of the eSafety Commissioner.
- an ancillary service provider scheme giving the eSafety Commissioner the ability to request search engines, app stores and other ancillary service providers to disrupt access to websites, apps and/or games which have been found to have systemically and repeatedly facilitated the distribution of harmful content.
3. Significance of the proposals
The Government's proposal is a significant step forward in terms of online regulation. In their current form, the OSA proposals could have considerable implications for online service providers.
The proposed enhanced powers of the eSafety Commissioner point to increased regulation and intervention by the Government in online safety. Online service providers will be expected to take the BOSE into account when designing and updating their services and processes. Providers would also need to be well prepared to handle transparency reporting directions from the eSafety Commissioner, given the likely reputational impacts of having to publicly report on non-compliance.
Additionally, operators of a broader range of services – such as gaming chat services, messaging apps, app stores and search engines – would need to prepare themselves to deal with notices and/or requests from the eSafety Commissioner to take down or disrupt access to certain harmful content. Of particular significance, the truncated time frame for responding to take-down notices might result in online service providers having to develop or reorganise their take-down procedures. Service providers would also need to review and potentially improve their child protection tools and services, and assess how to integrate required information about opt-in tools and services into the user experience.
While online service providers may be concerned about the impact of the proposals on them, a revamp of the BSA's online content scheme is long overdue and could have some positive outcomes. Consolidating the scheme with the EOSA and new online safety arrangements might also simplify the legislative landscape for online service providers and individuals seeking to understand their rights and obligations. In proposing specific criteria and triggers for cyber abuse-related take-down notices and the eSafety Commissioner's site blocking powers, it also seems that the Government has attempted — at least — to pre-empt likely criticisms of those activities as inhibiting freedom of expression and imposing an unreasonable burden on online service providers.
4. Next steps
Online service providers should consider the implications of the Government's proposals for their businesses and whether to make a submission to ensure their perspectives are taken into account.
Please contact us if you require more information or would like us to assist you with your consultation submissions.
Thank you to Knowledge Lawyer Liz Grimwood-Taylor for her help in preparing this alert.
For further information, please contact:
Anne-Marie Allgrove, Partner, Baker & McKenzie
anne-marie.allgrove@bakermckenzie.com
