In brief - Office of e-Safety Commissioner to have power to issue substantial fines
A new Bill introduced by the government proposes to establish the Office of e-Safety Commissioner, which will have powers to order websites to remove material which is intimidating, harassing or humiliating to an Australian child or children and to issue substantial fines for non-compliance.
Federal government addresses Australia's cyberbullying epidemic
In June this year, we wrote about Australia's struggle to regulate cyberbullying, which has become a real and serious problem in this country. (See Cyberbullying - laws struggling to keep up with technology.)
In a further step, on 3 December 2014, the federal government introduced the Enhancing Online Safety for Children Bill 2014 ("the Bill").
Proposed establishment of Office of e-Safety Commissioner
The Bill is specifically aimed at addressing harmful cyberbullying material targeting children in Australia. It does not intend to address all forms of bullying that may occur.
If the Bill becomes law, the Commonwealth will establish a new Office of e-Safety Commissioner ("the Office") within the Australian Communications and Media Authority (ACMA). It is expected that the Office of e-Safety Commissioner will be resourced with ACMA staff currently engaged in online safety matters.
The Office will be charged with implementing online safety initiatives aimed at minors, including educating children about online safety. The Office will be empowered to issue takedown notices to businesses and individuals (including minors), requiring them to remove any material from their website that is determined by the Office to be offensive to children.
Proposed two tiered system for classification of websites
The proposed law will introduce a two tiered system. Tier one websites will be those which are deemed to be compliant with all online safety initiatives published by the Office.
Companies that fail to comply voluntarily with all online safety initiatives published by the Office will be classified as tier two companies. Tier two websites will be those that are not compliant with online safety initiatives and they will be closely monitored by the Office and may be subjected to enforcement and/or penalties issued by the Office.
The aim of the two tier system is to encourage social media websites to work cooperatively with the public and with the Commissioner.
Commissioner to be empowered to order social media websites to remove intimidating material
Where material harmful to minors is discovered online, the proposed system will require complainants to approach the social media service where the material was posted as a first step. If the complainant receives no response or an inadequate response, complainants can then go to the Office.
The Office will be empowered to determine if material posted online is "seriously intimidating, harassing or humiliating" to an Australian child or children, and if so, to require action be taken to remove the material from public display. The Office of e-Safety Commissioner will be granted powers to allow it to enforce its orders.
The Commissioner will be able to:
issue a notice to a social media website requiring it to remove material determined to be in breach of the new law; and/or
issue a notice to a person who posted the material, requiring the person to remove the material, refrain from posting the material and/or apologise for posting the material.
Companies may face fines of up to $17,000 a day
The Bill anticipates fines of 100 penalty points per day, currently set at $170 per point. Companies which fail to comply with the Commissioner's requests within 48 hours of a notice being issued may be subjected to fines of up to $17,000 per day.
Businesses may also face additional civil penalties and actions. Individuals will remain subject to existing criminal and civil laws and could be reported to police by the Commissioner for material posted online.
Limits to the Commissioner's powers
The Commissioner's powers will not extend to the ability to impose fines on websites that are hosted outside Australia.
Freedom of expression vs. safety of Australian children
Opponents of the proposed Bill have raised arguments that the proposed law imposes unwarranted restrictions on freedom of expression and creates further onerous and costly compliance obligations for businesses.
However, the proponents of the Bill insist that the Bill is aimed specifically at ensuring the protection of Australian children and that the government is "...conscious of not imposing any more additional regulatory burden than is necessary to keep Australian children safe online."
The government also emphasised that it has listened to the feedback provided in relation to the draft Bill and has actively engaged in consultation with organisations such as Google, Facebook, Twitter and even the Australian Human Rights Commission.
Proposed allocation of $10 million to fight cyberbullying
Parliamentary debate on the Bill has been adjourned until 2015. If passed, the Bill will go to the senate, where it may be referred to a senate committee.
If ultimately approved, the scheme is currently expected to receive a $10 million budget allocation, with $7.5 million to be attributed to schools to purchase e-safety programs, $2.4 million to be allocated to the Office and $100,000 to go towards public education and awareness campaigns.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.