President's message | September 2026
Digital duty of care
- Author: President Hugh de Kretser
We need a digital duty of care.
We’re at a major inflection point with new technology. It has been brewing for some time as online harms become increasingly exposed and understood. Massive data surveillance. Addictive features. Algorithmic recommender systems that profit from polarisation, spread misogyny, misinformation and hate and funnel people towards more extreme and harmful content. Manipulation of democracies and much more.
As the pace of change has rapidly accelerated, so has the urgency of the imperative to properly regulate it so that we can harness the benefits of new technology while avoiding the harms.
The Australian Human Rights Commission has consistently called for a legislative digital duty of care to protect Australians from online harm. The Australian Government committed to act in late 2024. Last week, it published an exposure draft of the bill for consultation. An exposure draft is an early public version of a bill. The process allows for improvements to be made before a bill is introduced and debated in Parliament.
We welcome the Government’s leadership on a digital duty of care and we welcome this process, which builds on earlier consultation.
A digital duty of care places greater responsibility on online services like social media platforms and search engines to identify, assess and mitigate foreseeable risks before harm occurs. The approach is an important shift. Current laws like negligence typically rely on individual people taking action after harm has occurred in unsafe online environments. There are major evidentiary, financial and legal barriers to this kind of legal action by people against well-resourced global tech giants.
A digital duty of care aims to ensure that tech companies build safety into the design of their services from the outset. This preventative focus is vital. The bill requires platforms to address risks before they result in harm, supported by regulatory oversight and enforcement.
It’s critical to get the details of this bill right. Human rights standards provide a compass to guide the drafting and ensure that efforts to protect people from harm do not breach free speech and other rights. There are risks that laws like this result in the over-removal of lawful content or limiting legitimate public debate and there are ways to mitigate these risks. For example, the bill currently gives the Minister very broad delegated powers, including to expand the categories of harm by making legislative instruments. While these instruments can be disallowed by Parliament, an alternative way to protect free speech is to require any changes to the harm categories to be made to the primary legislation which would require full Parliamentary scrutiny and approval.
One of the critical features of the bill is creating powers to require certain services to provide ‘user empowerment tools’. We support calls to require online services to design their products so that people have greater choice and control, such as opt-in requirements for algorithmic recommender systems. Unfortunately, the bill leaves the detail on how this will be achieved to delegated Ministerial powers.
Finally, we need to ensure that tech companies comply with the duty. There are good transparency provisions in the bill including that require services to undertake and document regular risk assessments. For enforcement, the bill gives powers to the eSafety Commissioner to enforce compliance including through civil penalty provisions. Consideration should also be given to strengthening compliance by empowering people to take legal action if they suffer harm because a tech company breaches the duty.
Australia has an opportunity to develop a world-leading framework that promotes safety online. If designed carefully, a Digital Duty of Care can help prevent harm before it occurs, provide stronger accountability for powerful tech companies and contribute to a digital environment where people’s human rights are protected and promoted.
Hugh de Kretser
President
