Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697635823618.pdf (Australia)
Submission to Senate Environment & Communications Committee on a new Online Safety Act 3 MARCH 2021 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Executive summary Facebook supports the enhancement of online safety laws in Australia, as part of our ongoing commitment to ensuring the safety of Australians online.
We support new regulatory frameworks for online content that ensure companies are making decisions about online speech in a way that minimises harm but also respects the fundamental right to free expression.

We recognise our responsibility to protect the safety of people who use Facebook’s services - especially the safety of young people.

It’s essential to our business: Australians and other people around the world will only continue to use our platform if they feel welcome and safe.
Industry, government and the community all have a role to play in working towards online safety.

To uphold our responsibility, we invest significantly in developing: policies, tools and reporting infrastructure for our platforms; technology that detects and removes harmful content proactively; and programs to support young people to have a safe and positive experience online.

This submission provides more information around these efforts.
There is a shared commitment amongst all stakeholders to online safety, and especially the safety of young people online.

The shared commitment on online safety sits within a broader debate, currently underway in Australia and around the world, about what content should be allowed online, and how much discretion should be afforded to companies or governments to make those decisions.
We support the legislation as an opportunity to enhance the online safety of Australians and to establish a regime that holds companies to account for the commitments they make.

There are many elements of the legislation that we commend, in particular, the use of voluntary industry codes to set obligations for companies in addressing emerging policy concerns, rather than setting prescriptive requirements in law.
In recognition of concern that private companies are often making decisions about important content issues, we have not waited for legislation but provided ongoing transparency through our regular Community Standards Enforcement Reports.

These enable us to be held to account for our efforts to address harmful content on our service: for example, in the fourth quarter of 2020, we removed 6.3 million pieces of bullying and harassment content, up from 3.5 million pieces of content in the previous quarter.
This was driven, in part, by increasing our automation abilities and improving our technology to detect and remove more English language comments, which helped our proactive rate increase from 26.4% to 48.8%.
2 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 To ensure greater accountability for our content governance, we have also taken proactive, voluntary steps to establish an Oversight Board to making binding rulings on difficult and significant decisions about content on Facebook and Instagram.

Together, new legislation and industry governance initiatives like these will improve accountability for content on digital platforms.
Whether content removal decisions are taken by government or industry, however, content regulatory frameworks should set clear and reasonable definitions about otherwise legal content that warrants removal, and also transparency and accountability.1 While we support the online safety legislation’s intent, there are three areas where the scheme seems to go further than the stated policy intent of the legislation: expansion of cyberbullying takedown schemes to private messaging; the low threshold proposed for the new adult cyberabuse scheme; and the need for greater transparency and accountability to ensure regulatory decision making applies with the expectations of the community.
Firstly, the extension of cyberbullying takedown schemes to private communications (like messaging or email) seems to be a disproportionate response to bullying and harassment, given the existing protections and tools already available.

The eSafety Commissioner and law enforcement already have powers around the worst risks to online safety that can arises in private messages - like non-consensually shared intimate images and child sexual abuse material.
And most private messaging services (including those provided by Facebook) provide tools and features to give users control over their safety in private messaging, like the ability to delete unwanted messages and block unwanted contacts.

Despite the fact that existing laws allow the most serious abuses of private messaging to be addressed, the legislation extends regulatory oversight to private conversations between Australians.
Whilst no form of bullying and harassment should be tolerated, we do not believe this type of scheme is suitable for private messaging.

Human relationships can be very complex.

Private messaging could involve interactions that are highly nuanced and context-dependent and could be misinterpreted as bullying, like a group of friends sharing an in-joke, or an argument between adults currently or formerly in a romantic relationship.
It does not seem clear 1 M Bickert, Charting a way forward: online content regulation, white paper released February 2020, https://about.fb.com/wp-content/uploads/2020/02/Charting-A-Way-Forward_Online-Content- Regulation-White-Paper-1.pdf.
3 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 that government regulation of these types of conversations are warranted, given there are already measures to protect against when these conversations become abusive.

Moreover, the policy rationale of the Australian Government’s cyberbullying scheme for social media does not apply in the same way to private messaging.
This is because bullying over private messaging cannot go viral in the same way as a piece of bullying content on a public social media platform; and regulators will rarely have the full context to determine whether a private conversation genuinely constitutes bullying.

If people receive a hurtful message, they can easily delete it, block the sender and/or report it for action by the platform.
These tools are designed to give people control over a very direct communications channel, given they will be best placed to have the context and to reduce the harm of a bullying message themselves.

The nature of private messaging services means a takedown scheme will result more in the removal of entire accounts rather than removal of individual messages.
Secondly, we believe the threshold set for an adult cyberbullying scheme could potentially lead to broader ramifications than anticipated and extend the eSafety Commissioner’s regulatory powers to legitimate political speech and debate.

