Last week the Albanese government released their response to the Rickard Review of the Online Safety Act 2021 with the centrepiece being a new digital duty of care.
Digital Rights Watch actively participated throughout the development of the Online Safety Act 2021 and we are pleased our calls for a digital duty of care have been answered in the response to this review and applaud the government for progressing this initiative.
In principle, an effective digital duty of care would represent a reorientation of the burden for safety and security in the online world from individuals to corporations, and require them to justify their social licence to operate in Australia. The key features of the recommended digital duty of care are:
- Risk-based and proportionate, applying to all providers where there is a risk of harm to Australians
- High-reach and high-risk platforms face additional obligations including annual risk assessments, transparency reporting, and a compliance function reporting to senior management and board
- Best interests of the child must be a primary consideration in platform design and risk mitigation
- The duty will be supported by mandatory codes created by the eSafety Commissioner, subject to parliamentary scrutiny
- Repeated non-compliance with content removal can be used as evidence of breach of the duty of care
While we do not see a digital duty of care as a total solution to the problems that the online safety regime is seeking to address, if implemented well it will significantly contribute to improving the experience of Australians who use online spaces and services. We are excited to see the government indicate it expects to table legislation before the end of the year.
The proposed digital duty of care will inevitably involve placing even more reliance upon large, powerful and often monopolistic technology companies to proactively define, determine and identify what is and is not safe and appropriate. The operationalisation of the digital duty of care will therefore be critical to its success, and we look forward to advocating for the best protections possible. We advocate for an approach that is transparent and rights-respecting, which places obligations on technology companies to proactively disclose risks of harm and act to address them. We think a human rights approach is particularly important to avoid over-capture, increased marginalisation and censorship of particular people, communities and content.
We look forward to continuing to work with policy-makers to produce the best outcome for human rights-respecting changes to the Online Safety Act 2021.