At the core of the digital duty of care is the principle that online service providers – everything from social media platforms to websites, online games and messaging apps – have a duty to provide a safe environment online.
Under the bill, platforms must take appropriate action to protect Australians from seriously harmful material and conduct.
They must also protect Australian children from harmful material and conduct, such as bullying, and material promoting disordered eating or encouraging dangerous stunts. Children would also need to be protected from some harmful algorithmic design features.
In addition, the legislation would enable the minister to require tech platforms to give users tools to “manage the design features of their service”, such as providing controls over what content is recommended. Prime Minister Anthony Albanese has described this “my feed, my way” initiative as a way for Australians to gain control over their social media algorithms.
The journey so far
The government released the exposure draft of the digital duty of care bill on September 8, opening it up to written feedback for two weeks.
Several organisations and research groups across Australia made submissions, but the government has not provided a summary of the feedback.
Experts generally welcomed the overall proactive approach: putting responsibility on online service providers to make the online environment safer for Australians.
Submissions also highlighted the importance of provisions to protect researchers, give them access to data about the platforms and people’s experience, and to allow them to use made-up “sock puppet” accounts to enable independent scrutiny of the online environment.
On the other hand, experts called for changes to make the duty more meaningful and effective. Some pointed out that enforcing it shouldn’t just fall to the eSafety Commissioner. Individuals should also be able to enforce the digital duty of care and seek remedies to harm, either individually or collectively.
Another concern was whether online service providers might overreact to the duty by demoting or removing public-interest content – such as education about illicit drug use and sexual health. Experts had a range of suggestions for what should count as “seriously harmful material and conduct”.
What does the bill look like now?
This is a large and complex piece of legislation. There are real challenges in reconciling the need for safer online environments with other interests, and in a way that’s flexible enough to adjust as the technologies, and how people use them, evolve.
In the path from exposure draft to bill, there are quite a few tweaks and changes to the language, which will need to be analysed for their impact.
The government has published an explanatory memorandum to help people understand the bill. It’s worth a read, especially where it discusses the impacts of algorithmic design.
