1.1 The Office of the eSafety Commissioner was established in July 2015, under the Enhancing Online Safety Act 2015 (Cth) (the Act). At the time, the Act gave the Office a remit of enhancing online safety for children and young people, directing the Commissioner to play a national leadership and coordination role to help prevent and mitigate the impacts of the most insidious forms of online abuse. In July 2017, the Office’s remit was expanded to cover enhancing online safety for all Australians. A core function of the Office is its work with law enforcement and other partners such as INHOPE and industry to take action against:
1.2 These reporting schemes offer Australians practical help in managing the impact of these types of abuses, but their real uniqueness lies in the fact that the Office can formally direct online service providers to remove illegal and cyberbullying content from their services, and informally request the removal of image-based abuse; providing and empowering victims and survivors of online abuse to take control and help reduce feelings of re-victimisation. All of the schemes operate within a unique multi-stakeholder model, overlain by multi-faceted objectives – providing the Office with a unique perspective on the complex web that cyber abuse spins across all of societal structures, and the role that all stakeholders play in addressing and trying to combat this type of crime.
1.3 The Office also plays a key role in educating and empowering Australians to combat cyber abuse in all of its manifestations[1]; to better manage the safety and wellbeing of Australians online; and to develop critical digital skills to ensure Australians feel inspired to explore and engage with the online world whilst also having the resilience to overcome online set-backs. All of this is achieved via our outreach programs in schools and in the community; the provision of web information; virtual classrooms; peer-led ‘digital leaders’ programs; lesson plans; face-to-face training; youth and parental information and expert guidance.
1.4 Our in-house research team creates an evidence base for everything that we do, and we have developed compelling and engaging sets of online resources at esafety.gov.au, such as dedicated portals for parents (iParent), for children and young people (Young and eSafe) and for women experiencing technology-facilitated abuse (eWomen). The Office also manages and supports NGOs and safety experts to deliver their own online safety programmes and presentations to schools, through our certified providers program. The Office proactively engages with the Australian media to raise awareness and understanding of all forms of cyber abuse, as well as providing the public with tangible solutions and strategies to help navigate the online world safely.
1.5 Collaboration and multi-stakeholder engagement are pillars in the Office’s strategy to combat online abuse. The Office serves as the national leadership and coordinating body for online safety within Australia. It facilitates the Online Consultative Safety Working Group and the eSafety and Mental Health Working Group, both of which are comprised of online safety and mental health experts representing all sectors of the economy. The Office also engages at an international level, collaborating with key players in the wider global community in order to achieve the best outcomes for children and young people, and to assist in the development of evidence-based strategies to end violence against children in particular.
1.6 In our experience, taking a holistic approach to online safety issues has proven to be the most effective approach. Key to harm minimisation is the take down of harmful or “serious cyberbullying content” before the bullying escalates or the conduct reaches a criminal threshold. Australians, and particularly young Australians, need tangible, rapid redress – and our comprehensive powers have been proven to do just that.
2.1 The Office manages a world-first complaints system for serious cyberbullying of Australian children, where children, parents and teachers can lodge a complaint and receive timely advice and assistance. In its almost three years of operation, we have assisted over 760 children and families with rapid take-down of harmful material from social media services. We have played a critical role in helping address specific cyberbullying incidents, acting as a safety net to prevent harmful behaviour from escalating.
2.2 Key to our success is the cooperation shown by social media services when responding to informal requests to remove material, and our hybrid approach in targeting the root cause of the social conflict. We have had a 100% compliance rate with social media services to-date, and therefore, have not needed to exercise our formal powers to achieve take-down. The Office also works with parents, schools and when necessary, law enforcement, to get to the core of the problem as cyberbullying is often an extension of what is happening within the school gates. Early intervention through reporting, followed by collaboration with school communities and education can help address and quickly alleviate the harm that can arise from cyberbullying. In cases where a complaint identifies that cyberbullying may be a systemic problem in a particular school, the Office will deliver targeted presentations to parents and teachers to help combat the culture and provide relevant resources and tools to better protect students.
Functions of the Scheme
2.3 The Act established a two-tiered scheme for the rapid removal from social media services of cyberbullying material targeted at an Australian child. The two tiers of the scheme are subject to different levels of regulatory oversight; Tier 1[2] social media services participate in the scheme on a co‐operative basis, whereas those services that do not opt in to become a Tier 1 service or are declared by the Minister for Communications to be Tier 2 social media services are subject to legally binding notices and penalties.
