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Table Of Contents
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-
Bill
- Part 1—Preliminary
- Part 2—eSafety Commissioner
- Part 3—Complaints, objections and investigations
- Part 4—Basic online safety expectations
- Part 5—Cyber-bullying material targeted at an Australian child
- Part 6—Non-consensual sharing of intimate images
- Part 7—Cyber-abuse material targeted at an Australian adult
- Part 8—Material that depicts abhorrent violent conduct
- Part 9—Online content scheme
- Division 2—Removal notices relating to class 1
material
- 109 Removal notice given to the provider of a social media service, relevant electronic service or designated internet service
- 110 Removal notice given to a hosting service provider
- 111 Compliance with removal notice
- 112 Formal warning
- 113 Revocation of removal notice
- 113A Service provider notifications
- Division 3—Removal notices relating to class 2
material
- 114 Removal notice given to the provider of a social media service, relevant electronic service or designated internet service
- 115 Removal notice given to a hosting service provider
- 116 Compliance with removal notice
- 117 Formal warning
- 118 Revocation of removal notice
- 118A Service provider notifications
- 119 Remedial notice given to the provider of a social media service, relevant electronic service or designated internet service
- 120 Remedial notice given to a hosting service provider
- 121 Compliance with remedial notice
- 122 Formal warning
- 123 Revocation of remedial notice
- 123A Service provider notifications
- 132 Industry codes
- 133 Industry standards
- 134 Online activity
- 135 Sections of the online industry
- 136 Participants in a section of the online industry
- 137 Statement of regulatory policy
- 138 Examples of matters that may be dealt with by industry codes and industry standards
- 139 Escalation of complaints
- 140 Registration of industry codes
- 141 Commissioner may request codes
- 142 Replacement of industry codes
- 143 Compliance with industry codes
- 144 Formal warnings—breach of industry codes
- 145 Commissioner may determine an industry standard
- 146 Compliance with industry standards
- 147 Formal warnings—breach of industry standards
- 148 Public consultation on industry standards
- 149 Commissioner to maintain Register of industry codes and industry standards
- 150 Industry standards prevail over inconsistent industry codes
- 156 Federal Court may order a person to cease providing a social media service
- 157 Federal Court may order a person to cease providing a relevant electronic service
- 158 Federal Court may order a person to cease providing a designated internet service
- 159 Federal Court may order a person to cease supplying an internet carriage service
Part 9 — Online content scheme
105 Simplified outline of this Part
⢠The provider of a social media service, relevant electronic service or designated internet service may be given a notice (a removal notice ) requiring the provider to remove certain material.
⢠A hosting service provider may be given a notice (a removal notice ) requiring the provider to cease hosting certain material.
⢠The provider of an internet search engine service may be given a notice (a link deletion notice ) requiring the provider to cease providing a link to certain material.
⢠The provider of an app distribution service may be given a notice (an app removal notice ) requiring the provider to cease enabling end-users to download an app that facilitates the posting of certain material on a social media service, relevant electronic service or designated internet service.
⢠Bodies and associations that represent sections of the online industry may develop industry codes.
⢠The Commissioner may make an industry standard.
⢠The Commissioner may make service provider determinations regulating service providers in the online industry.
(1) For the purposes of this Act, class 1 material means:
(a) material where the following conditions are satisfied:
(i) the material is a film or the contents of a film;
(ii) the film has been classified as RC by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ; or
(b) material where the following conditions are satisfied:
(i) the material is a film or the contents of a film;
(ii) the film has not been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ;
(iii) if the film were to be classified by the Classification Board under that Act—the film would be likely to be classified as RC; or
(c) material where the following conditions are satisfied:
(i) the material is a publication or the contents of a publication;
(ii) the publication has been classified as RC by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ; or
(d) material where the following conditions are satisfied:
(i) the material is a publication or the contents of a publication;
(ii) the publication has not been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ;
(iii) if the publication were to be classified by the Classification Board under that Act—the publication would be likely to be classified as RC; or
(e) material where the following conditions are satisfied:
(i) the material is a computer game;
(ii) the computer game has been classified as RC by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ; or
(f) material where the following conditions are satisfied:
(i) the material is a computer game;
(ii) the computer game has not been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ;
(iii) if the computer game were to be classified by the Classification Board under that Act—the computer game would be likely to be classified as RC; or
(g) material where the following conditions are satisfied:
(i) the material is not a film, the contents of a film, a computer game, a publication or the contents of a publication;
(ii) if the material were to be classified by the Classification Board in a corresponding way to the way in which a film would be classified under the Classification (Publications, Films and Computer Games) Act 1995 —the material would be likely to be classified as RC.
Note: See also section 160 (Commissioner may obtain advice from the Classification Board).
(2) Section 22CF of the Classification (Publications, Films and Computer Games) Act 1995 (which deals with classification using an approved classification tool) applies for the purposes of this section in a corresponding way to the way in which it applies for the purposes of that Act.
