The Global Network Initiative (GNI) welcomes the opportunity to provide input on the Australian Government’s statutory review of the Online Safety Act 2021.
GNI appreciates and supports the Australian Government’s intention to keep pace with the evolving digital environment and maintain parallels with other global regulatory regimes. During the drafting of the Online Safety Act in 2021, GNI raised concerns with the then Australian Minister for Communications about the categories of regulated services under the Online Safety Act being overly broad, which risked affecting certain types of services less proportionately than others. To avoid this, GNI suggests replacing the blanket regulatory framework with a more systems-and-processes approach, and use risk and impact as key metrics for determining regulatory approaches to harm.
The application of 24 hour content removal orders are another serious point of concern. As noted in the Content Regulation and Human Rights Policy Brief, the short window for takedown forces service providers to rapidly adjudicate the legality of third party content on their services, often resulting in over-removal. Restrictions on children’s access to content should be targeted and respond to public interest objectives. The Government should consult separately on these. It bears noting that, following the implementation of the Act, several laws have reproduced the stringent 24-hour takedown windows in other countries, including authoritarian jurisdictions where freedom of expression was already under threat.
The Government should be careful to ensure that any requirements it may consider imposing are justifiable under international human rights law, meaning that they consist of the least restrictive means of achieving a legitimate purpose and they are proportionate and appropriate to such purpose. The government should also take care to ensure that its approach respects the principle of comity and avoids unnecessarily impacting or creating potential conflicts of law regarding the rights of users not located in Australia. Service restriction and the regulation of individual pieces of content are highly risky, and the Government should exercise extreme caution against any form of extraterritorial application, especially for larger and global platforms that are affected disproportionately under such laws. GNI instead encourages the Government to focus on approaches to ensure that service providers have the right systems and processes in place to meet their obligations.