The Enhancing Online Safety for Children Bill 2014 (e-Safety Bill) was introduced to Australia's Federal Parliament on 3 December 2014. The e-Safety Bill aims to create an Office of the Children's e-Safety Commissioner within the Australian Communications and Media Authority ("ACMA"), which will have the power to order harmful content be taken down from large social media websites.
According to the e-Safety Bill, cyber-bullying material constitutes anything seen to be "seriously threatening, seriously intimidating, seriously harassing or seriously humiliating" to Australians under the age of 18. The definition excludes commercial and business communications, but does include a broad range of digital services including email, instant messaging and chat, short message services ("SMS") and multimedia messaging service ("MMS"), online gaming services, and large social media services that connect two or more users.
Social media services subject to the Bill
A social media service to which the Bill applies is any electronic service with the primary purpose of enabling online social interaction between two or more end-users. The e-Safety Bill sets out a two-tiered classification system for social media services, with different enforcement options available to the ACMA for regulating each tier.
Tier Two social media services are 'large social media services', which is assessed by reference to the number of accounts held by end-users who are Australian residents and who are Australian children. There is no numerical cut-off point, rather, the e-Safety Commissioner may make reasonable assumptions and estimates to determine whether a social media service is 'large'. Tier One social media services are all other social media services that are not in Tier Two. There are advantages for a social media service to be classified as Tier One because penalties under the e-Safety Bill only apply to Tier Two service providers.
Enforcement and compliance action under the e-Safety Bill
If a Tier Two service receives a notice requiring offending content to be removed from its site pursuant to the Bill, and fails to comply with that notice within 48 hours, it will be liable to pay a civil penalty of up to $17,000.
If a Tier One service receives a notice requiring offending content to be removed from its site pursuant to the Bill, and fails to comply with the notice within 48 hours, it may receive a further notice from the Commissioner requesting the content be removed in the next 48 hour time period. If the Tier One service receives multiple such notices over a 12 month period and fails to remove the offending content, its status as a Tier One service may be revoked and it may be converted to a Tier Two service by Ministerial Declaration, and therefore subject to the Tier Two civil penalty for any further cases of non-compliance with the Commissioner's directions to remove content.
Determining the "tier" status of a social media service
As discussed above, there are clear advantages for a social media service to be classified as a Tier One service under the e-Safety Bill. To become a Tier One service, a social media service must apply to the Minister of Communications for a Declaration that it is a Tier One service.
Tier Two status is also achieved by Ministerial Declaration. The Minister can only declare an entity to be a Tier Two service if the social media service has submitted an application for Tier Two status, or if, in the absence of an application from the service, the Minister is otherwise satisfied that the social media service is a 'large social media service', having giving the service at least 28 days prior notice of its ability to apply for Tier One status, which it did not utilise.
Impact of the e-Safety Bill on individuals who post cyber-bullying content
Proponents of the e-Safety Bill acknowledge that compliance may be difficult to enforce against large social media services that do not have an Australian presence, however the Bill's principal focus is on enforcing compliance against individual posters of cyber-bullying content rather than against social media services themselves.
There is scope under the e-Safety Bill to target individual offenders with "end-user notices" that require them to remove bullying material, stop further posts and apologise to victims, while serious matters may also be referred to the police.