Australia’s New ‘Digital Duty of Care’ May Exclude Snapchat

The Albanese government's latest move to regulate social media proposes making platforms responsible for users' mental health through a "digital duty of care."

However, Communications Minister Michelle Rowland has indicated that Snapchat, which allows users to send photos, videos, and texts that can be set to disappear automatically after a chosen time, may be exempted from regulation.

Rowland announced last night during a speech to the Sydney Institute that the government planned to impose a legal responsibility for keeping Australians safe onto social media companies, including an ongoing duty to identify and mitigate potential risks, rather than "set and forget."

"What's required is a shift away from reacting to harms by relying on content regulation alone, and [instead] moving towards systems-based prevention, accompanied by a broadening of our perspective of what online harms are," she said.

She explained that a digital duty of care was "a common law concept and statutory obligation that places a legal obligation to take reasonable steps to protect others from harm."

"Where platforms seriously and systemically breach their duty of care we will ensure the regulator can draw on strong penalty arrangements," she said.

The imposition of a digital duty of care is expected to be based on recommendations from an independent review of the Online Safety Act by the deputy chair of the Australian Competition and Consumer Commission (ACCC), Delia Rickard, which is yet to be released.

The proposal involves four "enduring categories of harm" including harm to children and young people, to mental health and wellbeing, the sharing and promotion of damaging practices, and "other illegal content, conduct and activity."

This was the same approach as was currently used by the United Kingdom and European Union, she said.

Despite this firm stance, Rowland hinted on radio that Snapchat may be exempt.

"We will go through, in a methodical way, having these criteria and the eSafety commissioner applying what will be a very transparent process," she said.

"Some of these platforms do present themselves in different way.

"They will argue, for example, that they are messaging services and not social media services. We need to assess that objectively against a transparent set of criteria."

Coalition spokesperson on communications David Coleman has called the possibility of exempting the platform from social media age limits "outrageous."

"For many Australian families, Snapchat has had a devastating impact on their children," he said. "It is extraordinary that the Minister is saying [it] could be exempted from the laws."

He said while the Opposition supports the planned social media ban for young people, it would not "support them going weak on exemptions."

Rowland's latest proposal is one of an ever-growing list of laws and regulations aimed to bring social media under government control, including the ban on its use by people aged under 16 and the mis- and disinformation laws.