The legislation allows the eSafety Commissioner to order takedown by a digital platform simply if the content is offensive and was likely intended to cause serious harm.
There are several reasons to be concerned about ‘offensive’ being a key threshold for the adult cyberbullying scheme.

Firstly, it is a low threshold and has previously attracted controversy in Australia in other contexts, such as in relation to section 18C of the Racial Discrimination Act.
Contrary to the Government’s stated intention in the consultation paper on the new online safety legislation, the use of the word ‘offensive’ sets a lower threshold for the adult cyberbullying scheme than for the existing scheme relating to children.
In addition, the threshold of ‘offensive’ could create a challenging interaction between online safety legislation and existing laws, such as defamation, which have developed over time and which contain appropriate defences in order to balance between freedom of expression and addressing harms.

In order to not unduly limit speech, comparable defences should be added to the online safety legislation to ensure an adequate balance, similar to other laws.
The current threshold of 'offensive' fails to strike that balance.

The risk is that an eSafety Commissioner could order the removal of ‘offensive’ content with public interest value (such as, posts from whistleblowers that contain allegations similar to stories considered by the Royal Commission into Institutional Responses to Child Abuse).
4 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 There is also the very real risk that this low threshold, as it has in other legislation, would capture political speech: the heat of political debate may result in legitimate political comments that could be considered offensive.
Because the speech of political officials is within scope of the legislation, a regulator will have the discretion to potentially police what politicians say to each other.

Given the highly ambiguous thresholds for regulatory action under the proposed legislation such as ‘serious harm’ and ‘offensive’, there is significant likelihood that the adult cyberbullying scheme becomes de facto the regulation for all speech online.
To address this concern, a possibly more judicious threshold for the adult cyberbullying scheme would be replacing ‘offensive’ with ‘grossly offensive’ (in line with the New Zealand Harmful Digital Communications Act), which would more than adequately capture harmful bullying of adults without the same risks of overreach.

Alternatively, the legislation could expressly require the eSafety Commissioner to consider the impact of exercising their discretion on the broader public interest and free speech.
Thirdly, the legislation grants a single regulator a considerable level of discretion and power over speech online.

Clearer guidelines and greater checks and balances could assist in making sure this discretion is applied in ways that are consistent with the community’s expectations.
The nature of a complaints-based regulatory scheme means that any regulator only has sufficient information that will allow them to decide in favour of the person making the complaint: the eSafety Commissioner only considers the complainant’s perspective of the possible harm resulting from a post and is not required to consider the relevant information from the other person engaged in the activity (when often this information will challenge or recontextualise the original complaint).
These comments are not intended to criticise the judgement or discretion of the regulator: online content decisions can be incredibly challenging, difficult to balance competing interests, and potentially significant to the individuals involved (or even society more broadly).

Just as there should be transparency over the approach taken by digital platforms, there should also be transparency for decisions taken by regulators.
To that end, we encourage the Government to consider greater transparency and accountability measures for the relevant regulator, especially given the potentially significant impact of the systems enforced or the content decisions taken by the eSafety Commissioner.

A specific measure could include the eSafety Commissioner reporting to Parliament with quantifiable metrics about reports and takedown notices.
We also encourage the Government to consider stronger legal defences to 5 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 protect legitimate political speech and requirements for the Commissioner to notify and reasonably consult with a digital platform prior to issuing a service provider notification.
We are concerned that the legislation is progressing without sufficient time to consider valid concerns raised during consultation processes.

We note that the legislation introduced to Parliament, the draft legislation released for consultation in December 2020, and the Government’s original consultation paper in December 2019 are all near-identical.
It is not clear that changes have been made in response to feedback received: especially given the final legislation was introduced to Parliament around one week after submissions were due on the Exposure Draft.

Submissions to the Exposure Draft have not yet been published.

And the Senate Committee on Environment and Communications has been given only two weeks to review the legislation, with stakeholders given only five days to prepare submissions to this inquiry.
Even the best-intentioned policymakers would struggle to comprehend the significant changes contemplated in this legislation within that very short period of time.

We urge the Committee to recommend a longer period of time for Australian policymakers to properly review and consider the consequences of the draft legislation at hand.
6 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Table of contents EXECUTIVE SUMMARY TABLE OF CONTENTS FACEBOOK’S COMMITMENT TO SAFETY Policies Enforcement Tools Resources Partnerships Accountability CONCERNS WITH THE LEGISLATION Private messaging Threshold for the adult cyber-bullying scheme Greater regulatory transparency and accountability Transparency and accountability Simple appeal mechanisms Clear legal defences Minimising the regulatory burden Statutory review 2 7 8 8 9 11 12 13 15 17 17 18 20 20 21 21 22 24 7 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Facebook’s commitment to safety Facebook undertakes significant proactive work to protect the online safety of Australians who use our services.
As context to the Government’s consideration of enhancing Australia’s online safety legislation, we wanted to share an overview of Facebook’s work to promote the safety and wellbeing of all Australians, particularly young Australians.

