CTH Online Safety Bill referred to Senate Environment and Communications Legislation Committee

On 25 February 2021, the Online Safety Bill 2021 (Cth) (‘the Bill’) was referred to the Senate Environment and Communications Legislation Committee. A report from the Committee is due on 11 March 2021. The Bill was introduced to the House of Representatives by Mr Paul Fletcher, Minister for Communications, Urban Infrastructure, Cities and the Arts (‘the Minister’) on 24 February 2021. The Bill seeks to strengthen the national approach to online safety for children and adults by proposing to establish a “cyberabuse take-down scheme”, largely through the granting of new, more expansive powers to the eSafety Commissioner.

In his second reading speech, the Minister noted that just as there are strict standards of behaviour in the physical world keeping Australians safe, there should be equally strict standards within the digital world. The Minister stated that he believed that the Bill will provide comprehensive measures for achieving the goal of protecting Australians from harm online.

Background

According to the Bill’s explanatory memorandum, a significant reason why improvements to the current online safety mechanisms are needed is because of the extent to which Australians use the internet in their daily lives. The Australian Communications and Media Authority (ACMA) produced a report for 2018-19 which highlighted the online activity of Australians, and it found that “90% of Australian adults had accessed the internet, with near universal access by those aged 18-34”. ACMA also reported that 63% of Australian adults communicate via social networking, and 83% use online services to view video content. Furthermore, a report by the eSafety Commissioner (‘the Commissioner’) found that “81% of children were online by the age of five”.

The Bill’s explanatory memorandum notes that internet usage by children and adults has increased in response to the COVID-19 pandemic, increasing the need to respond. The memorandum states that as a consequence, more internet usage leads to a higher potential for exposure to harm, such as “cyber-bullying, trolling, non-consensual sharing of intimate images, child grooming, cyber-flashing, cyberstalking … [and] exposure to harmful content such as footage of terrorist and extreme violent material, child abuse material and extremely violent or sexually explicit content”.

Proposed Bill

The Bill proposes to strengthen Australia’s online safety framework by building on existing elements of the framework, found in the Enhancing Online Safety Act 2015 and Schedules 5 and 7 of the Broadcasting Services Act 1992. Specifically, the remit of the powers of the eSafety Commissioner, established in 2015, are proposed to be expanded in the following ways:

• Giving the Commissioner “the power to issue take-down notices directly to the services, and also to end-users responsible for the abusive content”;
• Allowing the Commissioner to order material to be removed from all online services where children spend time (such as games and other websites), rather than only social media platforms;
• Reducing the time frame for removal of intimate images shared without consent following notice by the Commissioner, with civil penalties of up to $111,000 for non-compliance;
• Empowering the Commissioner to respond more quickly to the “worst of the worst types of online content”. The Minister gave the example of child sexual exploitation material - in such cases, the Bill proposes that such material would not need to be reviewed and classified before the Commissioner can order removal;
• Allowing the Commissioner to issue link deletion and app removal notices to online app stores and search engines, so that these can not be used to direct users to illegal content;
• Giving the Commissioner a “rapid website-blocking power” in the event of shocking abhorrent material being streamed or shared online. The Minister gave the example of the live-streamed terrorist attacks in 2019 in Christchurch, New Zealand.
• Allowing the Commissioner to require various internet services to provide identity and contact information about end-users, in situations involving “cyberbullying, cyber abuse, image-based abuse or prohibited online content”.

Furthermore, the Bill introduces a statement of expectations, called the ‘Basic Online Safety Expectations’, which outlines what the Australian government expects of businesses in relevant industries, including internet service providers, social media services, websites and more. The Minister argues that these expectations, along with the proposed changes to the law and the extended powers of the eSafety Commissioner, will contribute to creating a “safer online environment”, should the Bill progress through Parliament and be assented.  

The Minister emphasises that the proposed Bill would not override any existing criminal provisions for abuse and harassment, and ensures that victims of online abuse would still have the ability to take matters to the police. The Minister makes it clear that the Bill seeks to expand the ways in which victims of serious internet harm can seek redress, not limit them.

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Online Safety Bill 2021 (Cth), second reading speech and explanatory memorandum available from TimeBase’s LawOne service.

2018-19 Communications Report (Australian Communications and Media Authority, February 2020)

State of Play – Youth, Kids and Digital Dangers (eSafety Commissioner, 3 May 2018)