Australia: Content Moderation - Harmful Content: Online Safety Act 2021 (Cth)

Latest Developments

In June 2021, the federal government passed the Online Safety Act 2021 (OS Act) which makes online service providers accountable for the safety of people who use their services. In particular, it regulates cyber-bullying material targeted at children, cyber-abuse material targeted at adults, abhorrent violent conduct, non-consensual sharing of intimate images and sets out basic online safety expectations for social media services, relevant electronic services and designated internet services.

Summary

The key features of the OS Act are as follows:

• Hosting service providers, individuals who post the offending material and providers of social media services, relevant electronic services or designated internet services, may be given a removal notice requiring the removal or cessation within 24 hours of hosting:
  • Cyber‑abuse material targeted at Australian adults;
  • Cyber bullying material targeted at Australian children; or
  • Individuals who share or threaten to share intimate images without the consent of the person depicted in the image
• Internet service providers may be requested or required to block access to material that promotes, incites, instructs or depicts abhorrent violent conduct;
• Individuals who share or threaten to share intimate images without the consent of the person depicted may be liable to a civil penalty;
• Industry bodies or associations are directed to develop codes to regulate certain types of harmful online material, which are to be registered by the eSafety commissioner;
• Hosting service providers, providers of social media services, relevant electronic service or designated internet services may be given a ‘removal notice’, providers of internet search engine services may be given a ‘link deletion notice’ and providers of app distribution such providers to remove certain material, based on its actual, likely or lack of classification by the Australian Classification Board, within 24 hours; and
• The relevant Minister may determine basic online safety expectations for social media services, relevant electronic services and designated internet services, for example that such providers will take reasonable steps to ensure that end users are able to use the service in a safe manner.

How could it be relevant for you?

A business operating wholly or partly in one of the sectors set out above should be aware of their obligations to comply with the online safety expectations as well as any notices they receive within the short timeframe specified.

Next steps

The OS Act commenced on 23 January 2022 and separate codes have been developed for different online business sectors (set out below) which outline steps that must be taken to reduce access and exposure to certain types of harmful online material, including child sexual exploitation material and terrorist material.

The different sectors identified by the OS Act are:

• Social media services;
• Relevant electronic services;
• Designated internet services;
• Internet search engine services;
• App distribution services;
• Hosting services;
• Internet carriage services; and
• Manufacturers, suppliers, maintenance and installation providers of equipment as well as operating service providers.

The draft industry codes were published on 1 September 2022 and were subject to public and industry consultation until the beginning of October 2022. Following public consultation, the industry associations submitted draft industry codes to eSafety on 18 November 2022. However, on 9 February 2023 the eSafety Commissioner advised that the draft industry codes for class 1 material (material that would be refused classification) did not provide appropriate community safeguards and were unlikely to meet the statutory requirements for registration.

On 31 March 2023, industry associations resubmitted eight industry codes for class 1 material to eSafety for registration. Of these eight, the eSafety Commissioner decided to register five industry codes, which were published on the Register of online industry codes and industry standards page on 16 June 2023:

• Social media services;
• App distribution services;
• Hosting services;
• Internet carriage services; and
• Manufacturers, suppliers, maintenance and installation providers of equipment as well as operating service providers.

On 7 September 2023, the eSafety Commissioner added the Internet Search Engine Services Code to this list following resubmissions by the relevant industry associations.

The obligations contained in these codes will come into effect on 16 December 2023.

The second phase of codes development, focusing on ‘class 2’ content (content that might be classified as X18+ or R18+) has not yet commenced and will take place after the first phase is completed.

*Information is accurate up to 27 November 2023