(1) For the purposes of this Act, class 2 material means:
(a) material where the following conditions are satisfied:
(i) the material is a film or the contents of a film;
(ii) the film has been classified as X 18+ by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ; or
(b) material where the following conditions are satisfied:
(i) the material is a film or the contents of a film;
(ii) the film has not been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ;
(iii) if the film were to be classified by the Classification Board under that Act—the film would be likely to be classified as X 18+; or
(c) material where the following conditions are satisfied:
(i) the material is a publication or the contents of a publication;
(ii) the publication has been classified as Category 2 restricted by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ; or
(d) material where the following conditions are satisfied:
(i) the material is a publication or the contents of a publication;
(ii) the publication has not been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ;
(iii) if the publication were to be classified by the Classification Board under that Act—the publication would be likely to be classified as Category 2 restricted; or
(e) material where the following conditions are satisfied:
(i) the material is not a film, the contents of a film, a computer game, a publication or the contents of a publication;
(ii) if the material were to be classified by the Classification Board in a corresponding way to the way in which a film would be classified under the Classification (Publications, Films and Computer Games) Act 1995 —the material would be likely to be classified as X 18+; or
(f) material where the following conditions are satisfied:
(i) the material is a film or the contents of a film;
(ii) the film has been classified as R 18+ by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ; or
(g) material where the following conditions are satisfied:
(i) the material is a film or the contents of a film;
(ii) the film has not been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ;
(iii) if the film were to be classified by the Classification Board under that Act—the film would be likely to be classified as R 18+; or
(h) material where the following conditions are satisfied:
(i) the material is a publication or the contents of a publication;
(ii) the publication has been classified as Category 1 restricted by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ; or
(i) material where the following conditions are satisfied:
(i) the material is a publication or the contents of a publication;
(ii) the publication has not been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ;
(iii) if the publication were to be classified by the Classification Board under that Act—the publication would be likely to be classified as Category 1 restricted; or
(j) material where the following conditions are satisfied:
(i) the material is a computer game;
(ii) the computer game has been classified as R 18+ by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ; or
(k) material where the following conditions are satisfied:
(i) the material is a computer game;
(ii) the computer game has not been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 ;
(iii) if the computer game were to be classified by the Classification Board under that Act—the computer game would be likely to be classified as R 18+; or
(l) material where the following conditions are satisfied:
(i) the material is not a film, the contents of a film, a computer game, a publication or the contents of a publication;
(ii) if the material were to be classified by the Classification Board in a corresponding way to the way in which a film would be classified under the Classification (Publications, Films and Computer Games) Act 1995 —the material would be likely to be classified as R 18+.
Note: See also section 160 (Commissioner may obtain advice from the Classification Board).
(2) Section 22CF of the Classification (Publications, Films and Computer Games) Act 1995 (which deals with classification using an approved classification tool) applies for the purposes of this section in a corresponding way to the way in which it applies for the purposes of that Act.
(1) The Commissioner may, by legislative instrument, declare that a specified access-control system is a restricted access system in relation to material for the purposes of this Act.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .
(2) An instrument under subsection (1) may make different provision with respect to different kinds of material.
(3) Subsection (2) does not limit subsection 33(3A) of the Acts Interpretation Act 1901 .
(4) In making an instrument under subsection (1), the Commissioner must have regard to:
(a) the objective of protecting children from exposure to material that is unsuitable for children; and
(b) the extent to which the instrument would be likely to result in a financial or administrative burden on providers of the following services:
(i) social media services;
(ii) relevant electronic services;
(iii) designated internet services; and
(c) such other matters (if any) as the Commissioner considers relevant.
(5) The Commissioner must ensure that an instrument under subsection (1) is in force at all times after the commencement of this section.
Division 2 — Removal notices relating to class 1 material
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the material is or was class 1 material; and
(c) the material can be accessed by end-users in Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service;
the Commissioner may give the provider of the service a written notice, to be known as a removal notice , requiring the provider to:
(e) take all reasonable steps to ensure the removal of the material from the service; and
(f) do so within:
(i) 24 hours after the notice was given to the provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material must be identified in the removal notice in a way that is sufficient to enable the provider of the service to comply with the notice.
110 Removal notice given to a hosting service provider
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the material is or was class 1 material; and
(c) the material can be accessed by end-users in Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service; and
(e) the material is hosted by a hosting service provider;
the Commissioner may give the hosting service provider a written notice, to be known as a removal notice , requiring the provider to:
(f) take all reasonable steps to cease hosting the material; and
(g) do so within:
(i) 24 hours after the notice was given to the provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material must be identified in the removal notice in a way that is sufficient to enable the hosting service provider to comply with the notice.
111 Compliance with removal notice
A person must comply with a requirement under a removal notice given under section 109 or 110 to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The Commissioner may issue a formal warning if a person contravenes section 111.
