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The eSafety Commissioner has opened consultations on a range of new measures to crackdown on social media firms and other platforms to block underage individuals from accessing online pornography and material classified to be R18+ or higher.
The eSafety Commissioner is ramping up its powers following the passage through Parliament of the Online Safety Act earlier this year, with the new scheme to come into effect from 2022.
The Act requires an update to the restricted access system declaration, which requires content deemed to be R18+ or higher to be behind a restricted access system so it cannot be accessed by children.
This update will broaden its scope to cover a wide range of online platforms, email and messaging services and Australian hosting service providers.
Julie Inman Grant: Australian eSafety Commissioner
The Commissioner is also looking at a potential age verification system targeted specifically at preventing anyone aged under 18 from accessing pornography, with a new roadmap to be handed to the government next year.
The roadmap will look at technological approaches for online age verification, and comes just months after the federal government agreed in principle to use its digital identity scheme to verify the ages of individuals before they access online pornographic or gambling sites, but there will be no action on this until 2023.
Under the now-passed Online Safety Act, the Commissioner will have the power to issue take-down notices to a range of services in relation to harmful online content. For other content, the Commissioner will be able to issue a remedial notice, and the tech firm will have to either remove it or ensure it is subject to a restricted access system.
If this meets the minimum standards set out in the Restricted Access System (RAS) declaration, then the material does not have to be removed.
Digital Rights Watch program lead Samantha Floreani said careful and measured consideration of these complex issues is required.
“We want to see an evidence-based and harm reduction approach to these issues, not heavy-handed restrictions and removal of content based on a moral standing. The Online Safety Act is a clear example of what happens when regulation focuses too much on content over context,” Ms Floreani told InnovationAus.
“We hope that through these consultations, albeit rushed, the eSafety Commissioner will meaningfully engage with the community in order to develop policies which protect people, rather than morals.”
The discussion paper outlines how the RAS will be updated to expand the scope of services it applies to, including social media firms, email companies, instant messaging services and online games.
It will also apply to Australian hosting service providers. Submissions on the new RAS will close on 12 September.
The new age verification requirements will not be limited to material hosted or provided in Australia, but will cover “commercially produced and user-generated sexually explicit material” being accessed by Australians. It is also not limited to material that falls under the remit of the RAS.
The Commissioner will present an online age verification roadmap to the government next year.
“Inappropriate content like violent or extreme pornography that young children may encounter by accident can be distressing and even harmful, while for older children who may seek out this material, the risk is that it will give them unrealistic and potentially damaging ideas about what intimate relationships should look like,” eSafety Commissioner Julie Inman Grant said.
“Age verification, as overseas experience has shown, is a complex issue, so it is important that all sections of the community are able to be heard. We will take a considered, evidence-based approach that takes into account feedback from industry, stakeholders, experts and the public, to find workable solutions.”
Ms Floreani said the proposal to use digital identification and facial recognition for age verification is particularly troubling.
“We are concerned that the technological approaches to age verification will present an unreasonable invasion into people’s privacy, as well as possibly creating significant security risks,” she said.
“It was only a few years ago that the Department of Home Affairs suggested the use of facial recognition technology for age verification to access online pornography. The proposal to use such an invasive and error-riddled technology to regulate access to such sensitive content is alarming.”
Last week the eSafety Commissioner also opened consultations on the Basic Online Safety Expectations (BOSE) for large social media firms like Facebook, outlining core and additional expectations around the cyberbullying of children and cyber-abuse of adults.
Following concerns that the introduction and passage of the Online Safety Act was rushed, running several important consultations at the same time and for only a month is troubling, Ms Floreani said.
“We need well thought out, considered regulation and policy to deal with the rise in hate speech, online abuse and bullying. But without meaningful public consultation, the balance won’t be right,” she said.
“The result of the rushed consultation process is legislation that contains broad, ill-defined powers for the Commissioner, and lacks the kind of nuance we need to ensure we don’t end up creating harm while trying to prevent it.
“Running simultaneous public consultations on both the BOSE as well as the Restricted Access System, both due within two months, continues the trend of unreasonably fast turnaround times which makes it exceptionally challenging for concerned individuals and organisations to meaningfully participate.
“There is also no space given to engagement beyond written submissions, no roundtables or workshops with the community.”
The government will move to amend the Online Safety Bill to provide more transparency and reviews after the controversial legislation was passed by the lower house with support from the Opposition.
The Online Safety Bill hands new powers to the eSafety Commissioner, extending the online content takedown scheme to Australian adults, and allows for the issuing of removal notices for content deemed to be rated R18+ or higher, and to order the site or app to be blocked if it refuses.
A set of basic safety expectations will also be outlined for Big Tech as part of the legislation.
The legislation was given the green light by a Senate committee on Friday, and was passed by the House of Representatives on Tuesday afternoon.
Online safety: Labor will support governments controversial bill, albeit with amendments
Labor supported the legislation in the lower house but is expecting a number of government amendments in the Senate to address the myriad concerns around the bill.
Shadow cybersecurity spokesman Tim Watts acknowledged concerns about the bill, including that it vests significant power and discretion with the eSafety Commissioner, its lack of transparency about how this power would be used, its potential impact on the sex industry and for it to be used to remove content that is in the public interest.
The government has been unable to address these stakeholder concerns, Mr Watts said
“The safety of Australians online is of paramount importance and Labor will work with the government to iron out concerns with these bills in time for debate in the senate,” Mr Watts said in Parliament.
“But in the meantime, Labor will not oppose these bills and we support passage through this place on the understanding that government amendments are forthcoming,” he said.