Facebook is strongly committed to enhancing the online safety of people who use Facebook services.

That’s why we have invested in an industry-leading program of online safety that comprises five components: 1.

Policies 2.

Enforcement 3.

Tools and products 4.

Resources 5.


Partnerships.

We are also pursuing initiatives to ensure we are held accountable, including the Oversight Board and our support for content governance frameworks.

Policies Firstly, we develop policies to keep people safe.

Because we take seriously our role in keeping abuse off our service, we’ve developed a set of Community Standards2 that outline what is and is not allowed on Facebook.
Safety is a core value of our Community Standards.3 Our policies are based on feedback from our community and the advice of experts in fields such as technology, public safety and human rights, including experts based in Australia.

To ensure that everyone’s voice is valued, we take great care to craft policies that are inclusive of different views and beliefs, in particular those of people and communities that might otherwise be overlooked or marginalised.
The Community Standards are regularly updated to keep pace with changes happening online and offline around the world.

Every two weeks, members of our Product Policy team, who sit in 11 offices around the world, run a meeting called the Product Policy Forum to discuss potential changes to our Community Standards, ads policies and major News Feed ranking changes.
A variety of subject matter experts participate in this meeting, including members of our 2 Facebook, Community Standards, https://www.facebook.com/communitystandards/ 3 Monika Bickert, Updating the values that inform our community standards, https://about.fb.com/news/2019/09/updating-the-values-that-inform-our-community-standards/ 8 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 safety and cybersecurity policy teams, counterterrorism specialists, Community Operations employees, product managers, public policy leads and representatives from our legal, communications and diversity teams.
In keeping with our commitment to greater transparency, the minutes of these meetings are made publicly available.4 Our Community Standards prohibit various categories of harmful content, from violent content, objectionable content and content that contravenes people’s safety (including suicide and self-injury, child exploitation, adult sexual exploitation, bullying and harassment, human exploitation, and privacy violations).
Enforcement Secondly, to enforce our policies, we use a combination of automation and human review.

We use technology and automation in a number of ways to enforce our policies, to help our teams of human reviewers perform faster and smarter, and to proactively detect and remove content that violates our Community Standards.
We publicly report our progress in enforcing our policies through the Community Standards Enforcement Report (CSER), which indicates the volume of content actioned across various categories of our Community Standards.
According to the last Community Standards report (February 2021)5, in the period October to December 2020, on Facebook we took action against: ● 5.4 million pieces of content for child nudity and child sexual exploitation, 98.8 per cent of which was detected proactively via artificial intelligence.

● 8.6 million pieces of content for terrorism, 99.8 per cent of which was detected proactively via artificial intelligence.
● 2.5 million pieces of content for suicide and self injury, 92.8 per cent of which was detected proactively via artificial intelligence.

It is worth particularly highlighting progress in relation to the following two types of content: ● 6.3 million pieces of content for bullying and harassment, up from 3.5 million in the previous quarter ● 26.9 million pieces of content for hate speech, up from 22.1 million in the previous quarter.
4 See, for example, https://about.fb.com/news/2018/11/content-standards-forum-minutes/ 5 G Rosen, ‘Community Standards Enforcement Report - February 2021’, Facebook Newsroom, 11 February 2021, https://about.fb.com/news/2021/02/community-standards-enforcement-report-q4- 2020/ 9 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Both of these areas have traditionally been difficult to detect proactively via artificial intelligence, given they are so context-dependent.
However, our proactive detection ability has continued to improve, with: ● 48.8 per cent of bullying and harassment content removed proactively via artificial intelligence.

This is an increase from 26.4 per cent in the previous quarter and 16.1 per cent one year prior.

● 97.1 per cent of hate speech content removed proactively via artificial intelligence.

This is an increase from 94.7 per cent in the previous quarter and 80.9 per cent one year prior.
Improvements to our artificial intelligence in areas where nuance and context are essential, such as hate speech or bullying and harassment, helped us better scale our efforts to keep people safe.
To assist others within industry and government to leverage our investments in automatic detection of harmful content, we made a major announcement that we were sharing some of our AI technologies that detect harmful content (called PDQ and TMK+PDQF) on an open source basis, to help build the capacity of our industry partners, smaller developers and not-for-profits.
In addition to insights on content that we have actioned, one of the most significant metrics we provide in the CSER is prevalence.6 Focusing on prevalence allows consideration to be given to how often content that violates our standards is actually seen relative to the total amount of times any content is seen on Facebook.

The way content causes harm on the internet is by being seen.

Given the nature of the internet, the amount of times content is seen is not evenly distributed.
A small amount of content could go viral and get a lot of distribution in a very short span of time, whereas other content could be on the internet for a long time and not be seen by anyone.