113 Revocation of removal notice
If a removal notice is in force under section 109 or 110 in relation to:
(a) the provider of a social media service; or
(b) the provider of a relevant electronic service; or
(c) the provider of a designated internet service; or
(d) a hosting service provider;
the Commissioner may, by written notice given to the provider, revoke the removal notice.
113A Service provider notifications
If the Commissioner is satisfied that there were 2 or more occasions during the previous 12 months on which:
(a) class 1 material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material can be, or was able to be, accessed by end-users in Australia; and
(c) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service; and
(d) the provision of the material contravened the service’s terms of use;
the Commissioner may:
(e) prepare a statement to that effect; and
(f) publish the statement on the Commissioner’s website; and
(g) give a copy of the statement to the provider of the service.
Division 3 — Removal notices relating to class 2 material
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the material is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e); and
(c) the material can be accessed by end-users in Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service; and
(e) the service is provided from Australia;
the Commissioner may give the provider of the service a written notice, to be known as a removal notice , requiring the provider to:
(f) take all reasonable steps to ensure the removal of the material from the service; and
(g) do so within:
(i) 24 hours after the notice was given to the provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material must be identified in the removal notice in a way that is sufficient to enable the provider of the service to comply with the notice.
115 Removal notice given to a hosting service provider
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the material is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e); and
(c) the material can be accessed by end-users in Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service; and
(e) the material is hosted by a hosting service provider; and
(f) the material is hosted in Australia;
the Commissioner may give the hosting service provider a written notice, to be known as a removal notice , requiring the provider to:
(g) take all reasonable steps to cease hosting the material; and
(h) do so within:
(i) 24 hours after the notice was given to the provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material must be identified in the removal notice in a way that is sufficient to enable the hosting service provider to comply with the notice.
116 Compliance with removal notice
A person must comply with a requirement under a removal notice given under section 114 or 115 to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The Commissioner may issue a formal warning if a person contravenes section 116.
118 Revocation of removal notice
If a removal notice is in force under section 114 or 115 in relation to:
(a) the provider of a social media service; or
(b) the provider of a relevant electronic service; or
(c) the provider of a designated internet service; or
(d) a hosting service provider;
the Commissioner may, by written notice given to the provider, revoke the removal notice.
118A Service provider notifications
If the Commissioner is satisfied that there were 2 or more occasions during the previous 12 months on which:
(a) class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material can be, or was able to be, accessed by end-users in Australia; and
(c) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service; and
(d) the service is provided from Australia; and
(e) the provision of the material contravened the service’s terms of use;
the Commissioner may:
(f) prepare a statement to that effect; and
(g) publish the statement on the Commissioner’s website; and
(h) give a copy of the statement to the provider of the service.
Division 4 — Remedial notices relating to class 2 material
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the material is class 2 material covered by paragraph 107(1)(f), (g), (h), (i), (j), (k) or (l); and
(c) the material can be accessed by end-users in Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service; and
(e) the service is provided from Australia;
the Commissioner may give the provider of the service a written notice, to be known as a remedial notice , requiring the provider to:
(f) take all reasonable steps to ensure either of the following situations exist in relation to the material:
(i) the material is removed from the service;
(ii) access to the material is subject to a restricted access system; and
(g) do so within:
(i) 24 hours after the notice was given to the provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material must be identified in the remedial notice in a way that is sufficient to enable the provider of the service to comply with the notice.
120 Remedial notice given to a hosting service provider
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the material is class 2 material covered by paragraph 107(1)(f), (g), (h), (i), (j), (k) or (l); and
(c) the material can be accessed by end-users in Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service; and
(e) the material is hosted by a hosting service provider; and
(f) the material is hosted in Australia;
the Commissioner may give the hosting service provider a written notice, to be known as a remedial notice , requiring the provider to:
(g) take all reasonable steps to ensure either of the following situations exist in relation to the material:
(i) the service ceases to host the material;
(ii) access to the material is subject to a restricted access system; and
(h) do so within:
(i) 24 hours after the notice was given to the provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material must be identified in the remedial notice in a way that is sufficient to enable the hosting service provider to comply with the notice.
121 Compliance with remedial notice
A person must comply with a requirement under a remedial notice given under section 119 or 120 to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The Commissioner may issue a formal warning if a person contravenes section 121.
123 Revocation of remedial notice
If a remedial notice is in force under section 119 or 120 in relation to:
(a) the provider of a social media service; or
(b) the provider of a relevant electronic service; or
(c) the provider of a designated internet service; or
(d) a hosting service provider;
the Commissioner may, by written notice given to the provider, revoke the removal notice.
