Labor Retreats, Speech Remains Under Threat

Labor is preparing to retreat on a controversial power in its proposed internet legislation. That is welcome news for Australians who value free speech. But removing one dangerous provision does not resolve the danger at the heart of the proposal.

Yesterday, the Albanese Government was reportedly preparing to scrap provisions allowing the Communications Minister to expand categories of online harm through regulation. Revised legislation is expected in Parliament this week, Thursday perhaps. The precise extent of the retreat must still be checked against the final text.

The proposal is called the Online Safety Amendment (Digital Duty of Care) Bill. Released as a draft in September, it would make online providers responsible for proactively addressing risks to Australian users. The Government says failure to comply could attract penalties of up to $109.2 million, enforced by the eSafety Commissioner, Australia’s online safety regulator.

The crucial question is straightforward: what happens to freedom of expression when carrying a controversial opinion becomes a financial risk?

The September draft reaches beyond social media to search engines, hosting services, app stores, internet carriage services and certain AI services. Providers must assess foreseeable risks, identify relevant content and take effective measures. Adults fall under a serious-harm standard; children receive broader protections, including against material encouraging “hostile attitudes towards women or gender equality”. The draft also expressly exempts lawful private communications solely between consenting adults.

The free speech danger lies in the pressure these obligations place on platforms. Broad content categories, preventive duties and enormous penalties encourage companies to restrict lawful expression before its legality is ever tested in court. A speaker can lose his audience without being charged with an offence, let alone convicted of one.

Consider a fierce argument about feminism, religious teaching about relations between men and women, or satire attacking a fashionable political doctrine. None should lose protection simply because someone labels it hostile. Yet a platform facing regulatory scrutiny must decide how much controversy it is prepared to carry.

The commercial incentive is obvious. Removing a disputed post can be cheaper than defending the decision to leave it available. Across millions of posts, that incentive threatens to narrow the public square according to corporate tolerance for legal risk.

That is censorship by proxy. Government does not need to prosecute the speaker when it can make the speaker’s access to an audience a liability for somebody else. The company presses the delete button, but Parliament creates the pressure behind that decision.

The Australian Human Rights Commission has itself warned that excessively broad rules can restrict access to information and participation online. That warning exposes the central problem: a law presented as protecting Australians can restrict their ability to speak and hear competing views.

Removing the minister’s power would close one route to expanding the scheme. It would leave the underlying pressure on platforms intact. A government should not make carrying lawful debate a financial liability in the first place.

Meanwhile, the Greens want stronger penalties tied to global revenue, a right for individuals to sue platforms for compensation, and tighter controls on addictive algorithms. Those demands are now part of negotiations over the legislation.

Adding the threat of private lawsuits to enormous regulatory penalties would intensify the pressure on platforms to suppress disputed speech. Faced with uncertain definitions and costly litigation, companies have a powerful incentive to delete first. The foreseeable consequence is Australians losing access to lawful arguments because hosting them becomes commercially dangerous.

The right to speak must not depend on whether a platform’s lawyers consider an opinion worth defending. Independent writers, religious communities, campaigners and ordinary citizens should not have to pass a corporate risk assessment to participate in public debate.

Political advocacy, religious teaching, journalism, academic argument and satire are freedoms Australians exercise, not privileges granted by the eSafety Commissioner.

Labor’s retreat is a reason to keep pressing. The Digital Duty of Care proposal should be scrapped.

“The freedom of Speech may be taken away, and, dumb and silent we may be led, like sheep, to the Slaughter.”
– George Washington