Any measure we use to understand our enforcement of harmful content should take that into consideration.

For this reason, we consider prevalence to be a critical metric because it helps us measure how violations impact people on Facebook.
We care most about how often content that violates our standards is actually seen relative to the total amount of times any content is seen on Facebook.

Ideally, we would remove all violating content before anyone ever sees it, if it was possible to perfectly moderate content.

In some cases, however, the content never being detected or reported in the first place is a bigger reason harmful content is seen.
6 Facebook, Measuring Prevalence of Violating Content on Facebook, https://about.fb.com/news/2019/05/measuring-prevalence/ 10 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 We need a measure that captures all of these reasons people may be exposed to harmful content.

We believe prevalence is that measure.


We now report prevalence across 7 of the 10 policy areas (up from 5 policy areas in the previous report) that we disclose in our CSER.

Tools Thirdly, we design tools within our products to empower people to address potentially negative impacts from the use of our services, including tools related to privacy, security, safety and wellbeing.
In addition to the long-standing tools of Block, Report, Hide, Unfollow7, some of the latest features we have recently announced include: tests on Facebook and Instagram in Australia and other countries to minimise social comparison by hiding the total number of likes on posts8; a Restrict feature in Instagram that protects accounts from unwanted interactions without making the people involved aware9; and a new feature on Instagram that encourages people to pause and reflect on a potentially hurtful comment or caption before posting it.
A screenshot of the latter is provided below.

7 An overview of these and other tools is available in the Facebook Safety Center: https://www.facebook.com/safety/tools 8 Antigone Davis, How can Facebook design products with interests of young people at their core?
https://www.facebook.com/notes/facebook-australia-new-zealand-policy/how-can-facebook-design- products-with-interests-of-young-people-at-their-core/2374348519559074/ 9 Instagram, Introducing the Restrict feature to stand up against bullying, https://about.instagram.com/blog/announcements/stand-up-against-bullying-with-restrict 11 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Resources Fourthly, we make a variety of resources that we have worked on, often with third party experts, available to assist teachers, parents and other people to be safe online.
This includes the Instagram safety and wellbeing hub10 and the Facebook Safety Center11.
Within the Facebook Safety Center, there are various additional resources including: ● Our Bullying Prevention Hub developed in partnership with the Yale Centre for Emotional Intelligence; ● A Digital Literacy Library, which is a collection of lessons to help young people think critically and share thoughtfully online, developed together with the Berkman Klein Center for Internet & Society at Harvard University; ● The Parents Portal that contains information and tips for parents to help foster conversations among parents and their children about staying safe online; and, ● Not Without My Consent, which provides information about our pilot to combat non-consensually shared intimate images.
10 Instagram safety and wellbeing hub, https://about.instagram.com/community 11 Facebook Safety Center, https://www.facebook.com/safety/educators 12 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Partnerships Finally, we have delivered a number of partnerships - including in Australia - as part of our comprehensive safety programs.

1.

We have invested $1 million in a Digital Ambassadors program delivered by PROJECT ROCKIT.
Digital Ambassadors is a youth-led, peer-based anti- bullying initiative.

A Digital Ambassador aims to utilise credible strategies to safely connect and tackle online hate.

We are supporting PROJECT ROCKIT to continue to reach young people through education, particularly in remote and regional areas throughout 2021.

This is a nine-year partnership that has directly empowered more than 11,500 young Australians to tackle cyberbullying.12 2.
We worked with the Alannah and Madeline Foundation and the Stars Foundation on the Safe Sistas program, which supports the online safety of young Indigenous women to respond to the issue of non-consensually shared intimate images.13 3.

During COVID-19, we provided significant support to our safety partners.
Specifically, we funded the following initiatives: ● Project Rockit: delivered an online campaign encouraging young people to find connection and belonging in online communities, to minimise social isolation.

● The Alannah and Madeline Foundation: delivered a research paper into the impacts of social distancing and isolation on young people and how technology can alleviate challenges.
● Cyber Safety Solutions: led by Susan McLean, Cyber Safety Solutions delivers online education to students and parents across Australia.

We supported continued education and resources for parents in a new online format.

● Family and domestic violence organisations: we worked with WESTNET, 1800 RESPECT and Our Watch to promote their messaging campaigns around family violence, so they can reach vulnerable Australians who may need their help.

4.
4.

As part of our Boost with Facebook for Regional Australia initiative, we are investing in the digital skills of regional communities.

Technology can be a great equaliser for a country defined by distance such as Australia and through our Community Boost initiative, we are working to ensure that people in regional Australia have access to the same information about how to have a safe and positive experience online, as people who live in metropolitan areas.
12 R Thomas, ‘Young People at the Centre’, Facebook Australia blog, 8 February 2021 https://australia.fb.com/post/young-people-at-the-centre/ 13 Alannah & Madeline Foundation, Helping Sistas be safer, https://www.amf.org.au/news-events/latest- news/helping-sistas-be-safer/ 13 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Since 2018, we have trained over 11,500 young people across Australia with tips and insights about how to have a safe and supportive experience online.
5.