123A Service provider notifications
If the Commissioner is satisfied that there were 2 or more occasions during the previous 12 months on which:
(a) class 2 material covered by paragraph 107(1)(f), (g), (h), (i), (j), (k) or (l) is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material can be, or was able to be, accessed by end-users in Australia; and
(c) access to the material is not, or was not, subject to a restricted access system; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official-inquiry content service; and
(e) the service is provided from Australia; and
(f) the provision of the material contravened the service’s terms of use;
the Commissioner may:
(g) prepare a statement to that effect; and
(h) publish the statement on the Commissioner’s website; and
(i) give a copy of the statement to the provider of the service.
Division 5 — Link deletion notices
(1) If:
(a) a person provides an internet search engine service; and
(b) end-users in Australia can access class 1 material using a link provided by the service;
the Commissioner may give the provider of the service a written notice, to be known as a link deletion notice , requiring the provider to:
(c) cease providing a link to the material using the service; and
(d) do so within:
(i) 24 hours after the notice was given to the provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material must be identified in the link deletion notice in a way that is sufficient to enable the internet search engine service provider to cease providing a link to the material.
(3) The link deletion notice may also require the internet search engine service provider to:
(a) notify the Commissioner that the provider has ceased to provide a link to the material; and
(b) do so as soon as practicable after the cessation.
(4) The Commissioner must not give the link deletion notice unless:
(a) the Commissioner is satisfied that there were 2 or more times during the previous 12 months when end-users in Australia could access class 1 material using a link provided by the service; and
(b) during the previous 12 months:
(i) the Commissioner gave one or more removal notices under section 109 or 110 in relation to class 1 material that could be accessed using a link provided by the service; and
(ii) those removal notices were not complied with.
125 Compliance with link deletion notice
A person must comply with a requirement under a link deletion notice to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The Commissioner may issue a formal warning if a person contravenes section 125.
127 Revocation of link deletion notice
If a link deletion notice is in force relation to the provider of an internet search engine service, the Commissioner may, by written notice given to the provider, revoke the link deletion notice.
Division 6 — App removal notices
(1) If:
(a) a person provides an app distribution service; and
(b) the service enables end-users in Australia to download an app that facilitates the posting of class 1 material on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service;
the Commissioner may give the provider of the app distribution service a written notice, to be known as an app removal notice , requiring the provider to:
(c) cease enabling end-users in Australia to download the app using the service; and
(d) do so within:
(i) 24 hours after the notice was given to the provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material must be identified in the app removal notice in a way that is sufficient to enable the app distribution service provider to comply with the notice.
(3) The app removal notice may also require the app distribution service provider to:
(a) notify the Commissioner that the provider has ceased to enable end-users in Australia to download the app; and
(b) do so as soon as practicable after the cessation.
(4) The Commissioner must not give the app removal notice unless:
(a) the Commissioner is satisfied that there were 2 or more times during the previous 12 months when end-users in Australia could use the service to download an app that facilitates the posting of class 1 material; and
(b) during the previous 12 months:
(i) the Commissioner gave one or more removal notices under section 109 or 110 in relation to class 1 material, the posting of which is facilitated by the app; and
(ii) those removal notices were not complied with.
129 Compliance with app removal notice
A person must comply with a requirement under an app removal notice to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The Commissioner may issue a formal warning if a person contravenes section 129.
131 Revocation of app removal notice
If an app removal notice is in force in relation to the provider of an app distribution service, the Commissioner may, by written notice given to the provider, revoke the app removal notice.
Division 7 — Industry codes and industry standards
Subdivision A — Interpretation
For the purposes of this Division, an industry code is a code developed under this Division (whether or not in response to a request under this Division).
For the purposes of this Division, an industry standard is a standard determined under this Division.
For the purposes of this Division, an online activity is an activity that consists of:
(a) providing a social media service, so far as the service is provided to end-users in Australia; or
(b) providing a relevant electronic service, so far as the service is provided to end-users in Australia; or
(c) providing a designated internet service, so far as the service is provided to end-users in Australia; or
(d) providing an internet search engine service, so far as the service is provided to end-users in Australia; or
(e) providing an app distribution service, so far as the service is provided to end-users in Australia; or
(f) providing a hosting service, so far as the service hosts material in Australia; or
(g) providing an internet carriage service, so far as the service is provided to customers in Australia; or
(h) manufacturing, supplying, maintaining or installing any of the following equipment:
(i) equipment that is for use by end-users in Australia of a social media service in connection with the service;
(ii) equipment that is for use by end-users in Australia of a relevant electronic service in connection with the service;
(iii) equipment that is for use by end-users in Australia of a designated internet service in connection with the service;
(iv) equipment that is for use by end-users in Australia of an internet carriage service in connection with the service.
135 Sections of the online industry
(1) For the purposes of this Division, sections of the online industry are to be ascertained in accordance with this section.
