Posted on August 27, 2021 by Lindsay Taylor and Lachlan Penninkilampi

Online Safety Act 2021: Overview and ramifications for public officials

On 23 July 2021, the Online Safety Act 2021 (Cth) (‘OS Act‘) received Royal Assent from the Governor-General. The OS Act will commence a day to be fixed by Proclamation or the day after the end of the period of 6 months from Royal Assent.

The OS Act is a significant development in digital technology law. It will be consequential for anyone who uses online services. This post provides an overview of the OS Act and outlines two ramifications for public officials.

Overview of the OS Act

Background

Repealing and replacing the Enhancing Online Safety Act 2015 (Cth) (‘EOS Act‘), the OS Act contains a new digital regulatory regime with the stated objects of improving and promoting online safety for Australians. These objects are effected through the exercise of the powers and functions of the eSafety Commissioner (‘Commissioner‘), whose office was established under the EOS Act and continues under the OS Act.

The OS Act is significantly more expansive than the EOS Act. The Commissioner has new powers and functions under the OS Act, most notably in relation to cyber abuse targeted at Australian adults, material that depicts abhorrent violent conduct, and a new Online Content Scheme. There is also a more expansive framework of ‘Basic Online Safety Expectations‘ for the technology industry with attendant reporting requirements for service providers covered by them.

A wide range of online services are regulated by the OS Act. These are defined by terms such as ‘social media service‘, ‘relevant electronic service‘, and ‘designated internet service‘, and include services such as social media, emails, instant messaging, SMSs, MMSs, chats, apps, online gaming, and internet carriage services, among other online services.

Like the EOS Act, the OS Act defines when material is ‘provided‘, ‘posted‘, and ‘removed‘ from certain services. For example, material is ‘provided‘ on social media service, relevant electronic service, or designated internet service if the material is accessible to, or delivered to, one or more of the end‑users using the service. There are some exceptions as to when a person is taken to ‘provide‘ such as a service, such as when a person only provides a billing service or fee collection service in relation to a service regulated by the OS Act.

The regime

The OS Act provides the Commissioner powers and functions to govern online services in relation to the following (‘Regulated Material‘):

  • Cyber-bullying material targeted at an Australian child;
  • Non-consensual sharing of material being an intimate image;
  • Cyber abuse material targeted at an Australian adult;
  • Material that depicts abhorrent violent content; and
  • Material that is covered by the Online Content Scheme.

In most cases, the OS Act works by allowing the Commissioner to issue a notice to a service provider to remove Regulated Material (‘Removal Notice‘), with formal warnings and civil penalties available for non-compliance. The preconditions and procedures for issuing a Removal Notice differ depending on the type of Regulated Material being dealt with by the Commissioner.

For cyber-bullying and cyber abuse material, the intervention of the Commissioner is designed to be a safety net. A person who may make a complaint to the Commissioner about the material must first request a service provider to remove it before the Commissioner can issue a Removal Notice. The service provider has 48 hours to comply with that complainant’s request (or longer, if the Commissioner allows). The material must also have been provided on a social media service, relevant electronic service, or designated internet service, and the Commissioner must be satisfied that the material is or was cyber‑abuse material targeted at an Australian adult as defined under the OS Act. If all the preconditions are satisfied and the Commissioner decides to issue a Removal Notice, then the service provider will have 24 hours to comply unless the Commissioner allows more time. The civil penalty for non-compliance with a Removal Notice is 500 penalty units (currently $111,000). A Removal Notice can also be given to the end-user who posted the material and the hosting service provider hosting the material.

The OS Act regulates the non-consensual sharing of intimate images similarly. However, a key difference is that the Commissioner can act on the complaint or objection of a person without that person having to make a complaint to the relevant service provider service provider first. There is also an offence created by the OS Act in relation to this the non-consensual sharing of intimate images.

For material that depicts abhorrent violent conduct, the OS Act works differently. The Commissioner can, without having to receive any complaint or objection, issue requests or notices to internet service providers to block access to such material if the Commissioner is satisfied that the availability of the material online is likely to cause significant harm to the Australian community. Exemptions to this part of the OS Act apply to the monitoring, investigation, and enforcement of laws, legal proceedings, research, journalism, law reform and policy, and artistic works.

Material covered by the Online Content Scheme is also regulated differently. This scheme enables the Commissioner to issue Removal Notices to service providers to remove certain material which is or would be classified as RC, X 18+, or Category 2 restricted under the National Classification Code. The Online Content Scheme covers a wider range of services, including hosting, internet search engines, and app distribution. The Online Content Scheme also allows for industry self-regulation through the development of codes and standards. The OS Act allows complaints relating to the Online Content Scheme to be made to the Commissioner, although these are not preconditions to the exercise of any power in relation to the Online Content Scheme.

Other provisions

The Commissioner’s powers are supplemented with provisions for information gathering, investigation, disclosure, and enforcement powers. For example, the Commissioner has the power to require a person to give end-user identity information and contact details if the Commissioner believes that they may be relevant to the operation of the OS Act. The person has to give that information even if it might tend to incriminate them.

The OS Act provides for various means by which the Commissioner’s decisions may be reviewed. The Act requires an internal review system to be created by the Commissioner and provides for merits review by the Administrative Appeals Tribunal of a range of decisions under the Act, including the issue of Removal Notices.

The OS Act expressly provides that it operates concurrently with State laws. The OS Act will not be enforceable to the extent of any infringement of the constitutional doctrine of the implied freedom of political communication.

Ramifications for public officials

There are two significant ramifications for public officials who use online services.

The first is the greater need to be vigilant and responsive to complaints when using online services such as social media. In the case of cyber abuse of an Australian adult, for example, the time between a person posting something online and their being issued a $110,000 civil penalty by the Commissioner is potentially as little as 72 hours.

The second is the availability of additional means created by the OS Act by which public officials may deal with unsafe online behaviour. Adults targeted by cyber abuse will, when the OS Act is in force, be able to request the end-user and service provide to remove the abuse content, and failing that have recourse to the Commissioner—something which was not available under the EOS Act. Subject to the administrative efficacy of the Commissioner, this process could produce results significantly faster than any concurrent disciplinary action (and, if relevant, defamation proceedings).

You can find the OS Act on the Federal Register of Legislation here. You can find out more about the Commissioner by following this link.

If you have any questions about this blog, please leave a comment below. Alternatively, please call Dr Lindsay Taylor on 02 8235 9701 or Lachlan Penninkilampi on 02 8235 9719.