New Obligations and Expectations for Online Services
On 8 September 2026, the Australian Government released the exposure draft of the Online Safety Amendment (Digital Duty of Care) Bill 2026, proposing a significant expansion of Australia's online safety framework and a new statutory duty requiring online service providers to take proactive steps to prevent foreseeable harms on their platforms. A failure to comply with the Digital Duty of Care could expose companies to penalties of up to $109.2 million.
The framework took shape in May 2026 with the release of an issues paper built around five guiding principles: improving online safety, providing regulatory certainty, strengthening existing protections, enhancing accountability and transparency, and maintaining flexibility in the face of technological change.
New Duty, New Standard
The proposed Digital Duty of Care shifts attention to the systems, features and design choices that may contribute to harm in the first place, rather than focusing solely on harmful content after it appears. At the centre of the draft legislation is a statutory obligation requiring providers to ensure, so far as reasonably practicable, a safe online environment.
The "reasonably practicable" standard is deliberately broad. Although the draft bill identifies factors that must be considered, its practical boundaries are likely to be shaped by future regulatory guidance, enforcement activity and judicial interpretation.
The focus is not whether harm occurred, but whether the provider took all reasonably practicable steps to prevent it. The proposed duty would apply beyond social media platforms to other online services, including messaging services, search engines, app stores, hosting providers and AI services. Responsibility may also extend beyond the service provider itself to any person exercising day to day control over the service.
Algorithms Under The Regulatory Microscope
Perhaps the most significant feature of the draft bill is its focus on platform design. The legislation specifically identifies algorithmic recommendation systems, infinite scrolling feeds, engagement metrics, disappearing content and other user engagement features as potential sources of harm. The proposed "My Feed, My Way" initiative reflects this approach. Social media platforms would be required to give users a choice between algorithmically curated content and content from accounts they deliberately choose to follow. The focus is no longer just content moderation. It is platform architecture.
The draft bill also significantly expands the powers of the eSafety Commissioner, including the ability to compel information, require transparency reports, issue remedial directions and demand corrective action where compliance concerns arise. This has attracted criticism, with some stakeholders expressing concern that the framework confers broad discretionary powers on government and the eSafety Commissioner to determine what constitutes "harmful" content and conduct.
Looking Ahead
The Digital Duty of Care is not yet law. The exposure draft remains subject to consultation and parliamentary approval before it can be enacted. If passed, the framework is intended to commence 12 months after Royal Assent, giving organisations a limited period to prepare.
Its direction, however, is clear. Australia is moving towards a safety by design model that places greater responsibility on online service providers to identify, assess and mitigate foreseeable risks.
Businesses should assess whether they fall within scope, determine whether a duty of care may arise, and review their governance, risk management and platform design practices before consultation gives way to compliance.
Contact Wadlow Solicitors or call (08) 8212 2955 to schedule an appointment.
Liberal Party of Australia, ‘Coalition Opposes Labor’s Digital Duty of Care Bill in Its Current Form’ (Media Release, 10 September 2026) <https://www.liberal.org.au/2026/09/10/coalition-opposes-labors-digital-duty-of-care-bill-its-current-form>.
Lisa M Given, ‘Digital Duty of Care Laws Will Force Tech Platforms to Look After Users’ (2026) The Conversation <https://theconversation.com/digital-duty-of-care-laws-will-force-tech-platforms-to-look-after-users-291375>.
Leon Chung, Rachel Holland, George Psaltis, Mark Smyth, Kwok Tang and Christine Wong, ‘Digital Duty of Care Proposed for Online Services: The Next Phase of Australia’s Online Safety Reforms’ (10 September 2026) JD Supra <https://www.jdsupra.com/legalnews/digital-duty-of-care-proposed-for-4106541/>.
Australia, Online Safety Amendment (Digital Duty of Care) Bill 2026 (Exposure Draft, 8 September 2026).
Anika Wells and Anthony Albanese, ‘My Feed, My Way’ (Media Release, 8 September 2026) Australian Government, Department of Infrastructure, Transport, Regional Development, Communications and the Arts <https://minister.infrastructure.gov.au/wells/media-release/my-feed-my-way>.