In September 2018 and in December 2019 respectively, we released the Own Your Feed and The Whole Me campaigns with the Butterfly Foundation, to help people make sure their time on social media is positive, inspiring, safe and empowering.14 The campaigns aim to support better mental health and self- esteem in relation to how people feel about how they look.

6.
6.

To ensure that young Australians get support messages when they need it, we have worked with headspace since 2019 to provide them with support to promote messages and advice to people in their News Feeds, who are living in towns, regions or communities that have recently experience the suicide of young people.

7.
7.

Throughout October 2020, we also worked with ReachOut and a range of Australian creators to raise awareness and educate the public on mental health, including highlighting through the Reels format on Instagram various ways Australians can care for their personal wellbeing.

8.
8.

To support parents to understand the tools that are available on Instagram, we worked with ReachOut to develop an Instagram Parents Guide that contains suggested conversation starters to better understand how their teens are using Instagram and how to ensure they are using it safely and positively.15 We released the Guide in September 2019.

And we partnered with a number of organisations - including the eSafety Commissioner’s Office - in July 2019 to deliver a Safety by Design Jam.
The Safety by Design Jam was a workshop designed specifically for young people, which sought to gather insights and feedback from the people best placed to talk about youth safety online - young people themselves.
It was the first of five age-appropriate Design Jams around the world, aiming to bring together policymakers, academics, safety and privacy experts, and, of course, young people, to share new ideas and perspectives about how we can build age-appropriate experiences on our products that meet the needs and expectations of our young community.

More information about our safety partnerships in Australia can be found at www.australia.fb.com/onlinesafety.
14 The Butterfly Foundation, Instagram launches Own Your Feed campaign, https://thebutterflyfoundation.org.au/about-us/media-centre/media-releases/instagram-launches- own-your-feed-campaign-in-response-to-body-image-survey-fingings/; see also https://thebutterflyfoundation.org.au/support-us/the-whole-me/ 15 ReachOut, Instagram Parents Guide, https://parents.au.reachout.com/landing/parents-insta-guide 14 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Accountability We recognise that, as a large company, the decisions we take relating to content on our services can be significant.
That’s why we have supported a number of initiatives to ensure there is transparency and accountability for the decisions we take.

Firstly, we have established the Oversight Board.

The members of the Oversight Board were appointed in May 202016 and they began taking cases in October 2020.17 The Oversight Board was borne out of the recognition that critical decisions about content should not be left to companies alone.
Content decisions can have significant consequences for free expression and companies like Facebook - notwithstanding our significant investments in detection, enforcement and careful policy development - will not always get it right.

The Oversight Board comprises 20 experts in human rights and technology - including the Australian academic Professor Nic Suzor - and will increase over time to 40 members.
The Board is entirely independent and hears appeals on Facebook’s decisions relating to content on Facebook and Instagram (beginning with decisions where content was removed).
We have agreed that the Board’s decisions will be binding, and the Board is also able to make recommendations about Facebook’s policies.18 The Oversight Board has begun issuing its decisions from January 2021.19 Facebook has also announced that we have referred our decision to indefinitely suspend Former President Trump’s Facebook and Instagram accounts to the Oversight Board, given it is a significant and difficult decision.20 We believe the Oversight Board is a significant innovation in content governance and a first-of-its-kind initiative.
It will make Facebook more accountable for our content decisions and will help to improve our decision-making.
When combined with other proactive industry initiatives (like Facebook’s Community Standards Enforcement 16 N Clegg, ‘Welcoming the Oversight Board’, Facebook Newsroom, 6 May 2020, https://about.fb.com/news/2020/05/welcoming-the-oversight-board/ 17 B Harris, ‘Oversight Board Selects First Cases to Review’, Facebook Newsroom, 1 December 2020, https://about.fb.com/news/2020/12/oversight-board-selects-first-cases-to-review/ 18 B Harris, ‘Establishing structure and governance for an independent oversight board’, Facebook Newsroom, 17 September 2019, https://about.fb.com/news/2019/09/oversight-board-structure/ 19 M Bickert, ‘Responding to the Oversight Board’s First Decisions’, Facebook Newsroom, 28 January 2021, https://about.fb.com/news/2021/01/responding-to-the-oversight-boards-first-decisions/ 20 N Clegg, ‘Referring Former President Trump’s suspension from Facebook to the Oversight Board’, Facebook Newsroom, 21 January 2021, https://about.fb.com/news/2021/01/referring-trump- suspension-to-oversight-board/ 15 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Report) and new legislation, it will provide greater confidence and accountability about the decisions underpinning content on our platform.
Secondly, we have been supportive of new regulations for content decisions.