(2) For the purposes of this Division, each of the following groups is a section of the online industry :
(a) the group consisting of providers of social media services, so far as those services are provided to end-users in Australia;
(b) the group consisting of providers of relevant electronic services, so far as those services are provided to end-users in Australia;
(c) the group consisting of providers of designated internet services, so far as those services are provided to end-users in Australia;
(d) the group consisting of providers of internet search engine services, so far as those services are provided to end-users in Australia;
(e) the group consisting of providers of app distribution services, so far as those services are provided to end-users in Australia;
(f) the group consisting of providers of hosting services, so far as those services host material in Australia;
(g) the group consisting of providers of internet carriage services, so far as those services are provided to customers in Australia;
(h) the group consisting of persons who manufacture, supply, maintain or install any of the following equipment:
(i) equipment that is for use by end-users in Australia of a social media service in connection with the service;
(ii) equipment that is for use by end-users in Australia of a relevant electronic service in connection with the service;
(iii) equipment that is for use by end-users in Australia of a designated internet service in connection with the service;
(iv) equipment that is for use by end-users in Australia of an internet carriage service in connection with the service.
136 Participants in a section of the online industry
For the purposes of this Division, if a person is a member of a group that constitutes a section of the online industry, the person is a participant in that section of the online industry.
Subdivision B — General principles relating to industry codes and industry standards
137 Statement of regulatory policy
(1) The Parliament intends that bodies or associations that the Commissioner is satisfied represent sections of the online industry should develop codes ( industry codes ) that are to apply to participants in the respective sections of the industry in relation to their online activities.
(2) The Parliament intends that the Commissioner should make reasonable efforts to ensure that, for each section of the online industry, either:
(a) an industry code is registered under this Division within 6 months after the commencement of this Division; or
(b) an industry standard is registered under this Division within 12 months after the commencement of this Division.
138 Examples of matters that may be dealt with by industry codes and industry standards
(1) This section sets out examples of matters that may be dealt with by industry codes and industry standards.
(2) The applicability of a particular example will depend on which section of the online industry is involved.
(3) The examples are as follows:
(a) procedures for dealing with class 1 material, or class 2 material, provided on a social media service;
(b) procedures for dealing with class 1 material, or class 2 material, provided on a relevant electronic service;
(c) procedures for dealing with class 1 material, or class 2 material, provided on a designated internet service;
(d) procedures directed towards the achievement of the objective of ensuring that, in the event that a participant in the providers of internet carriage services section of the online industry becomes aware that a hosting service provider is hosting class 1 material, or class 2 material, in Australia, the hosting service provider is told about the material;
(e) procedures to be followed in order to inform producers of online content about their legal responsibilities in relation to that content;
(f) procedures directed towards the achievement of the objective of ensuring that online accounts are not provided to children without the consent of a parent or responsible adult;
(g) procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered internet carriage service;
(h) giving end-users information about the availability, use and appropriate application of online content filtering software;
(i) providing end-users with access to technological solutions to help them limit access to class 1 material and class 2 material;
(j) providing end-users with advice on how to limit access to class 1 material and class 2 material;
(k) action to be taken to assist in the development and implementation of online content filtering technologies (including labelling technologies);
(l) promoting awareness of the safety issues associated with social media services;
(m) promoting awareness of the safety issues associated with relevant electronic services;
(n) promoting awareness of the safety issues associated with designated internet services;
(o) procedures to be followed in order to deal with safety issues associated with social media services;
(p) procedures to be followed in order to deal with safety issues associated with relevant electronic services;
(q) procedures to be followed in order to deal with safety issues associated with designated internet services;
(r) giving parents and responsible adults information about how to supervise and control children’s access to material provided on social media services;
(s) giving parents and responsible adults information about how to supervise and control children’s access to material provided on relevant electronic services;
(t) giving parents and responsible adults information about how to supervise and control children’s access to material provided on designated internet services;
(u) telling persons about their rights to make complaints;
(v) procedures to be followed in order to deal with complaints about class 1 material, or class 2 material, provided on social media services;
(w) procedures to be followed in order to deal with complaints about class 1 material, or class 2 material, provided on relevant electronic services;
(x) procedures to be followed in order to deal with complaints about class 1 material, or class 2 material, provided on designated internet services;
(y) procedures to be followed in order to deal with reports about class 1 material, or class 2 material, provided on social media services, where the reports are made by or on behalf of end-users of those services;
(z) procedures to be followed in order to deal with reports about class 1 material, or class 2 material, provided on relevant electronic services, where the reports are made by or on behalf of end-users of those services;
(za) procedures to be followed in order to deal with reports about class 1 material, or class 2 material, provided on designated internet services, where the reports are made by or on behalf of end-users of those services;
(zb) procedures to be followed in order to deal with complaints about unsolicited electronic messages that promote or advertise one or more:
(i) websites; or
(ii) distinct parts of websites; or
(iii) apps;
