Australia's New Online Safety Act

Today (23 June 2021) the Online Safety Act passed the Australian Senate. As by constitutional convention Royal Assent is automatic after a bill is passed by both Houses of the Parliament, it might as well be law even though the Governor-General hasn't put his name on it yet. Since it comes into effect a maximum of 6 months from its passage (2), and its strength is, to say the least, sweeping, it is important not only for Australians but also for Canadians, British, and even Americans and citizens of non-English-speaking nations to know about it, given its authors intend it to be a model for similar legislation worldwide.

Material Covered by the Act

This Act's definition of "material" includes text, data, sounds, pictures and videos. This Act covers five types of material:

• "cyber‑bullying material targeted at an Australian child";
• "cyber‑abuse material targeted at an Australian adult";
• "non‑consensual intimate image of a person";
• "material that depicts abhorrent violent conduct";
• "Class 1 material" and "Class 2 material".

Cyber-Bullying Material Targeted at an Australian Child

If "an ordinary reasonable person would conclude that" it is likely that material is meant for a particular Australian child, and "would be likely to have the effect on the Australian child of seriously threatening, seriously intimidating, seriously harassing or seriously humiliating the Australian child", then the material falls into this category. However, if the material was posted by a person that is "in a position of authority over an Australian child" "in the lawful exercise of that authority" as "reasonable action taken in a reasonable manner", then it doesn't fall into this category (6).

Cyber-Abuse Material Targeted at an Australian Adult

If "an ordinary reasonable person would conclude that it is likely that the material was intended to have an effect of causing serious harm to a particular Australian adult" and "an ordinary reasonable person in the position of the Australian adult would regard the material as being, in all the circumstances, menacing, harassing or offensive", then it falls into this category (7). "Serious harm" is defined as "serious physical harm", "serious psychological harm", or "serious distress" (3).

Non-Consensual Intimate Image of a Person

An intimate image includes a picture or video of the following "in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy":

• the genital or anal region (whether bare or covered by underwear) of any person, or either or both of the breasts of a female, transgender, or intersex person,
• a person "in a state of undress, using the toilet, showering, having a bath, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity",
• a person without "particular attire of religious or cultural significance" that they wear "whenever the person is in public" "because of the person’s religious or cultural background" (15).

A picture or video falls into this category if it is posted without the consent of the person it depicts, but if it is posted as an "exempt provision" it doesn't fall into this category (16). "Exempt provisions" are if the posting is for enforcing the law, for "a genuine medical or scientific purpose", or if "an ordinary reasonable person would consider the provision of the intimate image on the service acceptable", among others (86).

Material That Depicts Abhorrent Violent Conduct

"Abhorrent violent conduct" means terrorist acts, murder, attempted murder, torture, rape, or kidnapping. Unlike with the other categories, there is no reasonable person test; merely that material records or streams such conduct puts it into this category (9).

Class 1/2 Material

"Class 1 material" means films, video games, publications, or the contents thereof that are, or have not been but would likely be, classified as RC (banned), or other material that would be RC if it was a film (106).

"Class 2 material" means films, video games, publications, or the contents thereof that are, or have not been but would likely be, classified as X18+ or R18+ (or as Category 1 or 2 restricted for publications), or other material that would be classified there if it was a film (107).

Services Covered by the Act

Three types of electronic services are covered by the Act:

• "social media service";
• "relevant electronic service";
• "designated internet service".

The Minister can put a service that doesn't meet the criteria to be there into one of those categories, but whether or not they can put a service that does meet the criteria to be in a category out of it depends on which category. "Exempt services", where material posted is inaccessible and undelivered to all Australian end-users, are not covered by this Act.

Social Media Service

A service falls into this category whose "sole or primary purpose of the service is to enable online social interaction between 2 or more end‑users" or "share material for social purposes" and that "allows end‑users to link to, or interact with, some or all of the other end‑users" and "post material on the service".

The Minister can declare services that would otherwise fall into this category to be exempt services (13).

Relevant Electronic Service

A service falls into this category that is an email, instant messaging, SMS, MMS, chat, or online game service.

The Minister cannot declare services that would otherwise fall into this category to be exempt services (13A).

Designated Internet Service

A service falls into this category that is an "internet carriage service" (or in English, ISP) (14), but not an "on-demand program service", which is a service that transmits commercial or subscription TV, ABC, or SBS broadcasts through the internet (18).

The Minister can declare services that would otherwise fall into this category to be exempt services .