Background to the Unlawful Material Codes

The Unlawful Material Codes were initially known as the ‘Phase 1 Industry Codes’. This name related to how they were developed.

The Online Safety Act, which commenced on 23 January 2022, provides for industry bodies to develop industry codes to regulate ‘class 1’ and ‘class 2’ illegal and restricted online material, and for eSafety to register the codes if they meet the statutory requirements. If a code does not meet the requirements, then eSafety can develop an industry standard for that section of the online industry instead.

In September 2021, eSafety released a position paper to help the online industry develop codes. The paper set out 11 policy positions regarding the substance, design, development and administration of industry codes for class 1 and class 2 material, as well as eSafety’s preferred outcomes-based model for the codes.

It recommended the industry associations prioritise efforts to prevent and reduce the most seriously harmful types of ‘class 1’ illegal material in a first phase of drafting (followed by a second phase focused on limiting access to age-restricted material). 

On 11 April 2022, eSafety issued notices formally requesting the development of industry codes to address class 1A and class 1B material. These were issued to six industry associations that formed a steering group to oversee codes development for the eight industry sections outlined under the Online Safety Act.

These industry associations were:

• Australian Mobile Telecommunications Association
• Australian Telecommunications Alliance (formerly Communications Alliance)
• BSA – The Software Alliance
• Consumer Electronics Suppliers’ Association
• Digital Industry Group Inc
• Interactive Games and Entertainment Association.

On 23 June 2022, eSafety issued a variation of the notices, to change the due date for codes to be provided to eSafety.

Public and industry consultation

Public and industry consultation on the draft codes was the responsibility of the industry associations.

The industry associations responsible for developing the first phase of codes, for class 1A and class 1B online material, carried out consultation in September 2022.

Submissions received as part of the industry associations’ consultation were published at onlinesafety.org.au.

Submission of first phase of draft codes

Following public consultation, the industry associations submitted draft codes to eSafety on 18 November 2022. The industry associations also submitted to eSafety a formal request for registration, the submissions log and industry associations' response to public consultation. The industry associations published the log and response at that time.

The draft codes were published by the industry associations on 22 February 2023 at onlinesafety.org.au.

eSafety's preliminary views on the first phase of draft codes 

eSafety considered the draft codes for class 1 material submitted by the industry associations and, on 9 February 2023, the eSafety Commissioner wrote to the industry associations to inform them of her preliminary views. She advised that the draft industry codes for class 1 material did not provide appropriate community safeguards and were unlikely to meet the statutory requirements for registration. 

The eSafety Commissioner invited the industry associations to respond and/or resubmit draft codes that addressed eSafety’s feedback. These are the letters sent to the industry associations in relation to each draft code.

The eSafety Commissioner granted an extension to the industry associations to resubmit draft codes for class 1 material by 31 March 2023.

eSafety's decisions on first phase of draft codes

On 31 March 2023, industry associations resubmitted eight codes for class 1A and class 1B material to eSafety for registration.

After careful and comprehensive assessment the eSafety Commissioner decided to register five of these codes, for:

• social media services
• internet carriage services
• equipment providers
• app distribution services
• hosting services.

These codes were published on the Register of Online Safety Codes and Standards page on 16 June 2023. The obligations contained in these codes came into effect on 16 December 2023.

On 31 May 2023, the eSafety Commissioner declined to register the draft Designated Internet Services Code and draft Relevant Electronic Services Code for class 1A and class 1B material. The draft codes did not meet the statutory requirements for registration because they did not contain appropriate community safeguards for users in Australia. She announced industry standards for these industry sections would be determined.

These summaries of the eSafety Commissioner’s reasons for the decision on each draft code for class 1A and class 1B material were published on 31 May 2023.

eSafety’s decision on the first phase draft code for internet search engine services

On 1 June 2023, the eSafety Commissioner reserved her decision regarding the Internet Search Engine Services Code due to concerns that the code did not sufficiently capture the proposed changes to search engines to incorporate generative artificial intelligence features.

At the request of the eSafety Commissioner, and following feedback from eSafety, the relevant industry associations submitted a new Internet Search Engine Services Code on 14 August 2023 that addressed the risk associated with this new technology.

On 7 September 2023, the eSafety Commissioner decided to register the Internet Search Engine Services Code.

This summary of the eSafety Commissioner’s reasons for the decision on the class 1A and class 1B code for internet service providers was published on 7 September 2023.

eSafety’s decisions on the first phase draft codes for relevant electronic services and designated internet services

Given the absence of appropriate community safeguards, it was necessary for the eSafety Commissioner to determine industry standards for Relevant Electronic Services and Designated Internet Services.

Draft standards for internet search engine providers and relevant electronic services were prepared and a public consultation period was open for 31 days, until 21 December 2023.

The eSafety Commissioner invited the views of the online industry, civil society groups, the general public and other interested stakeholders on the two drafts.

Find more information about the consultation process, including the publication of submissions. 

Renaming of the first phase of codes

The first phase of codes was renamed ‘Unlawful Material Codes’, to clearly distinguish it from codes developed under the second phase which are now called the ‘Age-Restricted Material Codes’.