that enable, or purport to enable, end-users to access class 1 material or class 2 material;
(zc) if:
(i) class 2 material is provided on a social media service; and
(ii) the service is provided from a foreign country; and
(iii) the provider of the service has reasonable grounds to believe that the material is hosted in Australia;
procedures to be followed to ensure the Commissioner is notified of the material;
(zd) if:
(i) class 2 material is provided on a relevant electronic service; and
(ii) the service is provided from a foreign country; and
(iii) the provider of the service has reasonable grounds to believe that the material is hosted in Australia;
procedures to be followed to ensure the Commissioner is notified of the material;
(ze) if:
(i) class 2 material is provided on a designated internet service; and
(ii) the service is provided from a foreign country; and
(iii) the provider of the service has reasonable grounds to believe that the material is hosted in Australia;
procedures to be followed to ensure the Commissioner is notified of the material;
(zf) the referral to the Commissioner of complaints about matters, where the complainant is dissatisfied with the way in which the complaint was dealt with under the code or standard;
(zg) ensuring that end-users are provided with information, and support services, relating to online safety for Australians;
(zh) the making and retention of material directed towards the achievement of the objective of ensuring that, in the event that new social media services are developed that could put at risk the safety of children who are end-users of the services, the Commissioner is informed about those services;
(zi) the making and retention of material directed towards the achievement of the objective of ensuring that, in the event that new relevant electronic services are developed that could put at risk the safety of children who are end-users of the services, the Commissioner is informed about those services;
(zj) the making and retention of material directed towards the achievement of the objective of ensuring that, in the event that new designated internet services are developed that could put at risk the safety of children who are end-users of the services, the Commissioner is informed about those services.
Scope
(1) This section applies if an industry code or industry standard deals with the matter referred to in paragraph 138(3)(v), (w) or (x).
Escalation
(2) The industry code or industry standard, as the case may be, must also deal with the matter referred to in paragraph 138(3)(zf).
Subdivision C — Industry codes
140 Registration of industry codes
Scope
(1) This section applies if:
(a) the Commissioner is satisfied that a body or association represents a particular section of the online industry; and
(b) that body or association develops an industry code that applies to participants in that section of the industry and deals with one or more matters relating to the online activities of those participants; and
(c) the body or association gives a copy of the code to the Commissioner; and
(d) the Commissioner is satisfied that:
(i) to the extent to which the code deals with one or more matters of substantial relevance to the community—the code provides appropriate community safeguards for that matter or those matters; and
(ii) to the extent to which the code deals with one or more matters that are not of substantial relevance to the community—the code deals with that matter or those matters in an appropriate manner; and
(e) the Commissioner is satisfied that, before giving the copy of the code to the Commissioner:
(i) the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from members of the public within that period; and
(f) the Commissioner is satisfied that, before giving the copy of the code to the Commissioner:
(i) the body or association published a draft of the code and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and
(g) the Commissioner has been consulted about the development of the code.
Registration
(2) The Commissioner may register the code by including it in the Register of industry codes kept under section 149.
Period of consultation
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.
Replacing industry codes
(4) If:
(a) an industry code (the new code ) is registered under this Division; and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Division when the new code is registered.
141 Commissioner may request codes
(1) If the Commissioner is satisfied that a body or association represents a particular section of the online industry, the Commissioner may, by written notice given to the body or association, request the body or association to:
(a) develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the online activities of those participants; and
(b) give the Commissioner a copy of the code within the period specified in the notice.
(2) The period specified in a notice under subsection (1) must run for at least 120 days.
(3) The Commissioner may vary a notice under subsection (1) by extending the period specified in the notice.
(4) Subsection (3) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 .
(5) A notice under subsection (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).
142 Replacement of industry codes
(1) Changes to an industry code are to be achieved by replacing the code instead of varying the code.
(2) If the replacement code differs only in minor respects from the original code, section 140 has effect, in relation to the registration of the code, as if paragraphs 140(1)(e) and (f) of this Division had not been enacted.
Note: Paragraphs 140(1)(e) and (f) deal with submissions about draft codes.
143 Compliance with industry codes
(1) If:
(a) a person is a participant in a particular section of the online industry; and
(b) the Commissioner is satisfied that the person has contravened, or is contravening, an industry code that:
(i) is registered under this Division; and
(ii) applies to participants in that section of the industry;
the Commissioner may, by written notice given to the person, direct the person to comply with the industry code.
(2) A person must comply with a direction under subsection (1).
Civil penalty for contravention of this subsection: 500 penalty units.
144 Formal warnings—breach of industry codes
Scope
(1) This section applies to a person who is a participant in a particular section of the online industry.
Warning
(2) The Commissioner may issue a formal warning if the person contravenes an industry code registered under this Division.
Subdivision D — Industry standards
145 Commissioner may determine an industry standard
(1) The Commissioner may, by legislative instrument, determine a standard that applies to participants in a particular section of the online industry.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901 .
(2) A standard under this section is to be known as an industry standard .
(3) The Minister may, by legislative instrument, give the Commissioner a written direction as to the exercise of the Commissioner’s powers under this section.
