Obligations to protect Australians, especially children
The Online Safety Act 2021 (the Act) created new obligations for the technology industry to protect Australians, especially children, from seriously harmful online material.
Since the Act came into force in 2022, eSafety has been working with technology companies to ensure these obligations are met.
The Act sets out that the Australian Parliament intended for industry representative bodies to make industry Codes which would apply to the activities of industry participants.
The first phase of these codes tackled the worst of the worst material, including child sexual abuse and terrorist or violent extremist material.
Codes and Standards tackling such material are now in force, setting out the obligations for technology companies which operate in Australia to address its proliferation on their platforms, with breaches punishable by fines of up to $49.5 million.
Protecting children against exposure to harmful content
The second phase of industry codes - developed by industry - cover children's exposure to pornography.
eSafety's latest research reinforces that children are frequently encountering sexualised and age-inappropriate content online.
The Digital use and risk: Online platform engagement among children aged 10 to 15 report found:
- More than 1 in 4 (26%) children aged 10 to 15 had seen sexual images or videos online, while 19% had encountered them in the past 12 months
- Almost 1 in 10 (9%) children aged 10 to 15 had seen violent sexual images or videos, with 6% viewing it in the past 12 months.
The Codes also deal with other harmful material including high-impact violence material; and suicide, eating disorder and self-harm material.
Registering Codes and Standards under the Act - how it works
Under the Act, eSafety is required to request that industry draft Codes to address this material in the first instance.
The eSafety Commissioner must be satisfied these Codes provide appropriate community safeguards. If this is the case, the Act specifies the Commissioner may register them, making them enforceable.
If the Commissioner is not satisfied that a code provides appropriate community safeguards, only then can the Commissioner proceed to make a Standard.
Standards are subject to a period of parliamentary scrutiny and disallowance. If a Standard is disallowed by Parliament, then it will no longer be enforceable. Under the Act, industry drafted codes are not subject to a period of parliamentary scrutiny.
Codes drafted by industry
eSafety recently announced the Commissioner had completed assessment of three of the nine draft Codes submitted by industry under the second phase of the Codes process, and that these would be registered.
The registered Codes cover search engines, enterprise hosting and internet carriage services, and outline how these services must prevent children's access and exposure to age-inappropriate material.
As required under the Act, all Codes are drafted by industry.
The Codes were developed by a steering group of industry representative associations. These groups represent companies like Google, Microsoft, and Yahoo!
The Code development process included a public consultation process in October and November 2024 and stakeholder roundtables. eSafety consulted on the development of the Codes as required under the Online Safety Act.
Measures outlined in the Codes include age assurance for account holders and mandatory safety messages for users who enter searches on topics such as suicide or self-harm methods.
Search engines are one of the main gateways available to children for much of the harmful material they may encounter, so the Code for this sector is an opportunity to provide very important safeguards.
eSafety has spoken about opportunities for all participants in the tech stack to play their part in protecting children from access or exposure to harmful material since the publication of our Age Verification Roadmap in 2023, and in the Phase 2 Codes Position Paper published in July 2024.
eSafety will announce a decision on the remaining six industry drafted Codes in due course.
Other jurisdictions across the world have been or are currently considering measures like those proposed in the Phase 2 Codes and Standards, including the United Kingdom via its Online Safety Act, Europe via the Digital Services Act, and parts of the United States.
Consultation and communication
