Enhancing Online Safety for Children Act takes effect today

July 1, 2015 |

The Enhancing Online Safety for Children Act 2015 commences today.  It is legislation which potentially may have significant impact on social media.  It is quite an involved legislation with a complex structure with a detailed complaints process, categorisation of social media services, compliance regime and enforcement process including civil penalty proceedings and injunctions.  The real test is whether it will be able to deal with the ill that gave rise to its enactment, cyberbullying.  Given its potential impact on those using social media, at least hosting Australian sites, the consultation process and passage through the Parliament was fairly low key and not subject to  significant rigour.

Most social media sites are not based in Australia, such as Facebook, Instagram and Snapchat.  It will be interesting to see whether the E Commissioner will be more proactive in using these powers than the Privacy Commissioner has in using (or otherwise) his enforcement powers (which came into effect on 12 March 2014).

The commencement was reported in Cyberbullying a top priority as Australia’s first Children’s e-Safety Commissioner takes office which provides:

One in five Australian children between the ages of eight and 17 are exposed to cyberbullying.

And with children spending much of their waking hours online, especially on social media sites, the chances of children being bullied online is increasing.

In response to calls for improved safety, the Government announced funding of $10 million in the 2014-15 Budget to implement its Enhancing Online Safety for Children policy.

It also appointed the first ever Children’s e-Safety Commissioner, Alastair MacGibbon, who officially begins his job today.

2 Responses to “Enhancing Online Safety for Children Act takes effect today”

  1. Enhancing Online Safety for Children Act takes effect today | Australian Law Blogs

    […] Enhancing Online Safety for Children Act takes effect today […]

  2. David V

    Thanks Peter,

    I had some interaction with the proponents, who emphasise the special vulnerability of young people, and their lack of resources to deal with what can be life threatening harassment mediated by the irresponsible advertising/psychographic profiling giants, particularly Facebook.

    I’d be the first to campaign for a (currently lacking) right to free speech, along with the missing right to privacy, but amongst the exceptions to the absolute application of that free speech ideal would be protection of those not yet able to look after themselves. This perspective seemed missing from some of the criticisms of the new model from free speech fundamentalists.

    The real story here is I think the effective special pleading of these offshore giants, who are the home of much of the bullying on an industrial and daily level. Their recently abandoned ‘move fast and break things’ motto appears to epitomise a lack of willingness to accept responsibility for any role in projection of risk from their immensely profitable platform.

    The new law’s multi-tier entity classification regime puts mild pressure on such giants to have a compliant process, but once they can get into that tier, most of the new enforcement mechanisms are not applicable to them.

    In the US they have also acted with contempt for investors and users alike, and impunity from feeble regulatory efforts that, as here, seem more often to put barriers in place of their competition that to bring them to account.

    This exclusion represents IMHO a wimp out from the jurisdictional challenges of these offshore services, and a recipe for minor improvements in responsiveness, but little beyond what they may chose to do anyway, and little capacity to deal with their recalcitrance in individual or systemic examples, should this occur. The main effect, of a symbolic nature, will fall on local businesses of this kind, who will face regulatory incentives to move offshore.

    Foreign hosts of deliberately abusive material appear unlikely to face any more pressure than the larger targets in the social media realm.

    Public naming and shaming or reputation impact are likely to be the most effective methods in this role, but they would require a regulator who wants to regulate, rather than someone who fears causing offence. For this role to work, you’d need someone willing to, in the right circumstances, vigorously poke those profiting from such hosting, and explore the boundaries. It will be interesting to assess the creativeness and application of the commissioner, who will hopefully be independent and robust.


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