146 Compliance with industry standards
If:
(a) an industry standard that applies to participants in a particular section of the online industry is registered under this Division; and
(b) a person is a participant in that section of the online industry;
the person must comply with the industry standard.
Civil penalty: 500 penalty units.
147 Formal warnings—breach of industry standards
Scope
(1) This section applies to a person who is a participant in a particular section of the online industry.
Warning
(2) The Commissioner may issue a formal warning if the person contravenes an industry standard registered under this Division.
148 Public consultation on industry standards
(1) Before determining or varying an industry standard, the Commissioner must:
(a) make a copy of the draft available on the Commissioner’s website; and
(b) publish a notice on the Commissioner’s website:
(i) stating that the Commissioner has prepared a draft of the industry standard or variation; and
(ii) inviting interested persons to give written comments about the draft to the Commissioner within the period specified in the notice.
(2) The period specified in the notice must run for at least 30 days after the publication of the notice.
(3) Subsection (1) does not apply to a variation if the variation is of a minor nature.
(4) If interested persons have given comments in accordance with a notice under subsection (1), the Commissioner must have due regard to those comments in determining or varying the industry standard, as the case may be.
Subdivision E — Register of industry codes and industry standards
149 Commissioner to maintain Register of industry codes and industry standards
(1) The Commissioner is to maintain a Register in which the Commissioner includes:
(a) all industry codes that the Commissioner decides to register under this Division; and
(b) all industry standards; and
(c) all requests made under section 141; and
(d) all directions under section 143.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Commissioner’s website.
150 Industry standards prevail over inconsistent industry codes
If an industry code is:
(a) registered under this Division; and
(b) applicable to a person;
the code has no effect to the extent to which it is inconsistent with an industry standard that is:
(c) registered under this Division; and
(d) applicable to the person.
Division 8 — Service provider determinations
151 Service provider determinations
(1) The Commissioner may, by legislative instrument, determine any or all of the following rules:
(a) rules that apply to providers of social media services in relation to the provision of social media services;
(b) rules that apply to providers of relevant electronic services in relation to the provision of relevant electronic services;
(c) rules that apply to providers of designated internet services in relation to the provision of designated internet services;
(d) rules that apply to hosting service providers in relation to the provision of hosting services;
(e) rules that apply to internet service providers in relation to the supply of internet carriage services.
(2) A determination under subsection (1) is called a service provider determination .
(3) A service provider determination has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.
(4) The Commissioner must not make a service provider determination unless the determination relates to a matter specified in the legislative rules.
(5) A service provider determination may make provision for or in relation to a particular matter by empowering the Commissioner to make decisions of an administrative character.
152 Exemptions from service provider determinations
(1) The Minister may, by legislative instrument, determine any or all of the following:
(a) that a specified provider of a social media service is exempt from service provider determinations;
(b) that a specified provider of a relevant electronic service is exempt from service provider determinations;
(c) that a specified provider of a designated internet service is exempt from service provider determinations;
(d) that a specified hosting service provider is exempt from service provider determinations;
(e) that a specified internet service provider is exempt from service provider determinations.
(2) The Minister may, by legislative instrument, determine any or all of the following:
(a) that a specified provider of a social media service is exempt from a specified service provider determination;
(b) that a specified provider of a relevant electronic service is exempt from a specified service provider determination;
(c) that a specified provider of a designated internet service is exempt from a specified service provider determination;
(d) that a specified hosting service provider is exempt from a specified service provider determination;
(e) that a specified internet service provider is exempt from a specified service provider determination.
(3) A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.
153 Compliance with service provider rules
A person must not contravene a service provider rule that applies to the person.
Civil penalty: 500 penalty units.
154 Remedial directions—breach of service provider rules
(1) This section applies if the Commissioner is satisfied that a person has contravened, or is contravening, a service provider rule that applies to the person.
(2) The Commissioner may give the person a written direction requiring the person to take specified action directed towards ensuring that the provider does not contravene the rule, or is unlikely to contravene the rule, in the future.
(3) The following are examples of the kinds of direction that may be given to a person under subsection (2):
(a) a direction that the person implement effective administrative systems for monitoring compliance with a service provider rule;
(b) a direction that the person implement a system designed to give the person’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a service provider rule, so far as those requirements affect the employees, agents or contractors concerned.
(4) A person must comply with a direction under subsection (2).
Civil penalty for contravention of this subsection: 500 penalty units.
155 Formal warnings—breach of service provider rules
The Commissioner may issue a formal warning to a person if the Commissioner is satisfied that the person has contravened, or is contravening, a service provider rule that applies to the person.
Division 9 — Federal Court orders
156 Federal Court may order a person to cease providing a social media service
(1) If the Commissioner is satisfied that:
(a) a person is the provider of a social media service; and
(b) there were 2 or more occasions during the previous 12 months on which the person contravened a civil penalty provision of this Part; and
(c) as a result of those contraventions, the continued operation of that social media service represents a significant community safety risk;
the Commissioner may apply to the Federal Court for an order that the person cease providing that social media service.
