In December 2020, the Australian Government released a draft bill for a new Online Safety Act (Draft Bill) as part of its commitment to online safety for all Australians. While the Draft Bill proposes to introduce measures to enhance online safety, some industry stakeholders and commentators have flagged the Draft Bill’s potential to erode freedom of expression if not properly crafted.

Online Safety Act

The draft Bill has been developed following substantial public and stakeholder consultation, including consideration of 85 submissions received in response to the Government’s public ‘Online Safety Legislative Reform Discussion Paper’ which was released in December 2019 (2019 Online Safety Discussion Paper).

The Draft Bill essentially works in two ways, that is:

• to provide new and strengthened powers for the eSafety Commissioner to keep Australians safe online; and
• to require digital industry participants to take more active measures to ensure that the services they provide are safe.

To do this, the Draft Bill proposes to introduce a range of measures to address varying levels and types of harm, some of which are detailed below:

• A set of basic online safety expectations for social media platforms, relevant electronic services and designated internet services, which clearly state community expectations. Mandatory reporting requirements will also be imposed;
• Consistent take-down requirements for image-based abuse, cyber abuse, cyberbullying and harmful online content, requiring online service providers to remove offending material within a 24 hour period of receiving a notice from the eSafety Commissioner;
• New abhorrent violent material blocking arrangements which enable the eSafety Commissioner to quickly rapidly to an online crisis event such as the Christchurch terrorist attacks, by requesting internet service providers to block access to sites hosting seriously harmful content; and
• A new world first cyber abuse scheme for Australian adults, to facilitate the removal of serious online abuse and harassment. Under this scheme, the eSafety Commissioner will be empowered to order the removal of seriously harmful online abuse that meets thresholds consistent with those set out in the Criminal Code Act 1995 (Cth). The eSafety Commissioner will be able to exercise this power when websites, social media and other online services do not remove it after a complaint is made.

Many of these proposed reforms were first tabled in the Government’s 2019 Online Safety Discussion Paper. While the reforms were recognised and welcomed in principle, they were also criticised by some industry stakeholders and commentators for their potential disproportionate effect on freedom of expression. For example, the Draft Bill creates the risk that social media companies may err on the side of caution and erroneously remove legitimate content from their platforms. This risk is heightened when social media companies have just 24 hours to comply with takedown notices issued from the safety Commissioner.

With social media companies having to comply with a range of laws in different jurisdictions, there is also the concern that freedom of speech may be encroached upon should an unclear and ambiguous regime be implemented without a lack of practical guidance.

Freedom of Expression in Australia

Unlike in America, the Australian Constitution does not protect freedom of expression nor is there a right to freedom of expression at a federal level. While the High Court has held that an implied freedom of political communication exists, this only operates as a freedom from government restraint and not as a right conferred on individuals. There are also a wide range of limitations to freedom of expression in Australia, including but not limited to defamation, discrimination, anti-vilification laws, classification, censorship of offensive material, treason and the urging of violent offences.

As Australia has no constitutional or legislative protection for freedom of speech, it has been suggested that the Australian Government should conduct a human rights impact assessment to assess the impact the proposed measures in the Draft Bill will have on freedom of expression. A human rights impact assessment would have the additional benefit of identifying and developing safeguards to mitigate any potential negative impacts of the Draft Bill, which is critical to form the foundation of a sustainable regulatory regime.

What’s next?

Companies and regulators have a shared responsibility to ensure that safeguards are developed to protect all users from harmful online content, while fostering a public forum for diverse discussions that align with community expectations. In the weeks since the US election and the US Capitol riot, Australian politics has become rife with debate on how to strike this balance. We expect to see this debate continue in the coming weeks, particularly as submissions are released and considered.

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