Online Safety Act 2021

Overview

The Online Safety Act 2021 was enacted to address the growing concerns about the safety of Australians online. It was introduced to improve the online safety environment by reducing exposure to harmful content, particularly for children and young adults. The Act establishes the role of the eSafety Commissioner, who is responsible for promoting online safety, administering a complaints system for cyber-bullying and cyber-abuse material, and overseeing the compliance of online services with safety standards. The Act also sets out provisions for the removal of harmful content, the development and enforcement of industry codes and standards, and mechanisms for reporting and investigating online safety issues. The primary objective is to ensure a safer online experience for Australians by creating a regulatory framework that effectively manages and mitigates online risks. The Act was enacted by the Parliament of Australia and applies across the nation, including external territories.

Scope and Application

The Online Safety Act 2021 is a Commonwealth statute aimed at enhancing online safety for Australians. The Act applies to acts, omissions, matters, and things both within and outside Australia, extending its jurisdiction to external Territories. It establishes the eSafety Commissioner, who is tasked with promoting online safety, administering a complaints system for cyber-bullying and cyber-abuse material, and managing the online content scheme. The Act also includes provisions for setting basic online safety expectations for social media services, relevant electronic services, and designated internet services. It sets forth a framework for addressing cyber-bullying material targeting Australian children, cyber-abuse material targeting Australian adults, non-consensual sharing of intimate images, and material depicting abhorrent violent conduct. Furthermore, the Act includes mechanisms for the eSafety Commissioner to issue notices to providers and users of social media services, relevant electronic services, designated internet services, and hosting services to remove or block certain types of content. The Act also provides for the imposition of civil penalties for non-compliance and establishes the Online Safety Special Account to fund related activities. Importantly, the Act does not limit the operation of State and Territory laws that are capable of operating concurrently with it and respects the constitutional doctrine of implied freedom of political communication. The Act’s scope is comprehensive, covering a wide range of entities, including individuals, corporations, and service providers, and it encompasses various forms of online content and interactions.

Key Provisions

• The Online Safety Act 2021, as compiled on 11 December 2024, sets forth a comprehensive framework for online safety in Australia, focusing on protecting Australians, particularly children, from harmful online content and activities. The Act establishes the role of the eSafety Commissioner, who is tasked with promoting online safety, administering complaints systems for cyber-bullying, cyber-abuse, and non-consensual sharing of intimate images, and overseeing the online content scheme. The Act also mandates basic online safety expectations for various services, and imposes obligations on providers of social media, electronic, and internet services to ensure safe online environments. Key sections include those defining cyber-bullying and cyber-abuse material, procedures for complaints and investigations, and requirements for the removal of harmful content.
• The Act imposes several obligations on parties and entities it governs. For instance, providers of social media services, relevant electronic services, and designated internet services must take reasonable steps to minimise the provision of harmful material, such as cyber-bullying, cyber-abuse, and non-consensual intimate images, and ensure their services are safe for end-users. They are also required to implement measures to prevent access by children to certain restricted material and to maintain clear reporting mechanisms for users. Additionally, providers of age-restricted social media platforms must take reasonable steps to prevent children under a certain age from creating accounts. These obligations are enforced through compliance notices, periodic and non-periodic reporting requirements, and the issuance of formal warnings or civil penalties for non-compliance.
• Breaches of the Act's provisions can lead to significant consequences, including civil penalties. For example, a civil penalty of up to 500 penalty units may be imposed for failure to comply with notices regarding the removal of cyber-bullying material, non-periodic reporting, or other specified obligations. More severe penalties, up to 30,000 penalty units, apply to breaches concerning the non-consensual sharing of intimate images and failure to take reasonable steps to prevent age-restricted users from having accounts on certain social media platforms. Furthermore, the Act provides for the issuance of infringement notices, enforceable undertakings, and injunctions as means of enforcement. In cases where the continued operation of a service represents a significant community safety risk, the Federal Court may order the cessation of service provision. The Act also outlines provisions for the referral of matters to law enforcement agencies and the protection of individuals involved in reporting or investigating online safety issues from civil and criminal liabilities.
• In summary, the Online Safety Act 2021 establishes a robust legal framework to safeguard Australians online. It defines clear expectations and obligations for service providers, sets forth detailed procedures for the handling of complaints and the removal of harmful content, and provides for significant penalties for non-compliance. The Act also ensures that the eSafety Commissioner has the necessary powers and resources to effectively carry out their mandate, including the ability to obtain information, exercise investigative powers, and collaborate with other authorities. Through these provisions, the Act aims to create a safer online environment for all Australians.

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