Peter A Clarke

The Online Safety Bill 2021, was introduced into Parliament on 24 February 2021. The Minister’s Second Reading Speech is found here.  It will, if passed, replace the Enhancing Online Safety Act 2015 through the enactment of the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021.

It is legislation that is relevant who practice defamation and privacy law.

The Bill with the explanatory memorandum are extensive documents. There are 240 clauses.    Zdnet in Bill establishing cyber abuse takedown scheme for adults enters Parliament provides quite a good overview of the proposed legislation providing:

A new Online Safety Bill that extends the cyber takedown function to adults and cuts takedown response times in half has made its way into Australian Parliament.

As detailed in the Online Safety Bill 2021, the new scheme, based on the existing cyber bullying scheme for children, provides a mechanism for those experiencing the most seriously harmful online abuse to have this material removed from the internet. It empowers Australia’s eSafety Commissioner to order the removal of such material when websites, social media, and other online services fail to do so after a complaint is made.

The eSafety Commissioner will have the power to issue takedown notices directly to the services, and also to the end users responsible for the abusive content.

“The sharing of intimate images without consent is a terrible thing to do and causes great distress to victims,” Communications Minister Paul Fletcher said, introducing the Bill on Wednesday.  

The Bill also expands the cyberbullying scheme for children, enabling eSafety to order the removal of material from further online services such as games, websites, messaging, and hosting services — not just social media platforms.

Online platforms will also now see the amount of time that they have to pull down content after receiving a missive from eSafety halved — from 48 hours down to 24.

If a website or app systemically ignores takedown notices for class one material under the online content scheme, such as child sexual abuse material, the eSafety Commissioner can require search engines and app stores to remove access to that service.

These protections will be backed by civil penalties — up to AU$550,000 for companies and AU$111,000 for individuals.

The Bill also introduces basic online safety expectations for digital platforms, Fletcher said. These expectations will apply to service providers including social media, messaging apps and games, and designated internet services, such as websites, he explained.

The Bill allows the responsible minister to determine the details of these expectations by legislative instrument. The minister may also determine that the expectations apply to specific services.

“We expect that service providers will take reasonable steps to ensure that Australians are able to use their service in a safe manner,” Fletcher said. “We expect that services are not able to be used to bully abuse or humiliate Australians, and we expect the service providers will provide clear and readily identifiable mechanisms for users to report and lodge complaints about unacceptable use.”

eSafety also receives the power to publish statements about the performance of digital platforms in meeting the government’s expectations.

“The intent is to drive an improvement in the online safety practices of digital platforms where they fall short,” Fletcher continued.

“The Australian government believes the digital industry must step up and do more to keep their users safe.”

As a result, the Bill will require new and updated industry codes to be developed, such as those preventing children from setting up online accounts without the consent of an adult, providing access to a filtered internet service if desired by a user, and providing information about online safety and procedures for dealing with prohibited and illegal online content.

“We expected each section of the online industry will produce updated and strengthened industry codes within six months of the commencement of this Bill,” the minister said.

The Bill reforms the online content scheme so that class one material or material which is so abhorrent that it would be refused classification will no longer need to be reviewed and classified by the classification board before eSafety can order its removal.

It also provides the commissioner with the power to issue takedown notices to providers of particularly egregious illegal content such as child sexual exploitation material that is hosted outside of Australia, and which can be accessed by end users in Australia.

The commissioner will also receive the capability to prevent search engines from being the conduit to illegal online content, giving the power to issue a link deletion notice requesting the search engine cease providing a link to the material within 24 hours.

Further, the Bill allows eSafety to issue app removal notices that give app stores one day to remove apps that facilitate the posting of class one material.

Following the eSafety Commissioner in September 2019 issuing a direction to the nation’s ISPs to continue blocking websites that host the video of the Christchurch terrorist attack, and agreeing on new protocols with ISPs in March to block such content, the new Bill offers further action.

It introduces a specific and targeted power for the eSafety Commissioner to direct ISPs to block certain domains containing terrorist or extreme violent material, for time-limited periods, in the event of an online crisis event.

“The commissioner would need to consider the nature and likely reach of the material depicting, promoting, inciting, or instructing in abhorrent violent conduct and be satisfied that it would likely cause significant harm to the Australian community, and that an urgent response is required,” Fletcher said.

Where anonymous accounts are used to exchange disturbing or illegal content, or to hurl abuse, the Bill clarifies and strengthens the information gathering and investigative powers of eSafety to unmask their identities.

It allows the commissioner to require that social media services, relevant electronic services, and designated internet services provide identity and contact information about end users in relation to cyber bullying, cyber abuse, image-based abuse, or prohibited online content.

Civil penalties will apply to services that fail to comply with a written notice from the commissioner.

