Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697638974405.pdf (Australia)
SUPPLEMENTARY SUBMISSION ON THE BILL FOR A NEW ONLINE SAFETY ACT Minderoo Tech & Policy Lab, UWA Law School This submission addresses three key issues which arose in the committee hearing on the Online Safety Bill on 5 March 2021, and which are core to the progress of this legislation.
It supplements a more extended submission we recently provided on the Bill.1 1 Putting adult cyber-abuse in context During the hearing, questions from Senators inquired as to how the new, world- first, civil offence of adult cyber-abuse would operate in practice, particularly in relation to circumstances involving domestic violence.

This line of questioning was incisive, because victims of domestic violence should be able to avail them- selves of the protections of the new Bill.
As presently drafted, however, the Bill falls short of providing this protection.

Our first recommendation is that this gap needs to be urgently addressed.

In response to Senators, the eSafety Commissioner and the Department both emphasised the two-pronged test, which would require a finding that there was an objective intention to cause harm, plus material that was relevantly objec- tionable.
The eSafety Commissioner added that the Bill’s new powers would be applied in a ‘very targeted’, even ‘surgical’ manner.

However, those answers did not clarify that the two-pronged test involves two separate elements.

While it is open to a fact-finder to consider all the relevant circumstances when enquiring into whether the material was objectionable, those matters are not relevant with respect to the assessment of an intention to cause harm.
The question of cyber-abuse in the context of domestic violence precisely demonstrates the problem.
In a case of domestic violence, a fact-finder would be entitled to consider the broader facts to establish whether a given post or tweet was relevantly objectionable, but if an offender’s methods are subtle and especially if they are personal – as they so often are in instances of cyber-abuse – we might plausibly imagine a scenario where an intention to cause harm is not clear on the face of the post or tweet under consideration.
This is plainly at odds with the intention of the Bill, and the test should be modified to avoid this diﬀiculty.

This could be achieved by amending ss7(1)(b) to include the same wording as ss7(1)(c) – ‘in all the circumstances’.

1Available here: https://www.communications.gov.au/sites/default/files/submissions/ osb-minderoo-tech-policy-lab_0.pdf.
1 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 40 - Supplementary Submission 2 Missed opportunity to enact world-leading pro- tections, including against harms to privacy The Minderoo Tech & Policy Lab supports the purpose of the Bill.

Indeed, we recognise that this is an area in which Australia has been a world leader, first in relation to children’s eSafety, now in relation to adults.
We urge the Government to persist in its commitment to leading the world in online safety.

However, the Bill as presently drafted does not address key components of online safety.

Harms to privacy, such as data harvesting, and harms to democracy and public health caused by rampant disinformation are absent from the Bill.
The Government has the opportunity to realise the promise that our interactions online ought to be subject to the same robust regulatory standards on safety as all other areas of public life.

There is a real risk that persisting with a regulatory regime premised largely on industry-drafted codes will miss this opportunity.
A number of witnesses, including Digital Rights Watch, Electronic Frontiers Australia, Reset Australia and Scarlet Alliance drew attention to shortcomings in digital platforms’ algorithmic content moderation processes, citing the ex- ample of Facebook’s recent removal of community, government and civil society pages in its purge of ‘news’ content.
We note that these examples demonstrate the practical problems with an industry-led code, and the need for genuine democratic engagement with and control of any such code.

We join with the Digital Rights Watch and Reset Australia in urging the Government to reconsider the appropriateness of industry-led drafting of codes.

Rather, the Bill should be amended to incorporate these codes into a more robust set of Basic Online Safety Expectations, which include standards for misinformation and harms to privacy.
Alternatively, the codes should be drafted by community consultation in the first instance, by establishing a community reference group akin to the Classification Board.

Higher standards of protection for privacy were considered in the Discus- sion Paper which preceded the Bill.

Witnesses’ evidence noted that difference between the draft Bill and the Discussion Paper has not been adequately ad- dressed, and that no explanation had been provided for these omissions.
The omissions include one of the key safety considerations set out in the Discussion Paper: ‘The Government is looking for industry to ensure that products mar- keted to children default to the highest level of privacy and safety at the outset, and to enable consumers to set and adjust these controls as they wish.’ Despite this, the Bill presently contains no specific requirements as to privacy safety standards, for children or adults.
No explanation has been given as to why the Bill does not enshrine requirements for ‘the highest levels of privacy and safety’ in products marketed to children.

Setting this requirement out clearly in the legislation would be a simple matter.
2 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 40 - Supplementary Submission 3 Interaction between takedown provisions and the law of contract Finally, we wish to offer a clarification about one matter which arose from questions from Senators during the hearing.

The Chair probed the issue of withdrawal of consent with respect to intimate images exchanged the context of a commercial transaction.
The Chair requested comment from the eSafety Commissioner on this matter.

We note that questions arising as to changes to consent in a commercial context will always have a separate set of contractual rights and obligations between the parties, with attendant remedies.

It would be inappropriate for the eSafety Commissioner to pre-empt any determination on those contractual rights and obligations.
In circumstances where a person claims that a subsequent removal of con- sent is a breach of contract, the usual contractual remedies will remain available to them.

The eSafety Commissioner declining to exercise take-down provi- sions would, in effect, require a pre-emptive finding that the contract had been breached and further that the appropriate remedy for the breach was specific performance, not damages.
Such a finding would be doubly inappropriate; first for pre-empting a court determination, and second for effectively granting a remedy which is almost never available in contracts for personal services.

Con- sequently, it is entirely appropriate for the eSafety Commissioner to exercise their powers under the proposed Bill, and leave consideration of contractual matters to the relevant State courts.
3 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 40 - Supplementary Submission