Speech to the Protecting Children and Youth Online Conference

I am pleased to be with you at this important event.

Thank you to Matthew Keeley for the introduction, and for the important work you do at the National Children’s and Youth Law Centre in helping to protect Australian children in the internet age.

Today I’d like to discuss the Coalition Government’s approach to enhancing online safety for children. First, I’d like to speak about the policy journey we’ve taken up to this point – and the evidence base underpinning our policy proposals in this area.

Next I’ll talk about how we see the proposed new office of the Children’s e-Safety Commissioner working – and give an update on the legislative regime we are working to put in place.

Finally, I’ll outline the path ahead – the appointment of the Commissioner, the establishment of the office, and the Commissioner’s role in relation to education programmes delivered through schools.

The journey to here

Work in Opposition to Develop Our Policy

Let me start, then, by making the point that the Coalition has worked over a number of years, in opposition and government, on our plans to enhance online safety for children.

We took a policy to the 2013 election – but its genesis goes back to 2012, when then-opposition leader Tony Abbott established the Coalition Online Safety Working Group and asked me to chair it. 

Our group consulted extensively, all around Australia, with teachers, with parents – and with children between the ages of five and seventeen.

We released a discussion paper which received submissions from a wide range of groups including child welfare organisations, teachers and schools, and families who had been impacted by cyberbullying.

Some very clear conclusions emerged from this consultation work.

Australian children are immersing themselves in the online world through social media sites, online games, smartphones and tablets.

The great majority of teenagers are using social media.  If you ask a class of 15 year olds if they are on Facebook or one of the other major social media services, typically every hand but one or two goes up.

Even amongst children as young as ten or eleven, a large number report that they use these services - despite most sites having a policy that users must be at least thirteen.

Social media is creating a very substantial new workload for school principals and teachers, as well as parents. 

An important part of the Coalition’s policy work was to carefully review the evidence about the pervasiveness, and seriousness, of cyber-bullying.

Cyber-bullying occurs in a variety of ways, through a range of digital devices and mediums, most commonly smartphones and social media sites.[1]

The posting of humiliating or harmful photos, videos, or rumours is often exacerbated by other social media features (such as ‘comments’, ‘shares’ and ‘likes’) which can rapidly promote and spread the damaging content.

Cyber-bullying can have very serious effects, including anxiety, depression, behavioural problems and even suicidal thoughts.

It is also clear that many children – and the parents or teachers to whom they turn to for help – are unsure of what to do when they have been the victim of cyber-bullying. 

The evidence strongly suggests that the remedy children want more than anything else in this situation is simply to get the harmful material down quickly,  but it can be difficult to get this done. 

These and many other issues were raised with the Online Safety Working Group and considered by the Coalition as part of an extensive consultation process.

The culmination of the work completed in Opposition was the release of our policy during the election campaign, in which we committed to a series of practical measures to support parents and educators in creating a safer online environment for all Australian children:

• 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.
• Investigating options for a simplified cyber-bullying offence.
• In consultation with industry, improving safety options on smartphones, other devices and internet access services.
• Establishing an advice platform with guidelines for parents about the appropriateness of individual media items for children.
• Improved support for schools through a stronger online safety component within the National Safe Schools Framework, funding of $7.5 million for schools to access online safety programmes and the certification of online safety programmes.
• Providing funding to support Australian based research and information campaigns on online safety.

After election: Public consultation on policy

Following last year’s election, the Government released a public discussion paper in January of this year seeking feedback on several of the measures which required legislative implementation.

More than 80 submissions were received from a range of stakeholders including community organisations, industry, education bodies, government bodies, legal bodies, academics and individuals.

The response was overwhelmingly positive, with many organisations supporting the proposal to establish a Children's e-Safety Commissioner and the rapid-takedown system.

Some groups raised concerns that a rapid-removal scheme for cyberbullying content could pose a threat to freedom of speech, while others questioned the efficacy of a scheme which focussed on large social media sites and left smaller, newer sites unregulated.

