The Australian Government has announced that it will soon be introducing legislation to create a digital duty of care under the Online Safety Act 2021 (Cth) (Act) in response to findings from an independent Statutory Review of the Online Safety Act 2021 (Review). The Honourable Anika Wells MP announced that “big tech” companies will soon have a responsibility to proactively take steps to create a safer online environment.[1]
The rationale for a digital duty of care
The rationale for a digital duty of care is derived from the Review, which found that the existing Act primarily works reactively, facilitating complaints to eSafety and the removal of harmful content.[2] The Review states that this focus on content removal has created a regulatory gap within the Australian online safety framework.[3] This was supported by the Honourable Anika Wells MP as she stated that:
“A digital duty of care will force the online industry to take stronger action to keep users safe when they log on rather than the reactive system that exists now.”[4]
It is expected that this duty will complement the social media minimum age amendments which are coming into effect on 10 December 2025.
The proposed duty
The proposed digital duty of care will require services, particularly in “big tech“, to take reasonable steps to prevent foreseeable online harms to Australians.[5] This is an action to shift the onus from the harmed individual to digital platforms facilitating the harm.[6] The announcement claims that:
“A digital duty of care will recognise that big tech companies have the technology, resources and responsibility to manage harms before they occur – rather than solely relying on individuals to report harmful material post exposure”.
Based on the content of the Review, it is likely that this duty will be supported by risk assessments, transparency obligations, and strict penalties.[7] Further, the announcement states that the duty will “work to restrict access to nudification and undetectable stalking services that cause serious harm“.
The Australian Government’s next steps
The Australian Government Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts has opened an online survey so that individuals can voice their opinion on the design of the “digital duty of care”.[8] This will close on 7 December 2025, informing the development of a Bill to amend the Act.
Links and further references
Legislation
Other Links
Australian Government Department of Infrastructure, Transport, Regional Development, Communications, Sport, and the Arts, Digital Duty of Care
Statutory Review of the Online Safety Act 2021
The Hon Anika Wells, Government continues commitment to online safety
Further information about internet law
If you need advice on technology law and your businesses’ compliance with the Online Safety Act, contact us for a confidential and obligation‑free discussion:
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au
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.
[1] The Hon Anika Wells, Government continues commitment to online safety.
[2] The Hon Anika Wells, Government continues commitment to online safety.
[3] Statutory Review of the Online Safety Act 2021 p 50.
[4] The Hon Anika Wells, Government continues commitment to online safety.
[5] Australian Government Department of Infrastructure, Transport, Regional Development, Communications, Sport, and the Arts, Digital Duty of Care.
[6] Australian Government Department of Infrastructure, Transport, Regional Development, Communications, Sport, and the Arts, Digital Duty of Care.
[7] Statutory Review of the Online Safety Act 2021.
[8] Australian Government Department of Infrastructure, Transport, Regional Development, Communications, Sport, and the Arts, Digital Duty of Care.
Related insights about internet law
-
Overview of the Ransomware Payments Bill 2021 (Cth)
Australian government proposed the Ransomware Payments Bill 2021 (Cth) (Bill) to enforce mandatory reporting of ransomware payments. Penalties of up to $110,000 for non-compliance.
-
Hermès sues artist over NFT “Birkin” bags
Explore the implications of virtual artworks created with the help of non-fungible tokens (NFTs) and how this has caused a legal battle between a renowned fashion house and an American artist. Learn more about the copyright and trade mark infringement issues, and the implications of this case for the future of digital art.
-
The new Social Media (Anti-Trolling) Bill 2021
The Australian Government has introduced a Social Media (Anti-Trolling) Bill 2021 to protect Australians who use social media. Find out what measures are included in the bill and how it could help protect you from online trolls.
-
7-Eleven customer survey: implied consent?
The Office of the Australian Information Commissioner found 7-Eleven Stores Pty Ltd are in breach of the Australian Privacy Principles (APP’s). Learn more about the findings, implications, and how businesses can comply with the APP’s.
-
Can social media chat logs be documents in Federal Court?
The Federal Court has addressed the hearsay rule exception of using a log from an instant messaging platform to prove the identity of the sender, date, time of the message, and contents of the statement.
-
Online business promotion and liability for third-party comments
Businesses hosting online discussion forums must be aware of the potential for hefty damages claims if they fail to remove defamatory comments made by third parties. Find out more about the implications of the High Court case of Australian New Channel Pty Ltd v Voller [2021] HCA 27.
-
The Australian Cyber Law Map – overview
The Australian Cyber Law Map provides clarity on ever-changing legal landscape, covering commercial enterprises, cyber offences, infrastructure, international law, national security and personal rights. A source for understanding laws and providing safety/security in the digital age.
-
Explaining Australia’s Media Bargaining Code
The News Media Bargaining Code (NMBC) is quickly moving through Parliament and looks likely to become law. It requires digital platforms, such as Facebook and Google, to negotiate remuneration with News Companies for providing their media services. Non-compliance could result in hefty civil penalties.
-
Kogan fined $310k for Spam Act breaches
Kogan Australia Pty Ltd has been issued a hefty penalty and an enforceable undertaking for not complying with the Spam Act 2003 (Cth). Find out what this means for your business and what the consequences are for failing to comply.
