Tech giants like Meta and X face a European-style duty of care to proactively protect Australian users under an Albanese government plan that could produce legislation by the end of the year.
Communications minister Michelle Rowland on Wednesday night revealed the government will accept the key recommendation from a forthcoming review of Australia’s online safety laws and legislate a ‘Digital Duty of Care’.
If passed, the legal requirement long sought by platform critics and safety advocates would shift the onus onto online service providers to keep millions of Australians safe by continuously assessing and mitigating risks.
“The duty of care will put the onus on industry to prevent online harms at a systemic level, instead of individuals having to ‘enter at their own risk’,” Ms Rowland said.
“Australia’s online safety laws are world-leading, but they aren’t a set-and-forget.”
Australia’s Online Safety Act was hailed a world leading response to increasing internet harms when it was introduced but it is largely restricted to content takedowns and transparency measures, while some providers have flaunted efforts to enforce it.
The Act and the powers available to eSafety Commissioner Julie Inman Grant have been under review to examine if they remain fit-for-purpose amid the compliance struggles, emerging online harms like deepfakes, and tougher regulations elsewhere.
The review was conducted by former competition watchdog deputy chair Delia Rickard and landed on Ms Rowland’s desk last month.
The duty of care is among several recommendations that the government is now considering. InnovationAus.com understands the final review will be released within weeks.
The government has moved quickly on the duty of care call and will aim to unveil legislation this year, but further consultation and parliamentary scrutiny are likely.
“It is vital that the government holds the line against the temptation to dilute or break the single duty down into smaller obligations,” Reset Australia research director Dr Rys Farthing said.
“Australians deserve a broad and overarching duty owed to them from tech companies, as this is the only hook that can take us towards comprehensive user safety. We urge the Albanese Government to formalise this vital direction as an election commitment.”
Ms Rowland unveiled the proposal during a speech at the Sydney Institute on Wednesday night.
“A Duty of Care is a common law concept and statutory requirement that places a legal obligation to take reasonable steps to protect others from harm… It is a proven, workable and flexible model,” Ms Rowland said.
“This, as part of a growing global effort, will deliver a more systemic and preventative approach to making online services safer and healthier. Where platforms seriously breach their duty of care – where there are systemic failures – we will ensure the regulator can draw on strong penalty arrangements.”
Online safety advocates have argued Australia’s Digital Duty of Care should follow the approach in the EU’s Digital Services Act and the UK’s Online Safety Act by requiring risk assessments and mitigations of systemic risks.
The proposed duty of care could arrive alongside the Albanese government’s controversial ban on children under 16 years old accessing social media. Ms Rowland said the two measures will “create a powerful incentive for social media to value the safety and wellbeing of users alongside profit”.
However, there are doubts over how effective the age limit could be, its unintended consequences and what will be in scope.
“Our legislation will include a new definition of social media that is broad and robust, and is designed to capture more services under the term ‘age-restricted social media’ than what is currently covered under the existing Online Safety Act,” Ms Rowland said on Wednesday.
“Common social media services such as Facebook, Instagram, TikTok, and X will be subject to the minimum age limit. Messaging and gaming services will not be in scope of this definition.”
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