I have directly addressed these concerns in previous speeches, and throughout the year I have met with stakeholders who will be impacted by the proposed measures to ensure that any new regulations are light-touch, but also effective in protecting children online.

Evidence of the gap

Research paper on cyber-bullying – summary of findings

Following the release of the discussion paper, another milestone in the policy development process was the release, earlier this year, of new research on the prevalence and impact of cyberbullying.

While the Government’s consultations had revealed ample anecdotal evidence of the effects of cyberbullying, there was little quantitative evidence to back up these examples.

To better understand the scale of the problem, we commissioned a report by a consortium of researchers led by the University of NSW Social Policy Research Centre and including the University of South Australia, the University of Western Sydney, the Young and Well Cooperative Research Centre and the National Children’s and Youth Law Centre.

The key findings of this research highlighted that there is a clear gap between the prevalence of cyberbullying and the current legal remedies available.

Number of children being cyberbullied, rate of bullying in schools

The research team concluded that the best estimate of the prevalence of cyber-bullying over a 12 month period is 20 per cent of Australians aged 8-17, with some studies putting that figure as low as 6 per cent and others as high as 40 per cent. This is within the range of estimates of other international studies.[2]

This estimate is consistent with previous work done by the ACMA, which found that 21 per cent of 14-15 year-olds and 16 per cent of 16-17 year-olds had reported being cyber-bullied.[3]

Cyber-bullying was most prominent in children aged between 10-15, with prevalence decreasing for the 16-17 age bracket.[4]

These figures mean that the estimated number of children and young people who have been victims of cyber-bullying last year is 463,000, with around 365,000 in the 10-15 age group.[5]

The research found that most incidents of cyber-bullying occurred on social media[6] - and that the prevalence of cyber-bullying has “rapidly increased” since it first emerged as a behaviour.[7]

A second report as part of the research project involved a survey of schools.

87 per cent of secondary schools reported at least once instance of cyber-bullying in 2013, as did just under 60 per cent of primary schools.[8]

Removing outlying data, the survey found the average number of cyber-bullying cases reported to a secondary school in 2013 was 22.8.[9]

Schools are working hard to respond, with the research finding that over 83 per cent of schools had a system or policy in place for managing cyber-bullying incidents.[10]

In their responses, schools typically said they had a multi-faceted approach including contacting parents, counselling of all involved parties, warning notices, class discussions, formal punishments according to school policy, and in extreme cases, referral to police.[11]

Cases referred to police were more likely to involve sexting resulting from coercion, intimidation, blackmail, sharing of images or video which was unauthorised by a victim, hate websites or social media pages, and anonymous cyber-bullying.[12]

Lack of awareness of laws around cyber-bullying

The third and final piece of the research saw a survey conducted among young people aged 10-17 to find out how much they knew about the laws which apply to cyber-bullying – and what the consequences might be. 

The research indicated that there is a great deal of uncertainty and confusion about criminal offences related to cyber-bullying. 

There are both Commonwealth and State laws which are applicable to cyber-bullying. For example, section 474.15 of the Commonwealth Criminal Code deals with ‘using a carriage service to make a threat’ and section 474.17 deals with ‘using a carriage service to menace, harass or cause offence.’

There is a significant disconnect between this reality and the response of young people to this survey, with only 69 per cent agreeing that menacing, harassing, offensive or threatening behaviours constituted a crime.[13]

Significantly, only 63 per cent of young people considered it to be cyber-bullying if harmful content was ‘liked’ or ‘shared’ – suggesting that young people don’t consider it to be cyber-bullying behaviour if they are not the original perpetrator.[14]

When asked who they would turn to in reporting cyber-bullying, 90 per cent said family, 76 per cent friends, and 75 per cent schools. Only 49 per cent indicated they would make the report to social media sites, 44 per cent to cyber-bullying websites and 40 per cent to help lines.[15]

While only 36 per cent said they would report cyber-bullying to police, 72 per cent considered that police would be able to do something about cyber-bullying.[16]

Police often reluctant to use laws on cyber-bullying between children

Adding to the gap between the pervasiveness of cyberbullying and difficulties in addressing the issue, the research found that police would typically only act on more serious cases – preferring the less serious cases to be dealt with by schools or other agencies.