Tier 1
2.4 Providers of Tier 1 social media services may elect how complaints made to the Commissioner should be assessed and notices given. This can be against either the ‘default rule’ set out at s.29(1) of the Act or the ‘special rule’ set out at s.29(2) of the Act.
2.5 Under the special rule, Tier 1 providers have the option of any assessment by the Commissioner of whether particular material is cyberbullying material being first made by reference to the social media service’s own terms of use, rather than by reference to the definition of targeted cyber‐bullying material in the Act. The choice between the default and the special rules is given effect by way of a statement from the social media service provider, under s.23(3) of the Act. If cyberbullying material is posted on a Tier 1 service the Commissioner can issue a notice requesting removal of the material within 48 hours. If a Tier 1 service does not comply with a written notice, under s.39 of the Act the Commissioner may draft and publish a notice on the Commissioner’s website to that effect.
2.6 To be considered a Tier 1 service, “basic online safety requirements” must be in place, as set out at s.21 of the Act. This includes having terms of use that prohibit the posting of cyberbullying material, a complaints scheme for the reporting of cyberbullying material if terms of use are breached and a designated contact person for the Office to report matters to.
Tier 2
2.7 A social media service may be declared a Tier 2[3] service on the recommendation of the Commissioner. To make a recommendation, the Commissioner must be satisfied that the service is a ‘large social media service’, or that the service has requested to be a Tier 2 service.
2.8 In cases where cyberbullying material has been posted on a Tier 2 service, the Commissioner may issue that service with a written notice requiring the service to remove the material within a 48 hour period. Failure to comply with a notice may lead to enforcement action being taken.
Discretionary powers
2.9 The Office has a broad range of discretionary powers and civil penalties under the Act, which enable it to take a range enforcement actions against individual perpetrators or the sites themselves. This includes fines of up to $21,000 a day for Tier 2 social media sites that do not comply with take down notices. While this may be pocket change for some of the big tech behemoths, the significance of this reputational impact for the social media companies, at this time, should not be underestimated. As has already been highlighted, the Office has received 100% compliance from industry to-date.
2.10 The Office can also issue an end-user notice, under s.42 of the Act, to a person that posts cyberbullying material, requiring them to take all reasonable steps to ensure the removal of the material, refrain from posting any cyber-bullying material targeting a child, and apologise for posting the material.
Mental Health Support and Referral
2.11 The Office also refers children and young people to dedicated support services, including counselling. The Office has partnered with the Kids Helpline, which has specialist expertise in dealing with children who encounter online bullying. We have currently referred over 6,000 young people to the Kids Helpline.
Statutory Review of the Act
3.1 The Office administers the Online Content Scheme, which allows Australian residents and bodies corporate to report illegal and offensive online content to the eSafety Commissioner. The Commissioner has the authority to direct the relevant content service provider to remove the content from their service and to take action on material it finds to be prohibited or potentially prohibited, as set out in Schedules 5 and 7 of the Broadcasting Services Act of 1992. These prohibitions are backed by strong sanctions for non-compliance including criminal penalties for serious offences. The scheme provides important community safeguards, as well as dovetailing with the role of law enforcement and the international community of Internet Hotlines, known as INHOPE. The Office is the sister organisation of the UK’s Internet Watch Foundation, and collaborates closely with the international community (for example, with NCMEC, Interpol and the WeProtect Global Alliance) in order to harness and promote innovation, investment and commitment to address and combat the proliferation of online child sexual exploitation.
3.2 The Office prioritises taking action on child sexual abuse material. Where such material is found to be hosted in Australia, the Office liaises with the relevant law enforcement agency to ensure that any action taken will not adversely impact ongoing police operations; the content is formally classified by the Classification board; and finally the Office formally directs the hosting company to remove the content. The Office works within a timeframe of two business days to have child abuse material removed, working hard to prevent the spread of child sexual abuse material and the re-victimisation of the young people who are the subject of these images.
3.3 In cases where child abuse content is hosted overseas, the Office either refers the content to the Australian Federal Police, or directly to an INHOPE member hotline in the hosting or production country. The key to the Office’s success is close collaboration with internet, technology and payment industries and law enforcement. Since 1 July 2017, the CyberReport team has completed a total of 8,284 investigations. More than 60% of these (5,300) were assessed as child sexual abuse material (CSAM), and each was referred to law enforcement partners for take down.
Functions of the Online Content Scheme
3.4 Schedules 5 and 7 of the Broadcasting Services Act 1992 (Cth) establish a regulatory scheme, commonly known as the ‘Online Content Scheme’.
