Our legislative functions
The eSafety Commissioner has various functions and powers, under Australian Government legislation, to foster online safety.
The eSafety Commissioner was established as an independent statutory office under the Enhancing Online Safety Act 2015 (Cth). Many of the functions of the Commissioner were set out in section 15 of the Act. Initially, these functions primarily related to enhancing online safety for Australian children.
In 2017, the Act was amended to expand the Commissioner's remit to promoting and enhancing online safety for all Australians.
The eSafety Commissioner also has powers and functions under:
- schedules 5 of 7 of the Broadcasting Services Act 1992 (Cth)
- section 581 (2A) of the Telecommunications Act 1997 (Cth)
- section 5 of the Enhancing Online Safety (Protecting Australians from Terrorist or Violent Criminal Material) Legislative Rule 2019
- sections 474.35 and 474.36 of the Criminal Code Act 1995.
In June 2021 the Australian Government enacted new legislation, the Online Safety Act 2021 (Cth), which gives the eSafety Commissioner improved powers to help protect all Australians from the most serious forms of online harm. Significant work needs to done to implement the new Act which will take effect on 23 January 2022. Meanwhile, eSafety will continue to provide citizen-focused services and support.
The key changes are:
- a new, world-first adult cyber abuse scheme, enabling the eSafety Commissioner to require the removal of adult cyber abuse material that targets an Australian if the Commissioner is satisfied that the material is posted with the likely intention of causing serious harm
- an enhanced cyberbullying scheme for Australian children, enabling the eSafety Commissioner to require the removal of material from the full range of online services where under 18s are now spending time, not just social media sites
- a strengthened image-based abuse scheme, enabling the eSafety Commissioner to rapidly address the non-consensual sharing of intimate images
- stronger information-gathering powers for the eSafety Commissioner, including the ability to obtain identity information including basic subscriber information for anonymous accounts
- a modernised Online Content Scheme, enabling the eSafety Commissioner to take action against seriously harmful online content, such as child sexual abuse material and pro-terror content, no matter where it's hosted
- a regime for the development of new industry codes and standards
- a framework for Basic Online Safety Expectations for the technology industry, to help ensure that technology industry products and services are safe for Australians to use and to provide greater transparency around their safety features, policies and practices.
Online Safety Act 2021 fact sheet
Until the new Online Safety Act takes effect in January 2022, eSafety will continue to exercise its powers under the current Enhancing Online Safety Act, which has the following schemes.
Powers relating to cyberbullying
The Enhancing Online Safety Act 2015 gives the Commissioner the power to investigate and act on complaints about serious cyberbullying material targeted at an Australian child.
The Act establishes a two-tiered scheme for the removal of cyberbullying material from participating social media services. The two tiers of the scheme are subject to different levels of regulatory oversight:
- Social media services participate in Tier 1 of the scheme on an opt-in basis.
- Social media services that are declared Tier 2 services by the Minister for Communications may be subject to legally binding notices and civil penalties for non-compliance with requests from the Commissioner.
In addition, the Commissioner has powers to issue notices to individuals who post cyberbullying material and request that they take the material down, refrain from posting further cyberbullying material or apologise to the child who is the target.
Under the Act, the Commissioner may share information with parents, guardians, teachers and school principals in order to support the resolution of a cyberbullying complaint. In some cases, the Commissioner may disclose information to the police so they can investigate whether any criminal laws have been broken. Youth Law Australia has more information on the criminal laws that may apply to cyberbullying in your state or territory.
Find out more about cyberbullying complaints and reporting.
Powers relating to image-based abuse
The Enhancing Online Safety Act 2015 establishes a civil penalties scheme that allows the Commissioner to help with the removal of intimate images or videos from online platforms. In some cases, the Commissioner may also be able to take action against the person responsible for the image-based abuse.
The scheme gives eSafety the power to give enforceable removal notices to social media services, websites, hosting providers and perpetrators, requiring the removal of intimate material.
The civil penalties scheme also gives eSafety a range of powers to take action against perpetrators, such as by:
- issuing a formal warning
- giving a remedial direction
- issuing an infringement notice
- accepting an enforceable undertaking
- seeking an injunction or civil penalty order in Court.
Find out more about image-based abuse complaints and reporting.
Powers relating to illegal and harmful online content
Online content scheme
Under this scheme, the Commissioner may investigate valid complaints about online content, and take action on material found to be prohibited or potentially prohibited. This includes child sexual abuse material.
The Online Content Scheme interconnects with the role of law enforcement and with the International Association of Internet Hotlines (INHOPE), which combats online child sexual abuse.
The scheme is underpinned by the National Classification Scheme that also applies to films, computer games and publications.
Find out more about What we can investigate under the online content scheme.
Abhorrent violent material
Amendments made to the Criminal Code Act 1995 (Cth) after the Christchurch terrorist attacks in 2019 created new offence provisions relating to abhorrent violent material (AVM).
The Act defines AVM as audio, visual or audio-visual material created by a perpetrator or an accomplice that records or streams:
• a terrorist act leading to serious injury or death
• murder or attempted murder
• kidnapping involving violence or the threat of violence.
Under the amendments, the eSafety Commissioner may issue an AVM notice to a website or its hosting service if they are providing access to AVM. Failure by a website or hosting service to remove access to the material may constitute a criminal offence.
Commonwealth law enforcement agencies are responsible for prosecuting this offence, however any prosecution first requires the consent of the Attorney-General.
For more information, see The actions we can take.
Directions to service providers
The Telecommunications Act 1997 (Cth) provides that the eSafety Commissioner may give written directions to a carrier or a service provider in connection with any of the Commissioner’s functions and powers.
Following the Christchurch attack, the Commissioner gave a direction in connection with her function of promoting online safety for Australians by protecting them from access or exposure to material that promotes, incites, or instructs in, terrorist acts or violent crimes. The direction required Internet Service Providers (ISPs) to temporarily block websites providing access to the perpetrator’s video and manifesto.
Since then, the Commissioner has developed a protocol with the Communications Alliance — an organisation representing Australia’s communications sector — to set out how a similar direction to ISPs would work in an ‘online crisis event’.
For more information, see The actions we can take.