(2) If the Federal Court is satisfied, on such an application, that:
(a) the person is the provider of a social media service; and
(b) there were 2 or more occasions during the previous 12 months on which the person contravened a civil penalty provision of this Part; and
(c) as a result of those contraventions, the continued operation of that social media service represents a significant community safety risk;
the Federal Court may order the person to cease providing that social media service.
157 Federal Court may order a person to cease providing a relevant electronic service
(1) If the Commissioner is satisfied that:
(a) a person is the provider of a relevant electronic service; and
(b) there were 2 or more occasions during the previous 12 months on which the person contravened a civil penalty provision of this Part; and
(c) as a result of those contraventions, the continued operation of that relevant electronic service represents a significant community safety risk;
the Commissioner may apply to the Federal Court for an order that the person cease providing that relevant electronic service.
(2) If the Federal Court is satisfied, on such an application, that:
(a) the person is the provider of a relevant electronic service; and
(b) there were 2 or more occasions during the previous 12 months on which the person contravened a civil penalty provision of this Part; and
(c) as a result of those contraventions, the continued operation of that relevant electronic service represents a significant community safety risk;
the Federal Court may order the person to cease providing that relevant electronic service.
158 Federal Court may order a person to cease providing a designated internet service
(1) If the Commissioner is satisfied that:
(a) a person is the provider of a designated internet service; and
(b) there were 2 or more occasions during the previous 12 months on which the person contravened a civil penalty provision of this Part; and
(c) as a result of those contraventions, the continued operation of that designated internet service represents a significant community safety risk;
the Commissioner may apply to the Federal Court for an order that the person cease providing that designated internet service.
(2) If the Federal Court is satisfied, on such an application, that:
(a) the person is the provider of a designated internet service; and
(b) there were 2 or more occasions during the previous 12 months on which the person contravened a civil penalty provision of this Part; and
(c) as a result of those contraventions, the continued operation of that designated internet service represents a significant community safety risk;
the Federal Court may order the person to cease providing that designated internet service.
159 Federal Court may order a person to cease supplying an internet carriage service
(1) If the Commissioner is satisfied that:
(a) a person is the supplier of an internet carriage service; and
(b) there were 2 or more occasions during the previous 12 months on which the person contravened a civil penalty provision of this Part; and
(c) as a result of those contraventions, the continued operation of that internet carriage service represents a significant community safety risk;
the Commissioner may apply to the Federal Court for an order that the person cease supplying that internet carriage service.
(2) If the Federal Court is satisfied, on such an application, that:
(a) the person is the supplier of an internet carriage service; and
(b) there were 2 or more occasions during the previous 12 months on which the person contravened a civil penalty provision of this Part; and
(c) as a result of those contraventions, the continued operation of that internet carriage service represents a significant community safety risk;
the Federal Court may order the person to cease supplying that internet carriage service.
Division 10 — Commissioner may obtain advice from the Classification Board
160 Commissioner may obtain advice from the Classification Board
(1) The Commissioner may request the Classification Board to:
(a) advise the Commissioner whether particular material is class 1 material; or
(b) advise the Commissioner whether particular material is class 2 material; or
(c) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(a); or
(d) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(b); or
(e) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(c); or
(f) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(d); or
(g) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(e); or
(h) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(f); or
(i) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(g); or
(j) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(h); or
(k) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(i); or
(l) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(j); or
(m) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(k); or
(n) advise the Commissioner whether particular material is class 2 material covered by paragraph 107(1)(l).
(2) The Classification Board may give the advice requested by the Commissioner.
(3) Subsection (2) does not, by implication, limit the matters that may be taken into account by the Commissioner in considering:
(a) whether particular material is class 1 material; or
(b) whether particular material is class 2 material; or
(c) whether particular material is class 2 material covered by paragraph 107(1)(a); or
(d) whether particular material is class 2 material covered by paragraph 107(1)(b); or
(e) whether particular material is class 2 material covered by paragraph 107(1)(c); or
(f) whether particular material is class 2 material covered by paragraph 107(1)(d); or
(g) whether particular material is class 2 material covered by paragraph 107(1)(e); or
(h) whether particular material is class 2 material covered by paragraph 107(1)(f); or
(i) whether particular material is class 2 material covered by paragraph 107(1)(g); or
(j) whether particular material is class 2 material covered by paragraph 107(1)(h); or
(k) whether particular material is class 2 material covered by paragraph 107(1)(i); or
(l) whether particular material is class 2 material covered by paragraph 107(1)(j); or
(m) whether particular material is class 2 material covered by paragraph 107(1)(k); or
(n) whether particular material is class 2 material covered by paragraph 107(1)(l).