Oversight of the Scheme transferred to the Office on 1 July 2015, and allows Australian residents and bodies corporate to report illegal and offensive online content to the eSafety Commissioner.
3.5 The Scheme provides the eSafety Commissioner a number of tools to regulate the internet and content industry, with the aim of protecting consumers, particularly children, from exposure to inappropriate or harmful material.
Schedule 7 provides that the Commissioner may issue:
3.6 Both Schedules 5 and 7 enable the eSafety Commissioner to:
3.7 The Commissioner has the authority to direct a relevant content service provider to remove content from their service, and has powers to take action on material it finds to be prohibited or potentially prohibited. These prohibitions are backed by strong sanctions for non-compliance, including criminal penalties.
3.8 The Office prioritises taking action on child sexual abuse material within a timeframe of two working days with a view to having the material removed. Where material is found to be hosted in Australia, the Office liaises with the relevant law enforcement agency(ies) to ensure that action taken will not adversely impact ongoing police operations.
3.9 In cases where child abuse content is hosted overseas, the Office either refers the content to the Australian Federal Police, or directly to a relevant INHOPE member hotline. The key to the Office’s success is close collaboration with internet, technology and payment industries and law enforcement.
3.10 To decide when content is likely to be prohibited under the Broadcasting Services Act 1992 (Cth), the Office refers to the national Classification Scheme. Formal classification by the Classification Board is required before online material is definitively regarded as prohibited.
4.1 Image-based abuse – the sharing, or threatened sharing, of intimate images or videos without consent - is a terrible form of abuse and can have serious impacts on victims. (We prefer the term ‘image-based abuse’ to ‘revenge porn’ as it better reflects the range of motivations and behaviours we see and we should not shy away from describing it as ‘abuse’.)
4.2 1 in 5 Australians have had their intimate images or videos taken or shared without their consent. In order to offer tangible support to Australians who have experienced image-based abuse, the Office launched its image-based abuse portal in mid-October 2017.
4.3 The portal is a place where Australians can report image-based abuse to seek its removal, and access practical advice and resources to help them manage the impacts of image-based abuse.
4.4 In the first six months of operation of the portal, the Office received over 180 reports of image-based abuse, and was successful in having image-based abuse material removed in 80% of cases. We had over 64,000 total visits to the portal in the same period.
Our report resolution approach
4.5 The Office has a three-pronged approach to responding to reports of image-based abuse. We make sure the victim is safe and supported, seek rapid removal of content, and keep the victim informed of our actions and progress.
4.6 We ensure highly distressed victims are immediately referred to an appropriate counselling or support service and if we’re concerned the victim’s personal safety is at risk, we help them collect evidence and refer them immediately to their local police. While requesting rapid removal of image-based abuse material is our primary role, we never lose sight of the fact that victims of image-based abuse have a range of needs. So, we also ensure that victims are connected with other appropriate services, such as expert counselling, legal assistance and family and domestic violence support services.
4.7 Where the abuse concerns under 18s and can be characterised as cyberbullying or child sexual abuse material, the Office relies on its current legislative powers. This has been leveraged to request that sites and hosts remove the material, regardless of the age of the victim.
4.8 The Government’s proposed civil penalty scheme, set out in the Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017 is currently before Parliament. If passed, this should increase the Office’s effectiveness in having image-based abuse material removed. The bill seeks to introduce a prohibition on the posting, or threatened posting, of intimate images and establish a complaints and objections system that the Office will administer. It would provide us with a diverse range of powers to enforce the statutory prohibition on the non-consensual sharing of intimate images, including the ability to give formal removal notices to websites, hosting providers and perpetrators.
4.9 The Office continues to innovate and develop tailor-made materials and programmes to address the online safety needs of a wide range of vulnerable communities. Examples of these efforts may be found at www.esafety.gov.au.
We would be pleased to answer any further questions the House of Lords might have about the function of the Office, our education and awareness programmes or the various schemes we operate.
9 May 2018
[1] Including, but not limited to, cyberbullying, harassment, stalking, hate speech, anti-social content, violent and distressing content, image-based abuse, offensive or illegal content, sexting, unwanted contact, child sexual exploitation, online grooming, and social engineering.
[2] The following are a Tier 1 service: airG, Ask.fm, Flickr, musical.ly, Roblox, Snapchat, Twitter, Yahoo!7 Answers, Yahoo!7 Groups, Yubo.
[3] The following are a Tier 2 service: Facebook, Google+, Instagram, YouTube