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
-
A bet or a game? The Lottoland decision
The Supreme Court of New South Wales has ruled in favour of Lottoland Australia Pty Ltd, affirming that its disputed products fall under the exception of an Excluded Wagering Service as defined by the Interactive Gambling Act 2001 (Cth), clarifying the distinction between ‘bets’ and ‘games’.
-
Abhorrent violent content prohibited
Organizations hosting abhorrent violent material, such as terrorism, murder, torture, rape and kidnapping, now face hefty fines under the Criminal Code Amendment Act 2019 (Cth), up to 50,000 penalty units or 10% of annual turnover.
-
Domain name disputes – the case of eazyjet.com
Learn more about domain name disputes and the evidence required to establish confusion, rights, and bad faith. Internet Corporation for Assigned Names and Numbers (ICANN) and World Intellectual Property Organization (WIPO) provide legal elements and remedies, and the implications of failing to respond to a complaint.
-
EU General Data Protection Regulations (GDPR) – How to comply
The General Data Protection Regulation (GDPR) applies to Australian entities processing personal data of European Union (EU) citizens/residents. It outlines principles, notification obligations, penalties for non-compliance, and requirements for cross-border data transfers.
-
Legal challenges arising from data loss
Organisations must protect confidential data from external and internal threats. Learn steps to secure data, potential data breach implications, and how a data breach notification bill may require affected entities to notify consumers.
-
Data Breach Bill 2016 – key data security considerations
The Privacy Amendment (Notifiable Data Breaches) Bill 2016 has been passed, making notification of data breaches mandatory from 23 February 2018. Find out how this could affect you and what measures you can take to protect your data.
-
Legal risks in the in-app purchase model
Software developers and publishers are offering users the chance to make In-App Purchases within their software, but there are legal risks involved. Learn how to protect yourself and your business by understanding the requirements of distribution platforms and Australian consumer law.
-
Letting go of employees threatening to go to the media
When employees leak confidential information or threaten to go to the media, employers can face serious consequences. Find out what the Fair Work Commission says about this issue and what options employers have to protect themselves.
-
What exactly is an advertising sign-off?
Injunctions are Court orders that can restrain almost any conduct. Prohibitory, Mandatory, and Ex Parte injunctions can be sought if serious question to be tried, urgency, damages would not suffice, and the balance of convenience favours the applicant.
