The Government’s planned Children’s e-Safety Commissioner: Could it do anything about cyber-bullying content on smaller social media sites based overseas?

The Sydney Morning Herald online yesterday afternoon published an article by Ben Grubb which reports on a panel discussion held early last week, hosted by the NSW Law Society, on the subject “Cyber bullying: Individual rights in a digital age”. This morning a brief piece, summarised from Ben’s article, ran in the print edition.

Because not everybody who reads Ben’s piece (either the longer or the shorter version) will necessarily have followed all the twists and turns of this complex debate, I wanted to set out a couple of extra points in this blog post.

As Ben mentions, the Abbott Government is proposing to establish a new role of the Children’s e-Safety Commissioner.  This follows the policy we took to the 2013 election, ‘Enhancing Online Safety for Children.’ Since coming to government, we have been consulting widely in relation to the detailed implementation of this policy, including issuing a discussion paper in January this year seeking feedback on key issues of the policy.

I gave a speech recently at the Youth, Technology and Virtual Communities Conference which described our policy and the thinking behind it, and talked about some of the feedback we had received during the consultation.

Two key elements of our policy are:

• Establishing a Children's e-Safety Commissioner to take a national leadership role in online safety for children.
• Implementing 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.

In developing our policy, as I was at pains to emphasise in the panel discussion which Ben’s article reported on, we were conscious of the fundamental difficulty faced by the government of one country in trying to ‘regulate the internet’.  In short, no one country can make a law which applies to the entire internet – even if it wanted to.  While you might put provisions into Australian law which purported to have global application, they could in practical terms be ignored by a site operated from another country, assuming the site was small, and it did not do business in or have a connection with Australia.   This is a fundamental issue that national governments have needed to recognise since the internet first became a mass market consumer phenomenon in the late nineties.

That is the reason why our policy confines the operation of a complaints scheme, backed by legislation, to ‘large social media sites’ – that is, sites which have a large number of users in Australia.  As I explained in more detail in my speech at the Youth, Technology and Virtual Communities Conference, large social media sites are more likely to have employees and advertising revenue in Australia, and to have a substantial reputation in Australia, such that for both legal and corporate reputational reasons, they can be expected to comply with an Australian regulatory scheme.  At the same time, this approach will capture the sites where the majority of interactions involving children occurs.

I am often asked the question: how do we plan to deal with smaller social media sites, particularly those based overseas?  What is our framework going to do about Snapchat, or Ask.fm, or the next site which will explode out of nowhere?  Specifically, at the law society forum I was asked what formal powers the Children’s e-Safety Commissioner would have in relation to smaller social media sites – most (or all) of which would be based offshore.  It was my answer to this question which Ben’s story concentrates on. 

In my answer, I noted that the Children’s e-Safety Commissioner would not have any formal legislative sanctions it could apply to these small offshore sites, and any attempt to legislate such provisions would be an exercise in futility. However, I pointed out the government’s expectation that the Children’s e-Safety Commissioner would develop informal relationships with such sites – including from time to time seeking to visit the head offices of companies running the newly emerging social sites that were starting to have a presence in the lives of Australian children.   We would expect the Commissioner to communicate to such sites the expectation of the Australian government that social media sites accessible to Australian children would have terms of use that banned cyberbullying (as all major sites today do); a means by which complaints could be made to the site that a child had been the victim of cyberbullying on the site; and a contact point for the Commissioner to engage with.  In addition, I pointed out that a significant role for the Commissioner would be as a trusted source of advice for parents, schools and kids – and that would include stating publicly, if the Commissioner judged it appropriate, that a particular social media site had failed to co-operate or was not a safe place for children to go.

One further point to make: the arrangements we are proposing, where they do have formal legal effect (that is, in relation to a large social media site) will be carefully limited in two significant ways to minimise any threat to free speech.  First, these measures will apply only to communications directed at children; they have no impact on speech between adults. The second limitation is that the scheme applies specifically to cyberbullying, that is content targeted at and harmful to a specific Australian child. It is not a general content regulation scheme. 

Finally, in a speech I gave last week, I explained some of the findings of recent research commissioned by the government about the extent and impact of cyberbullying amongst children – which helps to explain why the Abbott government believes this is an important area for action.