“We all enjoy standards of behaviour and civility in the town square that keep us safe and there are appropriate mechanisms and sanctions for those who break those rules; the Australian government believes that the digital town square should also be a safe place, and that there should be consequences for those who use the internet to cause others harm,” Fletcher said. “This Bill contains a comprehensive set of measures designed in accordance with this belief.”

Introduced simultaneously was the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021 [PDF], which repeals the Enhancing Online Safety Act 2015 upon commencement of the new Online Safety Act.

“The Online Safety Bill will become the new enabling legislation for Australia’s eSafety Commissioner, and will strengthen and extend the commissioner’s powers to keep Australians safe online,” Fletcher said, noting many factions will be transitioned to the new Act to create a single Act.

Among other things, the Bill increases maximum penalties from three years imprisonment to five years. Making changes to parts of the Criminal Code Act 1995, the Act seeks to punish offenders that continue to offend with higher penalties.

“These changes reflect the Australian public’s expectation that the punishment for this type of conduct should be commensurate with the seriousness of the offence,” Fletcher said.

The draft consultation on the Bill received 370 submissions.

To say the consultation period was truncated is to be kind to the Government.  The exposure draft was released in December with a closing date of 14 February.  According to the InnovationAus article The new Online Safety Bill has been a ‘rush job’ there were 370 submissions.  Not that they made much of a difference to the drafting.

This process is beginning to attract criticism with the Innovation article describing the rumblings:

Civil and digital rights groups say the sweeping new Online Safety Bill is a “rush job”, having been introduced to federal parliament just 10 days after government received nearly 400 submissions on the proposed laws.

The government unveiled the draft Online Safety Bill in December last year, with consultation running across the summer break up until 14 February.

The bill extends the eSafety Commissioner’s takedown scheme for Australian adults, allowing them to issue removal notices for content deemed to be rated as R18+ or higher, and to order the sites or apps be blocked if they do not comply.

There are significant concerns about the new powers, particularly their impact on sex workers and activists, the significant power and discretion handed to the commissioner, and on their potential to further undermine encryption.

Despite the scale and scope of the legislation, the process behind its introduction to parliament and consultations has been a “rush job”, Digital Rights Watch program director Lucie Krahulcova said.

Submissions on the draft legislation closed on 14 February, with 370 submissions made to government on the bill.

Despite the volume of submissions, the government introduced the legislation to Parliament just 10 days later on 24 February. It is still yet to release any of the submissions it received as part of that round of consultation.

It was subsequently referred to a Senate committee for inquiry, with submissions opening on 25 February and closing on 2 March. This left just three working days for stakeholders to make a further submission on the final legislation.

“The fact that the government is willing to plough on with the bill a mere 10 days after 370 submissions were filed should raise alarm bells. That is not what a democratic consultation process looks like,” Ms Krahulcova told InnovationAus.

“This does not indicate a meaningful consultation process, nor that community concerns are being taken seriously. It means we need to speak up even more,” Digital Rights Watch tweeted.

Former federal Greens Senator Scott Ludlam also raised concerns with the timeframe around the bill in a submission to the senate inquiry, saying it appears the government has already made up its mind.

“As expected, the draft bill provoked hundreds of submissions flagging grave concerns. For some reason the government has ignored this feedback and instead proposes to proceed with an unacceptably compressed timetable, with a largely unamended bill, in the absence of any formal response to red flags many civil society organisations have made,” Mr Ludlam said in the submission.

“This response indicates that the government had already made up its mind, calling into question the purpose of the exposure draft. It therefore falls to the senate, through this committee, to prevent the foreseeable risks posed by this bill as drafted.”

In its submission, tech giant Google also pointed out the speedy process of introducing the bill to Parliament.

“This bill was introduced into the House of Representatives a mere 10 days after the public consultation period on the Exposure Draft of the bill closed,” Google’s Samantha Yorke said in the submission.

The Online Safety Bill will introduce a “world-first cyber abuse take-down scheme” for Australians, Communications Minister Paul Fletcher said in Parliament last month.

“This new scheme provides a pathway for those experiencing the most seriously harmful online abuse to have this material removed from the internet,” Mr Fletcher said.

“The Australian government believes the digital industry must step up and do more to keep their users safe. That belief underpins the provisions of the bill.

“We all enjoy standards of behaviour and civility in the town square that keeps us safe, and there are appropriate mechanisms and sanctions for those who break these rules,” he said.

“The Australian government believes that the digital town squares should also be a safe place, and that there should be consequences for those who use the internet to cause others harm. This bill contains a comprehensive set of measures designed in accordance with this belief.”

Zdnet covered similar concerns, including those of Google and Digital Rights Watch (hardly natural stable mates) in Google joins call for clarification on much of Australia’s ‘rushed’ Online Safety Bill.  Similarly the Guardian reports on the laws of unintended consequences in Fears online safety law could censor all adult content and force sex workers off internet.