The researchers found that police tended to issue warnings to perpetrators in the first instance. For more serious cases, police encouraged victims to take out an apprehended violence order (AVO) or requested social media providers remove harmful material.[17]

That said, while it was noted that police used criminal sanctions in “very few” cases, police involvement was seen to provide a strong deterrent effect.

In summary, the research predominantly supported the findings of the consultation process carried out by the Coalition Online Safety Working Group and the anecdotal evidence we had received up to this point.

Importantly, the research found that respondents “clearly favoured the creation of an e-Safety Commissioner to oversee rapid take-down and act where a social network site or a cyberbully have not taken down cyberbullying content on request.”[18]

How we see the Children’s e-Safety Commissioner Working

With the research and public consultation process completed, the Government has continued to engage with relevant stakeholders and is now in a position where we are preparing legislation to be ready for introduction into Parliament by the end of this year.

This legislation will establish the Office of the Children’s e-Safety Commissioner and will lay out the mechanism for an effective complaints system, backed by legislation, to get cyberbullying material targeted at and harmful to an Australian child, down quickly from large social media sites.

Today, I’d like to give some additional detail on how we envisage this taking place.

Sits within ACMA, existing ACMA cyber safety functions moved into CESC

First, we are proposing the Commissioner to be an ongoing, independent statutory office within the Australian Communications and Media Authority.

As we had noted in our policy document and discussion paper, the Commissioner’s office will be a single point of contact for online safety issues for industry, Australian children and those charged with their welfare.

From the outset we have said there is a need for the Commissioner to take the lead in developing and implementing online safety policies for children, and to be responsible for the improved coordination of content and messages around online safety.

With this is mind, all existing online safety initiatives in the Department of Communications and the ACMA will be transferred to the Commissioner.

How a Two-Tier scheme for large social media sites will work

To give effect to our policy commitment, to have an effective complaints system, backed by legislation, to get cyberbullying material targeted at an Australian child, down quickly from large social media sites, the legislation will provide for a two tier scheme.

In essence, tier 1 involves voluntary participation by large social media services; but if that does not work satisfactorily, there will be the capacity to move the service onto tier 2, where there will be a formal legal requirement and civil penalties for a failure to comply.

Social media services will be able to apply to participate under Tier 1 of the scheme, participating on a cooperative basis and will not be subject to legally binding notices or penalties.

I expect that the large social media services, which generally have a robust, well-established mechanism for handling complaints, will apply for and be granted Tier 1 status.

Where a social media service is in Tier 1, and a child – or a parent or guardian on the child’s behalf – complains about being the victim of cyberbullying material on the service, the first step will be to make the complaint to the service.

If the service does not adequately resolve the issue in a timely manner, the complainant can then go to the Commissioner.

If the Commissioner is satisfied that the complaint is a valid one – that is, the material is cyberbullying – then the Commissioner will request the social media service to remove the cyber-bullying material.

However, at this point, there will be no legal obligation on the service to comply with the request.

The key sanction however is the threat of being moved to Tier 2 status.

If a large social media service which is in Tier 1 repeatedly fails to remove cyber-bullying material following requests from the Commissioner over a period of 12 months, the Commissioner will have the power to recommend to the Minister that the service be declared a Tier 2 social media service.

A Tier 2 social media service will be legally required to comply with a notice issued by the Commissioner to remove cyber-bullying material or face civil penalties.

We believe that this two tier scheme allows for a light touch regulatory scheme in circumstances where the social media service has an effective complaints scheme and it is working well; but it gives the government real teeth to require that cyberbullying material be removed in circumstances where a social media service does not have an effective and well-resourced complaints system.

