Online Safety

The Australian Human Rights Commission ( Commission ) has provided a submission to the statutory review of the Online Safety Act 2021 (Cth) ( OS Act ).

The Commission recognises the importance of the Office of the eSafety Commissioner's ( eSafety ) role under the OS Act as Australia's independent regulator for online safety. As the human rights of many people are impacted in online spaces, the role of eSafety is more important than ever.

Human rights

While many rights may be affected in online spaces, the human right to freedom of expression requires specific consideration.

Consideration of freedom of expression online is especially important because digital platforms provide opportunities for realising the benefits of free speech.

The same rights that people have offline must also be protected online. The right to free speech online is not absolute, and its exercise ‘carries with it special duties and responsibilities'.

However, there may be legitimate discussion on controversial topics which reasonable minds may differ on – the removal of such content may be an impermissible restriction of free speech.

Children

Children now grow up engaging with online environments which pose both risks and opportunities for children to realise their rights.

The best interests of children should be the priority requirement for all internet-based businesses. This would include strong default privacy settings and human rights by design requirements. Online safety measures should be developed with the best interests of the child being a primary consideration in all actions concerning them.

A best interests approach may require implementing clear boundaries to prevent practices that both infringe upon children's rights and are contrary to their best interests.

Penalties

Civil penalties within the OS Act have not kept pace with global regulatory regimes.

Other Australian regimes regulating digital environments have significantly higher penalties, with serious breaches under the Privacy Act 1988 (Cth) resulting in penalties of up to $50,000,000 for a body corporate.

Civil penalties are intended to serve as a deterrent against legislative noncompliance. Due to the significant earnings of platforms, current penalties under the OS Act are insufficient.

Recommendations

The Commission's submission makes 24 recommendations on from addressing racial hatred to the use of biometrics in age verification processes. To learn more about these recommendations, please read the submission.