The widespread issue of child sexual exploitation material online is a global disaster, with 29.1 million reports made to the National Centre for Missing and Exploited Children last year alone. Since 2015, eSafety has handled more than 61,000 complaints about illegal and restricted content – the majority of these involving child sexual exploitation material (CSAM). Australia’s eSafety Commissioner, Julie Inman Grant, has said that eSafety has seen a surge in reports about CSAM since the start of the pandemic, “as technology was weaponised to abuse children” and that the harm experienced by victim-survivors is perpetuated when platforms and services fail to detect and remove the content.
The Online Safety regime
On 23 January 2022, the Online Safety Act 2021 (Cth) came into effect, the objects of which are to improve and promote online safety for Australians. The Act gives eSafety improved powers to help protect all Australians from the most serious forms of online harm.
Under the new Basic Online Safety Expectations (the Expectations), a key part of the Act, eSafety can issue legal notices requiring providers of social media services, messaging services, gaming services, file-sharing services and other apps and certain other sites accessible from Australia as defined in the Act (Relevant Providers) to report on how they are meeting any or all of the Expectations. eSafety can also publish statements about the extent to which services are meeting the Expectations.
On 29 August 2022, in an initial information-gathering exercise, eSafety issued notices to a number of the world’s largest tech companies as part of the implementation of the Expectations – requiring them to report on the measures that they are taking (or not taking) to address the creation and spread of CSAM on their platforms and services. eSafety decided on this first batch of companies based on considerations such as the number of complaints to eSafety, the company’s reach, and how much information is already public.
Under the Act, companies who fail to comply and respond to a notice within 28 days risk facing civil penalties of up to $555,000 a day.
Importantly, eSafety plans to issue further notices to additional Relevant Providers in due course to build a comprehensive picture of online safety measures across a wide range of services.