Informal contact with overseas-based sites which cannot be subject to local laws

Throughout the policy development process, I have often been asked what power the Commissioner will have over small or emerging social media services which are often based overseas.

Snapchat and Ask.FM are the two most frequent examples raised – but of course the industry operates at such a pace it is impossible to judge where the ‘next big thing’ might come from.

Now as a formal legal matter is it simply not possible to legislate in a way that applies to a small site, based overseas, that does not have a connection with Australia.

That is 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.  

Large social media sites are more likely to have employees and advertising revenue in Australia, and to have a substantial reputation in Australia. For both legal and corporate reputational reasons, such sites 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 occur.

So with smaller sites we will be pursuing an informal, rather than a strict legal, approach.

The Government expects that the Children’s e-Safety Commissioner will develop informal relationships with such services – including from time to time seeking to visit the head offices of companies running newly emerging social services starting to have a presence in the lives of Australian children.

We expect the Commissioner to communicate to such services the expectation of the Australian Government that social media sites accessible to Australian children would have terms of use that banned cyber-bullying; a means by which complaints could be made to the service that a child had been the victim of cyber-bullying on the site; and a contact point for the Commissioner to engage with. 

By building relationships with overseas-based sites, the Commissioner is likely in many cases to be able to achieve the desired policy intention – even without formal legislative power.

In addition, a significant role for the Commissioner will be as a trusted source of advice for parents, schools and kids – and that will include stating publicly, if the Commissioner judged it appropriate, that a particular social media service had failed to co-operate or was not a safe place for children to go.

Ability to serve notices to bullies

A further element of the framework, as foreshadowed in the discussion paper issued in January, will be a power for the Commissioner to issue a notice against a person who has posted cyberbullying material targeted at an Australian child.

This notice – which we intend to call, imaginatively, an ‘end user notice’ – will for example require the end user who posted the material to remove it; to refrain from posting more such material; or to apologise to the victim.

We have drawn on a number of models in developing this mechanism.  One is the provisions in the planned New Zealand legislation dealing with cyberbullying.

Another is the experience of the National Children’s & Youth Law Centre based at the University of New South Wales.  They have found that in many cases a formal written request to cease cyber-bullying behaviour, issued by their service, resolves the issue.

The legislation will not include the power for the Commissioner to fine end users who fail to respond to a notice, because we are wary of imposing fines on children.  Rather, the next steps available to the Commissioner, if the recipient of the notice fails to respond, will include going to court to seek an injunction; and referring the matter to the police.

CESC to act as a triage point for cyber-bullying complaints

This brings me to what we see as an important function of the Commissioner: acting as a triaging point for complaints, and improving the effectiveness of the process by which a child who has been the victim of cyberbullying can bring a complaint to either the large social media service where the cyberbullying material was posted – or if necessary the police.

As a first step the complainant will be directed to the large social media service so that the complaint can be reported to the service under its established processes.

We expect that in circumstances where a large social media service fails to respond to a complaint, and the matter is then raised with it by the Children’s e-Safety Commissioner, it is likely that the service will be responsive. 

After all, the service will know that, before the Commissioner raises the matter with it, the Commissioner will have formed a view that the content does constitute cyberbullying material.

Equally, if the Children’s E-Safety Commissioner has acted as an initial screening point, it is likely that matters it refers to the police will be taken seriously.

This will help to address a difficulty which was often raised with us in consultations – that when a child or parent takes a cyberbullying complaint to police, often the police are reluctant to act.

Of course, through the use of the tools we are providing it with, the Commissioner should be able to resolve many issues without needing to involve the police.

ACMA’s online content scheme to be included in CESC role

The Commissioner will also take on responsibility for administering the current Online Content Scheme under Schedules 5 and 7 to the Broadcasting Services Act 1992.

This content regime has been in place for many years and is not changing – we are simply moving it to the Children’s e-Safety Commissioner for administrative convenience. 

It is quite separate from, and should not be confused with, the commissioner’s role in facilitating the removal of cyberbullying content targeted at children.

