Australia: Consultation closing soon on Draft Online Safety Bill

Key takeaways

The most significant proposed changes to the existing regimes include:

• the expansion of the eSafety Commissioner’s (Commissioner) power to issue removal notices in respect of cyber-bullying material targeted at children, to cover relevant electronic services, designated internet services, hosting service providers, and end-users, in addition to social media services
• the introduction of a removal scheme for cyber-abuse material targeted at adults, including a civil penalty provision to combat material intended to cause serious harm
• the reduction of the time period for responding to many categories of removal notice from 48 hours to 24 hours
• the introduction of a set of BOSE to replace the basic online safety requirements in the EOSA, including a civil penalty for failure to comply with a notice from the Commissioner to report on compliance with the BOSE
• the expansion of the Commissioner’s power to issue removal notices in respect of illegal and harmful online content, including a power to issue removal notices to international services in certain circumstances. The Commissioner is also given powers to issue link deletion notices to search engine services and app removal notices to app distribution services, to remove access to services that systematically ignore take down notices
• the introduction of a rapid blocking regime, allowing the Commissioner to direct internet service providers to block access to material that promotes, incites, or instructs in abhorrent violent conduct, or is abhorrent violent material, and is likely to cause significant harm to the Australian community
• the inclusion of a power for the Commissioner to request an industry code or determine an industry standard, there being an expectation that either an industry code or an industry standard be introduced for each section of the online industry in the 12 months following the legislation’s commencement (with industry given an initial six months to establish new codes)

In more detail

The Bill reflects a significant overhaul of the existing online content regimes. It requires online service providers to take on a greater role in preventing access to certain kinds of online content, and increases the cost for service providers of a failure to do so.

The key proposals have the following practical effect on service providers:

1. A broad range of services will be required to respond efficiently to removal notices. The Commissioner’s power to issue removal notices under various schemes has been extended to a broader range of services. The Bill enables the Commissioner to issue removal notices to social media services, relevant electronic services, designated internet services and hosting service providers, and even to end-users if the material is cyber-abuse, cyber-bullying or image-based abuse. These services should be prepared to respond to removal notices, and to do so efficiently, given the reduced timeframe for compliance (from 48 hours to 24 hours). Search engines and app stores may also be asked to delete or remove access to services that repeatedly ignore removal notices under the online content scheme.
2. Internet service providers will be required to block access to sites upon being issued a blocking notice, or risk receiving a civil penalty. It is anticipated that the Commissioner would normally issue a blocking request prior to issuing a blocking notice, but it is not currently mandatory for the Commissioner to do so.
3. Online service providers should take the BOSE into account in the design of their services and processes, and be prepared to report on their compliance. The core expectations generally require service providers to take reasonable steps and to have mechanisms in place to promote online safety. The Minister is entitled to determine additional expectations for particular services. Service providers are subject to a civil penalty for non-compliance with a reporting notice issued by the Commissioner, and the Commissioner may publish statements about a provider’s non-compliance with the BOSE.
4. Service providers should expect to be subject to new industry codes or standards soon after the commencement of the legislation. The Commissioner is required to make reasonable efforts to ensure that, for each section of the online industry, an industry code (developed by representatives of the section of the online industry) is registered within 6 months, or an industry standard (determined by the Commissioner) is registered within 12 months. The Commissioner will be entitled to issue a direction to comply with an industry code, and a service provider may be subject to a civil penalty for failure to comply with such a direction or for failure to comply with an industry standard.

In parallel to the development of the Bill, a review of the National Classification Scheme (Classification Review) is also ongoing, following delays as a consequence of COVID-19. In earlier reviews, including the Australian Law Reform Commission’s National Classification Scheme Review in March 2012, concerns were raised about the overlap between the online content scheme under the BSA and the National Classification Scheme including significant uncertainty about the treatment of online content between the two regimes. Given that the proposed Bill replaces the relevant portion of the BSA, the outcome of the Classification Review will also be important to provide a clearer picture of the future regulation of online content in Australia. Read our alert on the Classification Review here.

Please contact us if you require more information.

Thank you to Sarah Lee and Cameron McLean for their assistance in preparing this alert.