The Online Safety Act 2021 – what it is and why you should care

The Online Safety Act 2021 (Cth) (Act) came into effect on 23 January 2022. The Act aims to develop the existing regulatory framework and vest the eSafety Commissioner with greater investigative and enforcement powers.

Who is impacted by the Act?

The Act applies to all Australian end-users and providers of online platforms, including:

• social media services;

• relevant electronic services (instant messaging, online games, dating services);

• designated Internet services (websites);

• search engine services;

• app distribution services;

• hosting services; and

• internet carriage services.

Additionally, if you are a party that manufactures, supplies, maintains or installs equipment for the online platforms, you will be impacted by the Act.

What does the Act do?

The Act establishes several powers, schemes and guides including:

1. a set of basic online safety expectations;  

2. a cyber abuse scheme which has separate provisions for adults and for children;

3. an expanded Cyberbullying Scheme for children to capture harms that occur on services other than social media;

4. an updated Image-Based Abuse Scheme to address the sharing and threatened sharing of intimate images without the consent of the person;

5. new powers to the existing Online Content Scheme to regulate illegal and restricted content, regardless of where it’s hosted; and

6. expansive powers for the Commissioner:

• to require the removal of online material that might threaten, intimidate, harass, cause menace, offend, humiliate or is likely to cause serious harm;

• to obtain information (upon reasonable grounds that the details are relevant to the operation of the Act) from a social media, electronic, or internet service about the identity of and contact details for an end-user using anonymous accounts;

• to investigate and summon a person to attend before the Commissioner to produce documents or to answer questions under oath or affirmation; and

• to do all things the Commissioner deems necessary or convenient to be done for or in connection with the performance of its’ functions.

The Act also reduces the timeframe for online service providers to respond to a take-down notice from 48 to 24 hours. If the material is not removed, civil penalties (including fines up to $111,000 for individuals and $555,000 for companies) can be imposed on those who posted it and on the provider of the service where it appears. 

Social media services subject to online safety expectations

On 20 January 2022, the relevant Minister under section 45 of the Act issued the Online Safety (Basic Online Safety Expectations) Determination 2022 (Determination). The Determination outlines safety expectations for providers of social media services, relevant electronic services, and designated internet services. There are six categories of expectations, specifically:

1. expectations regarding safe use (Division 2);

2. expectations around certain material and activity (Division 3);

3. expectations around reports and complaints (Division 4);

4. expectations around accessibility of certain information (Division 5);

5. expectations on record keeping (Division 6); and

6. expectations on dealings with the Commissioner (Division 7).

7. Service providers may be required to report to the eSafety Commissioner their compliance with the expectations and failure to report is subject to civil penalties.

Takeaway

We suggest all online service businesses become familiar with the Act and ensure they are compliant with the new regime.

If you require advice on your obligations in the Act and how it may impact you or your business, please contact:

Paul Gray
Principal
T: 03 5225 5231 | M: 0414 195 886
E: pgray@ha.legal

Ryan Popovski
Lawyer
T: 03 5226 8572
E: rpopovski@ha.legal