New Report on the Online Safety Act 2021 Recommends Shifting Responsibility to Service Providers and Establishing a renewed ‘Online Safety Commission’

Overview

The Government has tabled a report into the Online Safety Act 2021 (‘the Act’) following a statutory review of its operation in 2024. These changes are intended to expand protections against online harm and deal with abusive and toxic content.

The Report of the Statutory Review of the Online Safety Act 2021 (‘the Report’) contains 67 recommendations for the Act which aim to improve the safety of Australian residents online and help future-proof the Act in an increasingly online world. The Report largely accomplishes this through a ‘systems-based approach’ which shifts the onus of providing safe online spaces onto services providers such as Meta, X, and Reddit – with failure to do so resulting in increased penalties of up to $50 million.

Key Recommendations

Establishing a New Duty of Care

At the forefront of the Report is the need to establish a renewed duty of care which shifts responsibility on to service providers to prevent foreseeable harm on their platforms.

This recommendation is positioned as one that will benefit all involved parties by prioritising risk assessment and mitigation for users, and through simplifying compliance and reducing costs for digital platforms.

These changes are based on reforms seen in other jurisdictions such as the United Kingdom and North America. By following in their footsteps, the report argues that compliance from other countries in extra-territorial matters will become more consistent.

Safety Nets for Online Harm

Significant flaws in the way that complaints of harmful online content are addressed were also identified. In a sweeping assessment, the report found that:

· Harmful content is remaining online for too long;

· Reposts of previously removed content is being insufficiently dealt with; and

· Many platforms do not provide an adequate dispute resolution mechanism.

According to the Report, these problems can largely be resolved by further empowering eSafety. eSafety is an Australian independent regulator charged with investigating cases of ‘serious online abuse’. This includes cyberbullying, adult cyber abuse, and image-based abuse. eSafety is especially helpful for removing online content quickly to mitigate any potential harm.

The Report recommends that the eSafety commissioner be allowed to issue a formal removal notice 24 hours after a service provider has failed to respond to a complaint, replacing the current 48-hour requirement. The Report also recommends that eSafety should be enabled to issue a removal notice for reposted content that has already previously met the threshold for harmful content. These changes, it is argued, would allow for a quicker and more efficient process of content removal that places the wellbeing of the user as the focus.

Going further, the Report recommends that all online service providers should be required to maintain an “easily accessible, simple and user-friendly” internal complaint handling process. The Report maintains that when properly implemented, these processes should allow for even non-users to report issues relating to harmful content.

Creation of an Online Safety Commission

Following on from their recommendations which seek to empower eSafety in Australia, the Report recommends the establishment of an ‘Online Safety Commission’ similar to bodies such as the Australian Competition and Consumer Commission (ACCC).

The Report emphasises that a commission such as this must be sufficiently resourced to properly carry out the functions currently dealt with by the eSafety Commissioner. The Report therefore recommends that a decision-making body comprising of a Chair, Deputy Chair, and Commissioner is included in the commission to help efficiently address these functions.

Future Implementation

The recommendations as laid out in this Report will now be individually considered by the Government. Any changes adopted by the Government are likely to be introduced in stages in accordance with their respective importance. The Report has indicated that any changes regarding a new duty of care and the Online Safety Commission should be treated with the highest priority.

Danielle Snell, Managing Partner & Co-Founder | [email protected] | 0401 812 885.

Robert McGirr, Partner & Co-Founder | [email protected] | 0413 944 023.

Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.