Online safety codes developed by the industry but rejected by the regulator have been redrafted and released for public consultation. It is the final chance for the industry to write its own rules for the Australian-first codes, with the regulator threatening to develop its own if significant changes aren’t made.
Clearer definitions of key terms and stronger commitments to proactively detect harmful online content are being offered by industry in the latest version of the codes, which have been worked on since September 2021. But industry is stressing it won’t always be allowed to detect the content.
A final public consultation period for the industry codes will run until March 23. The six industry groups designing the codes received a deadline extension of three weeks from the eSafety Commissioner Julie Inman Grant this month.
If Ms Inman Grant does not approve of the final drafts codes, her office will begin work on developing and registering its own, in consultation with the public. Her decision will be announced shortly after the submission deadline.
In line with the advice of Ms Inman Grant, references to ‘Australian end-users’ in the draft codes have been redefined to mean the same thing as ‘end-users in Australia’.
The online regulator previously argued that they “materially different” because the latter refers to geographical location as opposed to residency status. Both terms now refer to geographical location.
Also across all eight industry codes, the timeframe for submitting compliance reports has been shortened from six months to two months, in line with the eSafety Commissioner’s feedback.
A complete description of the changes to the draft codes can be found in the explanatory memorandum.
Shortly after the eSafety Commissioner rejected the draft online safety codes in February, she told a Senate Estimates hearing that the highlighted issues had already been “raised with them many times, so none of them are new”.
Throughout the codes, class 1A material relates to “child sexual exploitation material, pro-terror material, and extreme crime and violence material”, while class 1B material relates to “crime and violence material and drug-related material”.
The designated internet services (DIS) and relevant electronic services (RES) codes now include the concept of whether service providers are actually capable of reviewing or removing material on their services.
This is to provide clarity regarding the applicability of safety measures to different services. The revised DIS code notes that “not all providers will always have sufficient visibility of content or end-user activity to determine whether a breach has occurred”, and hence would not necessarily be capable of reviewing or removing material.
For example, it highlights that service providers would not necessarily be able to review, assess, and/or remove material from services that feature end-to-end encryption. End-user-managed services include online media hosting services like file or photo storage.
The revised RES code notes that in some instances, service providers are “legally not permitted to detect the relevant material”. Changes to the Relevant Electronic Services code has been the most significant.
The Social Media Services code now includes stronger commitments to proactively detect pro-terror material as well as investment in specific solutions to disrupt and deter and child-sexual abuse (CSAM) and pro-terror material.
The industry codes are being developed by six industry groups: the Australian Mobile Telecommunications Association, the Software Alliance, Communications Alliance, Consumer Electronics Supplier Association, the Digital Industry Group, and the Interactive Games and Entertainment Association.
A spokesperson for the steering group of the six associations said it is important that public consultation takes place before the draft codes are finally submitted.
“Consultation is an extremely important part of ensuring that diverse community and expert views are reflected in the final draft codes. We appreciate the many experts and community members who shared their views on the draft codes so far and hope we can receive further feedback during this second feedback period,” the spokesperson said.
Greens Senator David Shoebridge was previously critical of the six associations for not publicly releasing its previous iteration of the draft codes for consultation before submission to the eSafety Commissioner.
An initial public consultation process, which engaged with “over 200 expert stakeholders” and considered 88 submissions was undertaken by the industry associations, was undertaken between September and October 2022. This informed the rejected draft code which was submitted to the eSafety Commissioner in November 2022.
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