Global Partners Digital (GPD) and Digital Rights Watch (DRW) have submitted a joint response to the Australian government’s exposure draft of the Online Safety (Basic Online Safety Expectations) Determination 2021.
Building on the recently passed Online Safety Act 2021, this instrument would establish a range of additional expectations for online service providers—obliging them to take proactive and preventative steps to protect Australians from abusive conduct and harmful content online.
We welcome the opportunity to provide feedback on the exposure draft, and recognise the legitimate desire of the Australian government to ensure the safety of Australian end users. Based on our analysis, however, we believe that particular aspects of the proposals, if taken forward in their current form, may pose risks to individuals’ rights to freedom of expression and privacy online and could be inconsistent with Australia’s international human rights obligations.
In our joint response, we relay our concerns and make a series of recommendations on how the proposals could be revised to mitigate these risks. We believe these considerations and recommendations, if incorporated into the final instrument, will help safeguard freedom of expression and privacy online.
Our recommendations to the government include to:
- Avoid expectations which compel or incentivise services to use automated processes to proactively monitor and remove harmful content, and mandate rigorous testing, human oversight, adequate appeals mechanisms and human rights impact assessments wherever such processes are employed;
- Require the eSafety Commissioner, the country’s independent regulator for online safety, to provide guidance on the testing of automated tools prior to roll-out through expert consultation and trials;
- Remove the proposed expectation to detect and address harmful material on encrypted services, and only include expectations which do not undermine encryption or pose risks to individuals’ right to communicate privately, such as having providers focus on strengthening user-reporting systems, encouraging victims to report abuse, and improving response times; and
- Remove the proposed expectation regarding anonymous accounts, or provide alternative reasonable steps to satisfy this expectation which do not undermine anonymity or privacy online—such as requiring services to instead increase user controls for interaction with anonymous accounts.
The comments received will be used to inform changes to the Draft Online Safety (Basic Online Safety Expectations) Determination 2021. We’ll be following this process closely—sign up to our monthly Digest for regular updates and analysis.