Facebook has been at the global forefront of calling for regulation of harmful content.
In 2019, our CEO Mark Zuckerberg called for liberal democracies to develop new regulation in relation to online content (along with privacy, data portability and elections)21, a call that he reiterated in the Financial Times early last year.22 At the same time, we released a white paper called Charting a Way Forward - Online Content Regulation, which raises a series of questions to assist in designing effective content regulation.23 Many of those questions relate to the questions considered in the Australian Government in designing a new Online Safety Act.
We have called for content regulation because, in many aspects of online content24, to date, Facebook has had to make decisions on where to draw the line between freedom of expression and harmful content.

We strongly believe that designing the rules of the internet should not be left to private companies alone, and we recognise that new regulation can make a real positive difference.
It is preferable for this regulation to be developed in liberal democracies that uphold values of free expression and human rights, rather than countries that adopt a more authoritarian view of speech.

In the past, laws regulating expression have generally been implemented by law enforcement officials and the courts, but internet content moderation is fundamentally different.
The white paper asks whether governments should create rules to address this complexity, recognising user preferences, differences in services, the need to enforce at scale, and flexibility across language, trends and context.

We have provided a significant amount of constructive input to the Australian Government over the last 12 months, with the hope that it may result in a regulatory framework for online safety in Australia that could form a template for content regulation in the rest of the world.
21 Mark Zuckerberg, ‘The Internet Needs New Rules’, Washington Post, https://www.washingtonpost.com/opinions/mark-zuckerberg-the-internet-needs-new-rules-lets-start- in-these-four-areas/2019/03/29/9e6f0504-521a-11e9-a3f7-78b7525a8d5f_story.html 22 Mark Zuckerberg, Big tech needs more regulation, https://www.ft.com/content/602ec7ec-4f18-11ea- 95a0-43d18ec715f5 23 M Bickert, Charting a way forward: online content regulation, white paper released February 2020, https://about.fb.com/wp-content/uploads/2020/02/Charting-A-Way-Forward_Online-Content- Regulation-White-Paper-1.pdf.
24 Notwithstanding the small number of content regimes in some areas around the world, like the Enhancing Online Safety Act.

16 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Concerns with the legislation There are three primary concerns Facebook has with the legislation, relating to: 1.

The inclusion of private messaging 2.

The threshold for the adult cyberbullying scheme 3.
Greater transparency and accountability for the regulator, given the increased powers of the eSafety Commissioner.

Private messaging The legislation proposes extending the cyberbullying scheme to all private communication services (including private messaging and email).
This grants the eSafety Commissioner the power to police not just social media posts but also private conversations between Australian users for potential bullying and harassment, and sets an expectation that digital platforms will be monitoring and policing private conversations.

There is no doubt that safety concerns can arise in relation to private messaging.
However, it is overly simplistic to assume the existing cyberbullying takedown scheme should be applied wholesale to private messaging, for a number of reasons: 1.

Australian law already protects against serious harm in private messaging.

The eSafety Commissioner already has powers in relation to use of private messaging for the most serious harmful types of content (child exploitative content, and non-consensually shared intimate images).
In relation to more complex and context-specific harms like bullying, people already have significant control over their experience when messaging.

There are many tools in messaging services that Australians can use to manage the messages they receive.

They can delete any message they receive and block any person from contacting them.
Within Messenger, people also have the option to Ignore any conversation, which moves those messages into a separate inbox, so they don’t have to see it every time they open Messenger.

Similar messaging controls exist on Instagram Direct.

2.

The nature of potential harm is different on private messaging to public forums like social media.
The type and severity of harm experienced via bullying or harassment on private messaging services is different from social media services, primarily because users have greater control over the interaction.

This remains true for group conversations over private messaging as well - the same tools are available on WhatsApp and Messenger for example for group conversations as for private direct messages.
17 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 3.

Takedown schemes are ill-suited for private messaging.

The existing cyberbullying scheme was developed to provide Australians with recourse when they experienced harassment online and they were unable to remove it themselves.

On private messaging services however, Australians have a much greater level of control over their messages.
Government takedown schemes are a blunt instrument when applied to private messaging, and they will struggle to capture the context and complexity of human relationships.

Because private conversations do not have a public or shaming component, decisions about whether content constitutes bullying or harassment will require finer judgement and a full understanding of the context of the relationship and offline context in which the conversation occurs.
While takedown schemes for social media can help stem the further sharing and continued harm of a piece of bullying or harassment content, they are less suitable for bullying or harassment that occurs privately than laws or schemes that are directly targeted at stopping the perpetrator from continuing the behaviour.

The nature of private messaging services means a takedown scheme will result more in the removal of entire accounts rather than removal of individual messages.

4.
4.

There are technical limitations in the ability to monitor and police private messaging.

