Communications Minister Anika Wells has introduced Labor's digital duty of care bill into parliament. The legislation amends the Online Safety Act, designed to protect Australians from online harm.
Authors
- Kimberlee Weatherall
Professor of Law, University of Sydney
- Christine Parker
Professor of Law, The University of Melbourne
- Kath Albury
Professor of Media and Communication and Chief Investigator, ARC Centre of Excellence for Automated Decision-Making + Society, Swinburne University of Technology
At the core of the digital duty of care is the principle that online service providers - everything from social media platforms to websites, online games and messaging apps - have a duty to provide a safe environment online.
Under the bill, platforms must take appropriate action to protect Australians from seriously harmful material and conduct.
They must also protect Australian children from harmful material and conduct, such as bullying, and material promoting disordered eating or encouraging dangerous stunts. Children would also need to be protected from some harmful algorithmic design features.
In addition, the legislation would enable the minister to require tech platforms to give users tools to "manage the design features of their service", such as providing controls over what content is recommended. Prime Minister Anthony Albanese has described this "my feed, my way" initiative as a way for Australians to gain control over their social media algorithms.
The journey so far
The government released the exposure draft of the digital duty of care bill on September 8, opening it up to written feedback for two weeks.
Several organisations and research groups across Australia made submissions, but the government has not provided a summary of the feedback.
Experts generally welcomed the overall proactive approach: putting responsibility on online service providers to make the online environment safer for Australians.
Submissions also highlighted the importance of provisions to protect researchers, give them access to data about the platforms and people's experience, and to allow them to use made-up " sock puppet " accounts to enable independent scrutiny of the online environment.
On the other hand, experts called for changes to make the duty more meaningful and effective. Some pointed out that enforcing it shouldn't just fall to the eSafety Commissioner. Individuals should also be able to enforce the digital duty of care and seek remedies to harm, either individually or collectively.
Another concern was whether online service providers might overreact to the duty by demoting or removing public-interest content - such as education about illicit drug use and sexual health. Experts had a range of suggestions for what should count as "seriously harmful material and conduct".
What does the bill look like now?
This is a large and complex piece of legislation. There are real challenges in reconciling the need for safer online environments with other interests, and in a way that's flexible enough to adjust as the technologies, and how people use them, evolve.
In the path from exposure draft to bill, there are quite a few tweaks and changes to the language, which will need to be analysed for their impact.
The government has published an explanatory memorandum to help people understand the bill. It's worth a read, especially where it discusses the impacts of algorithmic design.
Even on a first reading, we can already see some interesting shifts: mostly around the question of what kinds of "serious harmful material and conduct" are covered by the duty.
One notable change responds to concerns about social media encouraging gender-based violence. The definition of harmful material for adults now includes "the encouragement, promotion or incitement of gender-based violence". It has also expanded to include non-consensual fake nude material and posting - or threatening to post - intimate images without consent.
The bill also adds that material or conduct that is a Commonwealth criminal offence will only be subject to the duty if it's likely to cause serious harm.
Importantly, however, the biggest change is that the Minister will no longer have the power to add further categories of seriously harmful material or conduct by legislative instrument. Wells has indicated that if new categories of harm are to be added, this will now be done by Parliament passing amendments to the law.
A win for journalism and public health advocates
In response to concerns about over-inclusive content moderation and self-censorship, a new set of provisions have been added that explicitly exclude several categories of content from the duty.
These include professional news material, artistic and educational content (that is not contrary to the public interest), and scientific and academic research. A change that will please public health advocates is to exclude "material that is necessary for, or of assistance in, protecting or promoting public health and safety", and material aimed at "reducing harms to individuals".
Public health and harm reduction advocates will also be pleased to see that restrictions of material or conduct that "encourages, promotes, urges or instructs illicit drug use" has been removed from the bill. Advocates were concerned about the potential impacts on drug education.
However it's not yet clear whether drug harm reduction, sex education and sexual health organisations will have any additional mechanisms to appeal if online platforms suppress or block public health outreach content.
What's next?
Despite changes made to the bill in the past month, the Coalition remains critical of the legislation and is unlikely to support it.
Greens Senator Sarah Hanson-Young said today the Greens would support the bill in principle , but are asking for much steeper penalties for big tech companies if they breach the duty. The party also wants Australians to have the ability to sue tech companies directly.
The bill will now be sent to a Senate inquiry, with a report expected before the end of the year.
Kimberlee Weatherall is a chief investigator with the ARC Centre of Excellence for Automated Decision Making & Society, funded by the Australian Research Council and a range of partner organisations, and co-director of the University of Sydney's Centre for AI, Trust and Governance, which receives funding from a range of sources as declared on the Centre's website, including IBM and Google. She is also a member of Australia's Open Government Partnership Forum.
Christine Parker receives funding from the Australian Research Council for the ARC Centre of Excellence for Automated Decision-Making and Society.
Kath Albury receives funding from the Australian Research Council, FORTE (The Swedish Council for Health, Working Life and Welfare) and VicHealth. She undertakes occasional pro-bono advisory work with Scarlet Alliance, UNESCO, the National Association of People with HIV Australia, 1800MyOptions and ASHM. She is an ordinary member of Thorne Harbour Health.