The way ahead

Legislation to be ready for introduction to Parliament by the end of the year

Having described how we see the Children’s e-Safety Commissioner working, I would like to outline the way ahead.

The Government is currently preparing legislation, and we aim to have that legislation ready for introduction into Parliament by the end of the year.  Before that point we will hold a targeted consultation process, sharing an exposure draft with key stakeholders and seeking their views.

We have already allocated $10 million towards our policy commitments in the May budget, including:

• $2.4 million to establish and operate the Office of the Children’s e‐Safety Commissioner (the Commissioner) to take a leadership role in online safety;
• $7.5 million to assist schools to access accredited online safety programmes; and
• $0.1 million to support Australian‐based research and information campaigns on online safety.

Working with stakeholders on details of legislation

In developing the legislation, the Government has had extensive discussions with large social media services, child welfare organisations, schools, law enforcement agencies and other key stakeholders – and these are continuing.

The Government welcomes the constructive engagement from these companies.

This has been designed from the outset as light-touch regulation. The Government is working with stakeholders to ensure the scheme does not unnecessarily impose extra cost or process burdens. We recognise that the large social media services affected by the scheme are global organisations with hundreds of millions of users, and billions of items of content being posted every day.

In discussions with the large social media services about the detailed operation of the scheme, the focus has been on addressing the key community concern which underpins the Government’s policy: namely, the difficulty that can be experienced, when a child is the victim of harmful cyber-bullying material posted on a large social media site, in having that material removed. 

Search has begun to appoint the CESC – overview of the selection criteria for the CESC

The Government has begun the process to appoint a suitably qualified person to this new public office.

A search process is underway and the initial response has been very encouraging, with a number of strong candidates coming forward – both local and international.

I am keen to have someone in this role who is familiar with social media services and other consumer services provided over the internet; and who has a capacity to engage with key stakeholders in online safety.

I hope we can have someone established in this role during the first quarter of 2015.

$7.5m for online safety programmes in schools

Finally, the Commissioner will have a role to play in certifying online safety programmes to be delivered in schools.

The Government has provided $7.5 million in funding for such programmes.

There are already a wide range of programmes being delivered to schools today by private-sector operators, not-for-profits and non-government organisations – so we do not see much point in developing new programmes.

Rather, there will be a light touch process to certify existing programmes – with schools able to choose any certified programme in spending the money they receive under this programme.

Conclusion

Let me conclude by thanking the many people and organisations who have supported this policy commitment and played a role in its development.

We have done a lot of work to date – and we are getting increasingly close to getting the new office established, as well as introducing the legislation to establish the powers that the Children’s E-Safety Commissioner will exercise.

I am confident that these new arrangements will make a significant difference in keeping Australian children as safe as possible online.

[1]Srivastava, Gamble & Boey, Cyber-bullying in Australia: Clarifying the Problem, Considering the Solutions, International Journal of Children’s Rights 21 (2013) 25-45, May 2013, pg. 29

[2] UNSW ‘Research on youth exposure to, and management of, cyber-bullying incidents in Australia’, Synthesis Report, p2

[3] Australian Communications and Media Authority, Like, post, share: Young Australians’ experience of social media - Quantitative research report, 2013, pg. 10

[4] UNSW ‘Research on youth exposure to, and management of, cyber-bullying incidents in Australia’ Part B: Cyber-bullying incidents involving Australian minors, the nature of the incidents and how they are currently dealt with, p2

[5] UNSW Synthesis Report, p2

[6] UNSW Synthesis Report, p5

[7] UNSW Synthesis Report, p2

[8] IRIS Research, p13

[9] IRIS Research, p15

[10] IRIS Research, p3

[11] IRIS Research, p2

[12] IRIS Research, p20

[13] GfK Report: ‘Youth awareness of cyber-bullying as a criminal offence’, p2

[14] GfK Report, p26

[15] GfK Report, p34

[16] GfK Report, p35

[17] UNSW Synthesis Report, p6

[18] UNSW Synthesis Report p15