Australian Cyber Law Map

Online Content and Services

19 December 2022 - 14:40 | Version 10 | JenniferWestmorland

The provision of online content and services is regulated by the Broadcasting Services Act 1992 (Cth) and relevant industry codes.
The Enhancing Online Safety Act 2015 (Cth) was introduced to create an eSafety Commissioner and protect persons from harm caused by online content or services.
More recently, the Online Safety Bill 2021 (Cth) has been introduced and is currently before the Commonwealth Senate.

The Electoral and Other Legislation Amendment Act 2017 (Cth) amended the Broadcasting Services Act 1992 (Cth) to ensure consistency in broadcasting when political parties engage with voters through various online platforms.
In February 2021, the Online Safety Bill 2021 (Cth) was introduced into the Commonwealth House of Representatives to create a modern, fit for purpose regulatory framework that builds on the strengths of the existing legislative scheme for online safety.
- See Marilyn McMahon and Vicki Huang, 'The Online Safety Bill 2020: Protecting adult victims of cyber abuse' (2020) 1 Cyber Today 32
- See also Monica Biddington, 'Regulation of Australian online content: Cybersafety and Harm', APH Parliamentary Library Briefing Book (July 2019)

The Broadcasting Services Act 1992 (Cth) seeks to promote competition, new technology and improved services amongst broadcasting services (namely television, radio and online content).
Schedule 5 of the Act seeks to regulate online services by:
- authorising the eSafety Commissioner to request internet service providers to deal with any 'prohibited internet content' hosted outside Australia in accordance with industry standards or, if appropriate, refer the content to the police;
- permitting the development of industry codes or giving the eSafety Commissioner power to make an industry standard if no code exists or is deficient;
- subject to specific limitation of liability provisions for internet service providers that provide content on behalf of another ISP and are unaware of that content, making it an offence for an online provider to not comply with an industry code or standard.
Schedule 7 of the Act seeks to regulate content services (i.e. content accessible via internet or mobile services within or provided from Australia) by establishing a complaints and enforcement system relating to prohibited content (e.g. child sexual abuse material).
Schedule 8 of the Act seeks to regulate online content services, namely gambling promotional content provided on an online content service in conjunction with live sport.

The Enhancing Online Safety Act 2015 (Cth) creates an independent statutory office known as the eSafety Commissioner, responsible for promoting and enhancing online safety.
Under Part X of the Act, the eSafety Commissioner can investigate and act on complaints about serious cyberbullying material targeted at an Australian child. The material may be removed from social media services under a two-tiered system (Tier 1 services may opt in; Tier 2 services are legally bound to comply).
Part X of the Act establishes a civil penalties scheme regarding the sharing of intimate images or videos on online platforms. The scheme includes both action against the person responsible for image-based abuse and enforceable removal notices to social media services or websites.

Under Part 10.6 Div 474 Subdivision H of the Criminal Code (Cth), it is an offence for a hosting service to host 'abhorrent violent material' (AVM) and not expeditiously cease hosting the material. Abhorrent violent material means audio and/or visual material created by a perpetrator or accomplice that records or streams a terrorist act leading to serious injury or death, murder or attempted murder, torture, rape or kidnapping involving violence or the threat of violence.
The eSafety Commissioner may issue an AVM notice to a website or its hosting service if they are providing access to AVM. Failure to remove access to the material is a criminal offence.

Under section 581 of the Telecommunications Act 1997 (Cth), the eSafety Commissioner may give written directions to a carrier or a service provider in connection with any of the Commissioner's functions and powers.