Bill Shorten’s criticism of Coalition’s online safety legislation is odd – and wrong

It is very odd that Bill Shorten is today criticising the Coalition’s measures to protect children against cyberbullying, contained in the Enhancing Online Safety for Children Act - which passed the parliament last week with bipartisan support.

According to a story in today’s Daily Telegraph online, Labor leader Bill Shorten claims that the Coalition has ‘shelved’ or ‘junked’ the measures we promised before the 2013 election.

Our promise was to implement an effective complaints system, backed by legislation, to get material targeted at and harmful to an Australian child, down quickly from large social media sites.

The Act which has just been passed delivers on our promise and establishes this system – and sets up the new office of the Children’s E-Safety Commissioner.

The way the system will work is that if a child has been the subject of cyberbullying on a large social media service, a complaint must first be made to the service using its normal procedures.  However, if there is no response within 48 hours, then Children’s E-Safety Commissioner has the power to act.  If the Commissioner determines that the material is cyberbullying, it can issue a notice to the large social media service requiring that the material be taken down.

The Act provides for two tiers of regulation.  Large social media services such as Facebook or Twitter can choose to participate voluntarily in ‘tier 1’.  While in tier 1, a notice is not legally binding.

However, if a large social media service repeatedly fails to comply with notices over a twelve month period, the Act says the social media service can be moved to tier 2 – at which point notices do become legally binding and there is a fine of up to $17,000 a day if a large social media service receives a notice and fails to take down the material.

This system means that there is light touch regulation as long as companies are compliant with directions from the Children’s E-Safety Commissioner – but if they are not compliant, then the Commissioner has a very big stick to use, by moving the service into tier 2.

It also means that large social media services have a very strong incentive to comply with notices which are issued when they are in tier 1 – because they know that if they fail to comply, then they face being moved to tier 2. 

Far from large social media services being able to “evade” the powers of the Commissioner as the Daily Telegraph story incorrectly states, large social media services will need to comply with notices issued by the Commissioner – or they will face significant sanctions including (while they are in tier 1) being moved into tier 2, and (if they are in tier 2) incurring large daily fines for failure to remove cyberbullying material the subject of a notice.  In addition of course there will be a significant adverse reputational impact on a large social media service which is moved from tier 1 to tier 2.  In other words, the only way to “evade” being legally required to comply with the Commissioner’s rulings is to consistently comply on a voluntary basis. 

Oddly, Bill Shorten now seems to be saying that because the Act contains this carefully developed and effective regulatory tool, then in some way the Coalition has ‘shelved’ or ‘junked’ our commitment.  He is wrong.

Even more odd is that if Labor thought there was a problem with this feature of the legislation, it failed to mention its concerns in the lengthy debates in both the House of Representatives and the Senate over the past two sitting weeks, or to move an amendment which would have varied the provisions of the Bill to take a different regulatory approach, or to vote against the Bill.  Labor instead supported the Bill – something which I welcome.