Special Edition : 20 June 2023
Enforceable Online Safety Codes Registered by the eSafety Commissioner
Over the past 20 months, a group of six industry associations (comprised of Communications Alliance, BSA | the Software Alliance, the Australian Mobile Telecommunications Association (AMTA), the Consumer Electronics Suppliers Association (CESA), the Digital Industry Group Inc (DIGI) and the Interactive Games and Entertainment Association (IGEA)) has developed eight Codes of Practice to protect Australians from Class 1A and 1B content under Australia’s classification scheme.
The development of the Codes is based on the provisions of Part 9, Division 7, of the Online Safety Act and was requested by the eSafety Commissioner.
On 31 March 2023, the group of industry associations submitted the Consolidated Industry Codes of Practice for the Online Industry, Phase 1 (class 1A and class 1B material) for registration to the Office of the eSafety Commissioner. The submitted Codes cover participants across eight key sections of the online industry specified in the Online Safety Act (see below).
Outcome summary: five Codes were registered by the eSafety Commissioner, two Codes were rejected for registration (Standards are being developed), and the decision on the Search Engine Services Code was deferred.
1. On 16 June 2023, the eSafety Commissioner formally registered the following five Codes:
Each of the Codes consists of Head Terms (identical for all five Codes) and a Schedule listing the requirements specific to the respective online section.
The registered Codes will become enforceable by the Office of the eSafety Commissioner six months after registration, i.e., on 16 December 2023. Providers of services/equipment who have reasonable grounds for not being fully compliant – such as where significant engineering or system changes are required to comply with a specific requirement a Code – may have an additional six months to comply with that requirement.
What online material is covered by the Codes?
Broadly speaking, the online material covered under the eight Codes is child sexual exploitation and pro-terror material, as well as material that deals with crime and violence, and drug-related content.
The following five online sections are covered by the Codes:
Do I need to comply – are my services covered?
While each registered Code applies to the entire online section, not all services/equipment in that online section face additional compliance requirements. Roughly speaking, compliance requirements depend on the risk of harm from Class 1A and 1B material associated with a respective service/equipment. Providers of relevant services or those covered by the Equipment Code are advised to check the respective Codes to understand whether further compliance activities for each of their services/equipment are required.
The Preamble of the Head Terms (and other sections of the Head Terms) also provides useful guidance in relation to the applicability of the Codes.
If your services/equipment are covered by a Code, then you are, depending on the Code, either required to undertake a risk assessment and, following that risk assessment, compliance measures in accordance with your respective risk category apply. Alternatively, for Codes where no risk assessment is required, compliance measures for different types of services/equipment apply.
2. The eSafety Commissioner declined to register the
that the group of industry associations had submitted as part of the Consolidated Industry Codes of Practice, on the basis that these two Codes fail to provide appropriate community safeguards in relation to matters that are of substantial relevance to the community.
The Office of the eSafety Commissioner will now move to develop mandatory and enforceable Industry Standards for Relevant Electronic Services and Designated Internet Services.
The draft Standards, once developed by the Office of the eSafety Commissioner, will be subject to a public consultation period of at least 30 days. Providers of Relevant Electronic Services and Designated Internet Services are advised to monitor the website of Office of the eSafety Commissioner for further developments.3. The eSafety Commissioner reserved a decision on the Search Engine Services Code to allow industry to reflect recent developments in relation to generative AI. The industry associations will submit a revised Search Engine Services Code in late June. The eSafety Commissioner will then decide whether to register this Code as a sixth enforceable Code or whether to proceed to developing a mandatory and enforceable Industry Standard for this online section.
Further information on the Codes development process and copies of the registered Codes can be found on https://onlinesafety.org.au/. The Office of the eSafety Commissioner also keeps a public register of registered Industry Codes and Standards.
Below is a list of currently open telecommunications-related consultations being conducted by Government and other organisations that provide an opportunity for you to have your say.