AI businesses should have duty of care

In a recent interview with InnovationAus.com, Victorian Senator Michelle Ananda-Rajah (Senator) emphasised the need to adopt digital duty of care laws for artificial intelligence (AI) companies.^[1]  As a representative of the ALP and former AI start-up founder, the Senator calls for the proposed digital duty of care to apply to AI companies.  If implemented, the duty would place an obligation on AI companies to take reasonable steps to protect Australians from foreseeable harm resulting from the use of their platforms.

The proposed digital duty of care

Following a Statutory Review of the Online Safety Act 2021 (Statutory Review) from October 2024, the Australian Government has committed to legislating a “digital duty of care” which will require online services to take reasonable steps to prevent foreseeable harm.^[2]  It is likely that the reform will amend the existing Online Safety Act 2021 (Cth) (Online Safety Act).

Proposed reform and justification

The Senator has proposed a “rights-based approach” to online safety laws, with liability imposed on AI companies whose  platforms and services can cause harm to end users.  The Senator stated that AI platforms should be at least partially included under the proposed digital duty of care.  She argued that “tech companies have squandered their social license to operate unregulated”.

The reason for putting regulatory pressure on AI platforms is because they can threaten the reliability and accuracy of information.

Harm inflicted by AI platforms

The Statutory Review noted that a digital duty of care is necessary due to the distribution by online services of harmful content, whether intentional or unintentional.  A Service is defined under section 5 of the Online Safety Act as including a website.  A Provider is defined under the same section as any “provider of a social media service, age-restricted social media platform, relevant electronic service, designated internet service, or app distribution service”.^[3]

Aside from online services such as websites and social media platforms, generative AI has been known to inflict similar harm. A recent example illustrating these issues is Gavalas v Google LLC (Case No 5:26-cv-01849), a proceeding filed in the United States District Court for the Northern District of California on 4 March 2026. The “wrongful death” proceedings are being brought against Google by the father of a man who committed suicide after Gemini, an AI chatbot, generated responses telling him to “kill themselves” and encouraging other users to attempt “mass casualty attacks”. In an event like this, a digital statutory duty of care would place liability on the AI platform to ensure that its systems do not encourage such behaviour.

Given the uncertain nature of AI and the lack of transparency when it comes to algorithms and training data, regulatory pressures have risen.

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[1] AI firms should face digital duty of care, senator says, David Allan – 4 March 2026.

[2] Statutory Review of the Online Safety Act 2021– October 2024, page 7.

[3] Online Safety Act 2021 (Cth) s 5.

Links and further references

Legislation

Online Safety Act 2021 (Cth)

Further information

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Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances

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