The extension of the cyberbullying scheme to end-to-end encrypted messaging services would not account for the technical challenges and features of encryption.

The core principle behind end-to-end encryption is that only the sender and recipient of a message have the keys to “unlock” and read what is sent.

No one can intercept and read these messages.


To protect people who use WhatsApp, for example, we have protections in place to help keep people safe from unwanted contact and offer them the ability to block and report inappropriate behaviour.

Those found violating our terms of service are removed from the platform.

However, beyond these individual controls, end-to-end encrypted services would be otherwise unable to comply with a government order to remove a specific message.
While we accept the need to ensure the safety of users in private messaging, we do not believe a takedown scheme designed for social media is suitable nor should be applied wholesale to private communications.

Threshold for the adult cyber-bullying scheme Facebook supports the creation of an adult cyber-bullying scheme in Australia.
However, as the Government recognised in the consultation paper for this legislation, the scheme available to adults should set a higher threshold than the scheme for 18 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 children, in recognition “that adults can be expected to demonstrate a higher level of resilience and maturity than children”.25 We highlighted in our previous submission that an adult-focussed regulatory scheme incurs greater risks than a scheme only available to children.
The potential vulnerability of children means it is appropriate to err on the side of taking down content that may constitute bullying and harassment, but adults have much more complex and nuanced relationships.

Context becomes much more important and judgements about meaning and impact are more subjective, which means that reasonable minds can differ about what should constitute bullying or harassment.
There is also a risk that, in removing content that one person finds to be bullying and harassment, another person may consider that their legitimate self expression has been curtailed or censored.

However, the legislation does not seem to give effect to the Government’s stated intention: it sets a lower threshold for adults than for children.

It allows the eSafety Commissioner to seek the removal of content that is “menacing, harassing or offensive” and was likely intended to cause serious harm.
The experience of other laws demonstrates that, ‘offensive’ is a low threshold -- for example, it has previously attracted controversy in Australia in other contexts, such as in relation to section 18C of the Racial Discrimination Act.
The design of this definition creates a challenging crossover between online safety legislation and existing laws, such as defamation, which have developed over time and which contain appropriate elements and defences in order to balance between freedom of expression and the protection of reputation.
We do not believe it is appropriate for an adult cyberbullying scheme to cut across multiple pieces of well- established and tested legislation by creating a new, ambiguous standard that results in greater uncertainty for companies about content that may be within scope.

There is also no doubt that this low threshold would capture political speech: the heat of political debate may result in legitimate political comments that could be considered offensive.
Furthermore, in determining what is offensive, there is no requirement to consider the public interest value of the material.

Because the speech of political officials is within scope of the legislation, the eSafety Commissioner will have the power to police what politicians say to each other.

It is not clear that this meets the policy intent of the legislation and perhaps greater clarification and safeguards are needed here.
25 Department of Communications and the Arts, Online safety legislative reform discussion paper, December 2019, https://www.communications.gov.au/have-your-say/consultation-online-safety- reforms.
19 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 A potentially more judicious threshold for the adult cyberbullying scheme, could be replacing ‘offensive’ with ‘grossly offensive’ (in line with the New Zealand Harmful Digital Communications Act) would more than adequately capture harmful bullying of adults without the same risks of overreach.
Alternatively, the legislation could expressly require the eSafety Commissioner to consider the impact of exercising their discretion on the broader public interest and free speech.

Greater regulatory transparency and accountability Overall, the legislation represents a significant increase in the breadth and scope of the eSafety Commissioner’s powers.
Many of the provisions of the legislation (for example, the basic online safety expectations or the definition of ‘serious harm’ in the adult cyberbullying scheme) are unclear, and rely on the discretion of the eSafety Commissioner.

To ensure that these powers are exercised in ways that are proportionate and balanced, the legislation requires greater regulatory transparency and accountability.
We recommend the following checks and balances: ● Transparency and accountability of regulatory content decisions ● Simple appeal mechanisms for individuals, to correct regulatory errors ● Establishing clear legal defences ● Minimising the regulatory burden and ensuring best practice regulatory performance ● Statutory review of the scheme.

These are outlined in more detail below.


Transparency and accountability Facebook agrees that there should be greater accountability and transparency about digital platforms’ decision making in relation to content on their services.

Particular instances of content can be difficult and significant, and we support frameworks (both legislative and industry-led, like the Oversight Board or our internal appeals processes) to provide greater confidence about content decisions.
This is also why we voluntarily report quarterly, with consistent metrics, on our enforcement of Facebook’s Community Standards.

