To print this article, all you need is to be registered or login on Mondaq.com.
Federal laws which came into effect earlier this year give the
Australian eSafety Commissioner sweeping powers to gather
information about those who post
abusive, abhorrent or threatening content – including the
identities behind pseudonyms – and compel internet companies
to remove the content under threat of heavy fines and
What do these
new laws mean for users?
The good news for those who are the target of such content is
that the laws are designed to make reporting much easier and
removal much quicker.
Reporting can be done anonymously through the e-Safety website
and you can go straight to the e-Safety Commission without having
to report the content to the internet company first.
Most apps and websites and social media platforms have ways
which you can report offensive or illegal material or behaviour
that feels unsafe – although in many cases, people who have
asked platforms for assistance have complained that action can be
slow, although Australia’s new laws are designed to encourage
these global tech giants to act more quickly, by reducing the
timeframe for response to ‘take down’ requests to 24
If the material is not removed civil penalties can be imposed,
including fines up to $111,000 for individuals and $555,000 for
companies – the penalties apply to the person who posted the
material and also the provider of the platform where it
While your first instinct might be to delete messages or other
content and block the user, ironically, police and other cyber
safety experts suggest that while you should stop communicating,
you should also take screenshots, and if you can, leave the account
open, this makes it easier for investigators to follow up your
The legislation has been criticised as being overly harsh, but
it was specifically designed to protect our most vulnerable users
– children. Research conducted by the eSafety Commissioner in
2018 found that 81% of children were online by the age of 5.
The pandemic, of course, and lockdowns forced us to all spend
more time on work, socialising, working, shopping and schooling.
During this period cybercrime – in particular trolling,
bullying and online sex offences also increased, and there was a
substantial increase in
children’s negative experiences online.
With this in mind, the Commonwealth Online
Safety Act 2021 aims to better protect children interacting
online through the introduction of the Basic Online Safety
Expectations which includes such things as: taking reasonable steps
to minimise material or activity that is unlawful or harmful,
protecting children from content that is not age appropriate,
having effective user-reporting mechanisms, cooperating with other
service providers where necessary, and responding to requests for
information from the eSafety Commissioner.
Under the new legislation, the eSafety Commissioner has the
power to require social media services to report (both publicly and
to the regulator) on their actions to comply with the BOSE.
It can also impose financial penalties for failing to meet these
reporting obligations. The Online Safety Act applies to: social
media services, media sharing networks, discussion forums and
consumer review discussion groups. It applies to email, instant
messaging, SMS and chat services. It also applies to online games
and online dating services, as well as websites, apps, social
media, search engines, hosting services as well as internet service
providers and other carriage services.
What is restricted, illegal or offensive material?
Under the new cyber safety laws, the following content that
depicts the describes the following is considered unlawful:
- the sexual exploitation of children,
- terrorist acts,
- threats of violence, including but not limited to: such as
murder, attempted murder, kidnapping, and
- rape, torture and suicide.
Restricted content is considered material that is unsuitable for
children and youths (those under the age of 18 years) which may
include extreme or high impact violence, nudity, sexual acts.
In Australia, there is no specific offence for cyberbullying,
but it is becoming increasingly problematic and it can be difficult
However, section 474.17 of the Commonwealth Criminal Code 1995
criminalises he use of a
phone or the internet to threaten, harass or seriously offend
another person. The maximum penalty for the offence is 3
Other offensive or threatening online behaviour can fall under
specific Federal or State legislation which criminalise:
Image-based abuse, such as sextortion or
revenge porn are criminalised under the New South Wales Crimes
Act 1900 which contains the following offences.
Each offence carries a maximum penalty of 3 years in prison.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
POPULAR ARTICLES ON: Criminal Law from Australia