Australian online safety series
A spotlight on Australian regulation, specifically addressing online safety
12 Dec 2023
Insight
Australia
November has proven to be a busy month in the Australian online safety regulatory landscape, with the launch of:
- the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (Department) consultation on proposed amendments to the Online Safety (Basic Online Safety Expectations) Determination 2022 (BOSE); and
- the eSafety Commissioner’s consultation on the introduction of two new enforceable industry standards.
In this instalment of our online safety series, we summarise each of the consultations and their implications for affected service providers. You can see our previous briefing on the BOSE and industry codes generally here.
BOSE consultation
As part of the BOSE consultation, the Australian Government has published a draft amendment to the BOSE along with a consultation paper. Submissions on the BOSE consultation close on 16 February 2024. The draft amendment includes the following key proposals to amend the BOSE:
|
Topic |
Proposed amendment |
|
Generative AI and recommender systems (i.e. systems that prioritise content or make personalised content suggestions of online services) |
Take reasonable steps to:
|
|
User empowerment |
Take reasonable steps to make available controls that give end-users the choice and autonomy to support safe online interactions (e.g. blocking and muting controls, opt-in and opt-out measures for specific types of content, enabling privacy and safety measures to be changed). |
|
Child safety |
|
|
Additional requirements with respect to safety of services |
Introduce new examples of the kinds of reasonable steps that could be taken to ensure end-users are able to use a service in a safe manner, including:
|
|
Transparency reporting |
Publish regular transparency reports, at regular intervals (of no more than 12 months) with information regarding safety measures deployed on the service, the effectiveness of those measures, and the enforcement of terms of use and standards of conduct. Such transparency reports would need to be specific to Australia, unless to do so would not be reasonably practicable. |
New industry standards consultation
Since our last update on the industry code process, the eSafety Commissioner has registered the internet search engine code (available here). Following the eSafety Commissioner’s finding that the proposed industry codes for ‘relevant electronic services’ and ‘designated internet services’ did not contain appropriate community safeguards, the eSafety Commissioner has now published draft standards for these services which are the subject of this consultation. Submissions on these new industry standards close on 21 December 2023.
The proposed standards establish minimum compliance measures to address, minimise and prevent harms associated with access to the most harmful forms of online material (e.g. child sexual exploitation, pro-terror, drug-related material). Their application would be broad:
- ‘Relevant electronic service’ is defined in the Online Safety Act 2021 (Cth) (Act) as a service that enables end-users to communicate with one another by email, instant messaging, SMS, MMS, chat services, through online games and online dating services.
- ‘Designated internet service’ is defined in the Act as a service which allows end-users to access material using an internet carriage service or which delivers material to persons who have equipment appropriate for receiving that material. This includes many apps and websites, as well as online storage services.
What next?
Given the wide-ranging implications of the proposed amendments and industry standards, affected service providers should start to consider how these amendments and standards would impact their services and their businesses more generally. They should also consider engaging in these consultation processes.
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Legal Notice
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2024
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