We support the development of legislative frameworks to oversee content decisions by platforms, but those frameworks should be accompanied by comparable levels of transparency and accountability for the regulators making those content decisions in place of platforms.
20 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 For example, the eSafety Commissioner’s Office already provides an annual report (like all government agencies), but -- to increase transparency -- this could contain information such as the number of complaints received, number of referrals sent to digital platforms, number of notices issued, or number of end-user notices issued.
Simple appeal mechanisms There should be simple appeal mechanisms to allow individuals to raise appeals directly with the eSafety Commissioner’s Office for adult cyberabuse.

These should allow the respondent to express their point of view in response to a complaint when the Office makes a mistake or they disagree with the decision.
The very nature of a complaints-based regulatory scheme means that the regulator will inevitably lean in favour of the person making the complaint: the eSafety Commissioner only considers the complainant’s perspective of the possible harm resulting from a post and does not have the information nor imperative to consider the other side of the story.

This may be particularly important when political speech is in question.
While there is broad and concrete agreement about the need to protect online safety and remove harmful content, there can be great contention about what constitutes harmful content when looking at the specifics of a particular piece of content.

Human relationships can be very complex.

Even a considered and well-intentioned regulator will inevitably make mistakes; just as digital platforms’ content enforcement is imperfect.
If an individual has their content or account taken down on the instruction of the eSafety Commissioner, they should have a simple way to raise this concern directly with the Office, without needing to resort to the Administrative Appeals Tribunal (AAT).

AAT processes are long, complex, costly and, by their very nature, will not be an effective option for recourse for disadvantaged Australians.
Clear legal defences Currently, the eSafety Commissioner has broad discretion over how to direct standards, issue take down notices, and enforce the basic online safety expectations.
To ensure the regulator’s decision making approach is aligned with the expectations of the community, we recommend the Government consider whether it would be useful to encourage the Commissioner to have any regard to any countervailing factors, or recognition of any legitimate difficulties in complying with an eSafety Commissioner direction or regulation.
21 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Some clear legal defences that the Government may wish to consider are provided below: ● A “reasonable steps” defence.
There will be some instances where it is simply not possible to find the content or user that the eSafety Commissioner’s Office is concerned about: we have experienced situations in which referrals to us are unclear, and we have not been provided with enough information to locate the content or user in question.
We will always take additional reasonable steps to go beyond and attempt to find the material being referred by the eSafety Commissioner’s Office but - under the legislation - a company could be found non-compliant even if the information provided with the complaint is unclear.

(We note that the adult cyberbullying scheme contains an “all reasonable steps” test, but this requirement does not extend to the child cyberbullying scheme.)

● A public interest defence.


As outlined earlier, given the low threshold set for the adult cyberbullying scheme, we anticipate that there would be ‘offensive’ material that could arguably result in serious harm to an individual that would still hold significant public interest.

This is particularly the case in relation to content by whistleblowers, such as those who were part of the Royal Commission into Institutional Responses to Child Abuse.
The eSafety Commissioner should be directed to consider public interest factors as they operate their wide-ranging discretion.

There could also be some consideration for instances where there is a conflict of laws (for example, where a regulated entity is unable to comply with an eSafety Commissioner’s direction because of a conflict of laws where a regulated entity would be forced to choose between violating the online safety legislation to ensure compliance with international laws).
Minimising the regulatory burden The eSafety Commissioner is granted a significant expansion in their powers over digital platforms as a regulator under this legislation.

Some examples include: ● Under the basic online safety expectations, the eSafety Commissioner can issue a ‘service provider notification’ about any concerns with breaches of the expectations.

The legislation allows for these notifications and any associated reports to be made publicly available, even before a company is notified.
It would be good regulatory practice to at least notify and reasonably consult 22 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 with a digital platform, prior to publicly claiming they are not meeting basic expectations.

● While we welcome the use of voluntary industry codes to deal with emerging policy issues rather than legislation, the law allows the Commissioner to make a service provider determination (ie.
set a new regulatory obligation on a single company or parts of industry), and does not require any notice or consultation prior to this determination being made.

● The legislation now provides for quasi-law enforcement style investigatory powers, which attract significant penalties for non-compliance.

Collectively, these changes could incur a marked increase in the regulatory burden faced by digital platforms.

The regulatory burden of these requirements should be regularly reviewed.
In addition to some minor legislative changes, we suggest that it may be useful to include some additional governance structures in place to make sure the eSafety Commissioner’s Office acts in accordance with best practice regulatory principles.
As per the Government’s regulatory performance framework, the Office should consult with regulated entities to gather feedback on its performance.26 26 Department of the Prime Minister & Cabinet, Regulatory Performance Framework, https://pmc.gov.au/sites/default/files/publications/Regulator_Performance_Framework.pdf 23 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35 Statutory review We recommend that the legislation contain a statutory review of the operation of the legislation, to begin two years after the legislation’s passage.
This would be an entirely normal provision, consistent with other pieces of legislation of this level of significance.

This is especially important given the unusually short period of time for Parliament to consider this legislation.

24 Online Safety Bill 2021 and Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021Submission 35