“Labor considers that the government must consider further amendments to clarify the bill in terms of its scope and to strengthen due process, appeals, oversight and transparency requirements given the important free speech and digital rights considerations it engages.”
The government amendments are expected to include increased reporting from the eSafety Commissioner on how the new powers are utilised, and a new internal review mechanism regarding these decisions.
On Tuesday morning the Greens announced that they would be voting against the legislation, calling for it to be withdrawn and redrafted as it is “poorly drafted and could lead to widespread, unintended consequences”.
“This bill would make the eSafety Commissioner the sole arbiter of internet content in Australia. It creates extraordinary powers for any one person to hold, let alone an unelected bureaucrat,” Greens senator and digital rights spokesperson Nick McKim said.
“It also fails to provide for timely reviews or appeals of decisions made by the eSafety Commissioner. We are concerned that people opposed to sex work, pornography and sexual health for LGBTIQ+ people could abuse the complaints process to seek to have lawful online content removed. Public interest news that involves violent imagery, such as footage of police violence, could also be taken down.”
While the Online Safety Bill has been discussed by the government for several years, it recently only gave stakeholders four working days to make submissions to the senate inquiry into the final piece of legislation, which was introduced to Parliament just a week after nearly 400 submissions were received on it.
This short timeframe has “undermined confidence” in the process, Mr Watts said.
“It is disappointing that the government has proved incapable of conducting a process that satisfies stakeholders in terms of process and substance,” he said.
There is also a “worrying lack of conceptual and operational clarity” around how the new powers will work, with Mr Watts pointing to eSafety Commissioner Julie Inman Grant recently saying that the “sausage” is still being made.
“Finding the balance between free speech and protections against certain kinds of speech is a complex endeavour and we are concerned that this bill represents a significant increase in the eSafety Commissioner’s discretion to remove material without commensurate checks and balances,” Mr Watts said.
“It doesn’t take much imagination to foresee a situation where, in the hands of an overzealous eSafety Commissioner, legitimate speech could be silenced – whether of racial or religious minorities expressing outrage at racist speech, or of women expressing outrage at sexual violence in the workplace.”
The Online Safety Bill “sausage” is still being made, according to the eSafety Commissioner, with the detail about how sweeping new content and site blocking powers will be implemented still uncertain despite a rush to pass the legislation.
The Online Safety Bill is currently the subject of a whirlwind senate inquiry after it was introduced to Parliament earlier this year.
After giving only three working days for submissions to be made, the committee is expected to hand down its final report on Friday, just a week after it held its one and only public hearing.
Julie Inman-Grant: Australian eSafety Commissioner
This was after the committee asked for one extra day to deliver its final report, originally due on Thursday.
At the hearing, eSafety Commissioner Julie Inman Grant addressed the numerous concerns about the proposed new powers and attempted to justify them.
The bill extends the eSafety Commissioner’s content takedown scheme to Australian adults, allowing the office to issue removal notices for content deemed to be rated as R18+ or higher, and then orders that the site or app be blocked if it does not comply.
The bill also gives the commissioner the power to order internet service providers to block domain names, URLs and IP addresses, and for the government to set “basic online safety expectations” for tech companies.
“Our goal is to make the internet a safer, more civil place for Australians to enjoy and we believe this bill is an important next step in achieving this ambitious and worthy goal,” Ms Inman Grant told the hearing.
“We’re privileged to be leading the globe as the world’s online safety regulator, and we welcome the opportunity to provide even greater levels of online protection to our citizens.”
The legislation has led to significant concerns centred on censorship and the potential blocking of industries such as sex work, along with concerns around the centralisation of significant power with the eSafety Commissioner.
Despite the legislation currently being in Parliament, and likely to pass within weeks, Ms Inman Grant said her office and the government were still working through how the powers would be implemented and used, with much of this to be outlined in subsequent regulatory guidance.
Labor senators raised concerns that they are required to vote on the legislation before knowing how it is to operate and deal with issues such as frivolous complaints, and how complaints will be triaged.
“These are all things that we are thinking about, we are actively planning for. We’re thinking about the staffing profiles we need. We’re thinking through what’s in, what’s out, what would our standard operating procedures look like and what is the staffing profile that we need to have,” Ms Inman Grant said.
“We’re basically looking at scenarios and other experiences that we’ve had. We’re also setting up a regulatory action committee so that we have checks and balances within our organisation, so when decisions are made we have legal people who have speciality and technical expertise as well as the investigators, particularly where there are grey or edge cases.
“So, this is the sausage being made right now, if you will.”
Ms Inman Grant said the new powers would not make her office a “quasi-law enforcement agency”.
“Where platforms don’t enforce rules in removing abusive accounts, we will need to seek from them basic subscriber information for the purposes of issuing fines or remedial notices. This does not make us a quasi-judicial agency or law enforcement agency,” she said.
“Our powers are purely civil, but this does give us the tools for both deterrence and enforcement where the big tech agencies have continued to fail to halt the abuse.”
In a submission to the inquiry, the Australian Lawyers Alliance said the bill should be scrapped entirely, saying it “invests excessive discretionary power in the eSafety Commissioner”.
Digital Rights Watch also said that too much power is being handed to the Commissioner.
“There seems to be a lot of political willingness to trust the eSafety Commissioner to act in good faith and stick to the intention of the legislation rather than explicitly define and limit the powers in the bill,” the organisation said.
“This is a naive trust in the cult of personality and risks that under any administration these powers will be misinterpreted and used to bully and marginalise individuals and movements.”
