Proxies & Principles

By John Ogilvie

A few things have happened over the week since I posted my article on the Albanese Government’s moves to strengthen enforcement of its social media laws

The Online Safety Amendment (Strengthening Enforcement for the Social Media Minimum Age) Bill 2026 passed the House of Representatives on July 1st. It would double maximum penalties for non-compliant platforms and expand the eSafety Commissioner’s powers to compel documents and information.

The Coalition and Greens, however, referred the bill to an eight-week Senate inquiry, citing concerns that it was being rushed through in the final sitting days before the winter recess. The inquiry is due to report on 25 August, meaning the Senate is unlikely to debate and vote on the amendments until late August or September at the earliest.

This procedural delay is real, but it sits inside a larger shift. The Government is also in the early stages of developing a Digital Duty of Care, a more fundamental change to the regulatory model.

Digital Duty of Care:

The current regulatory framework is largely reactive (users report harms, the eSafety Commissioner investigates specific complaints, and enforcement follows). What this digital duty of care would do is shift to a more proactive, duty-based model. An issue paper on the framework was released in May following consultations.

Online service providers would have to identify risks of serious online harms to Australians (or what the government considers “serious harms”). Platforms would then have to take what the government would define as “reasonable steps” to mitigate those risks through design, policies and processes. Proponents often pitch it as a proactive way to get online service providers to take more responsibility for the content on their platforms and to make the space safer for everybody. But there are serious concerns about what this could mean for freedom of expression and privacy.

What does this look like in real life? There’s already a practical example of what this looks like with the UK Online Safety Act. Faced with the threat of massive fines and legal action, platforms are very aggressive about removing content that could offend the sensibilities of government regulators.

This means that if you post something that’s lawful but perhaps considered edgy or controversial by some people, online platforms are more than likely to take it down to avoid risking massive fines or other legal consequences. Such an environment would have a chilling effect on speech, reduce viewpoint diversity, and would hit smaller platforms the hardest.

The “reasonable steps” language also gives regulators like the eSafety Commissioner wide discretion exactly the sort of vague standard that tends to expand over time through enforcement actions and guidance. The power expansions for the eSafety Commissioner that the Government has just tabled are already moving towards a more investigative, fishing-expedition style of regulation. Layer a general duty of care on top, and you get a regime where online platforms are constantly going to be second-guessing what the regulator may later decide was “foreseeable harm.”

In the face of such regulations, the rational response from platforms (especially small ones, that would not be able to tank much in the way of fines), would be to take an extremely conservative approach to content moderation.

It will effectively lead to government censorship by proxy.

The Legal Reality

One of the core assumptions being made by the government is that they can simply fine the social media companies into compliance. There are several major problems here that very few people are talking about.

The vast majority of major social media companies are based in the United States of America. The First Amendment to the United States Constitution guarantees that Americans have ironclad protections for freedom of speech (as far as state action goes).

The U.S. Supreme Court has ruled in several landmark cases ( Tinker v. Des Moines 1969, Brown v. Entertainment Merchants Association 2011, etc.) that minors possess the same First Amendment rights as adults.

If a social media company were fined by the Australian Government for content posted on their platform, it’s highly unlikely that an American court would enforce the fine (unless the content were illegal).

There’s another layer to this. In the landmark 1997 SCOTUS case Reno v. American Civil Liberties Union , the Court ruled that Internet speech receives the highest level of First Amendment protection, and laws requiring or effectively forcing age verification to access protected speech are suspect, because they burden adults and chill expression. It also found that forcing users to identify themselves or forgo anonymity raises serious constitutional concerns.

This means that mandating age verification for social media within the United States is effectively unconstitutional. Any fines issued to an American company (by a foreign government) for refusing/failing to enforce adequate age verification measures would likely be dismissed by a US court.

While some companies like Meta will likely comply with Australian regulations to avoid fines (due to the large revenue they receive from Australian users), others (like X) will like opt not to, as they don’t make enough revenue from Australian users to justify paying the fines.

There’s real-world examples of how this plays out. For over a year now, the British Government has been in a dispute with infamous imageboard 4chan for refusing to comply with the Online Safety Act . The British government has fined 4chan multiple times, and the fines now total over £520,000.

4chan’s response? Their legal representative informed them that British law doesn’t apply to 4chan, as it’s an American company. Subsequent responses have also included AI-generated memes of cartoon hamsters.

This isn’t an isolated case. A report from March this year found that the UK has only received £55,000 out of the £3 million worth of fines that it has issued since the Online Safety Act became law. It reminds me of this scene from Team America .

The icing on the cake would be if they pay the fine in Monopoly money.

The reality is that issuing fines is largely an unenforceable strategy for getting US companies to comply with Australian age verification and censorship laws.

Geo-blocking is another tool in the regulator’s chest. But this can be easily bypassed with a VPN or other workaround.

The Ice just got Thinner

Not to be outdone by Sony, it seems that the Liberals are determined to win the ‘biggest PR blunder of the year’ award.

After seeing news that the Coalition voted to delay passage of Labor’s amendments, you may have thought that the Liberal Party had come to its senses. Unfortunately, it seems that such an assumption is incorrect. It sounds like the Liberal Party wants to turn this into a contest of which party can have the tougher stance regarding online safety and censorship.

This morning, on ABC Radio National, Shadow Communications Minister Sarah Henderson said:

“I think the [online safety] amendments before the Parliament need to be tougher.”

The Liberal Party spokesperson for communications believes that doubling the penalties to almost $100 million and giving the eSafety Commissioner even more power doesn’t go far enough. It’s impossible to read this as anything but an endorsement of even tougher censorship and Internet controls.

To say that such a statement is tone deaf would be a gross understatement. Throughout the Western world, there is massive backlash to government Internet restrictions.

Talk about snatching defeat from the jaws of victory. The Liberal Party’s image isn’t being helped by the fact that the Victorian Liberal Party is being plagued by yet another scandal.

But all is not lost. Not yet, anyway. The amendments won’t get a vote in the Senate until at least August 25th. This gives people plenty of time to get in touch with Liberal MPs in the House of Representatives and the Senate, and let them know that supporting any further restrictions on digital freedom is a complete non-starter.

It’s my opinion that many people within the parliamentary team of the Liberal Party don’t understand just how serious this issue is for many of its lay members. Lots of people within the lay party are already quietly debating whether or not to quit. If the parliamentary team votes to bring in even more restrictions on digital freedom, it could be the straw that breaks the back for many members. For an organization that is struggling and needs all the manpower it can get, it is beyond necessary that they don’t lose existing members.

In the past, parliamentary members of the Liberal Party have tried to justify supporting legislation like this (i.e. reductions in liberty) by saying that even though they may not support the legislation themselves, it’s pointless to oppose it because it will likely get passed anyway with the support of other parties.

This is a nonsensical argument. It’s a self-fulfilling prophecy. It’s the political equivalent of jumping off of a cliff just because everyone else is doing it.

The Party has no way of knowing what the outcome would be if they don’t actually make an effort to oppose or even strongly interrogate what is being proposed. The parliamentarians who make this argument also fail to understand (or are choosing to ignore) the fact that failing to oppose such illiberal laws has a profoundly negative effect on the morale of the membership.

Lay party members donate their time and money because they expect MPs to defend classical liberal principles when they are under pressure.

The trajectory here is clear. Moving from targeted rules on clearly illegal material toward systemic duties enforced by a powerful regulator with broad discretion. If the Liberal Party is going to endorse any sort of changes to the regulatory environment for the Internet, they have to (at the very least) ensure that there are rigorous protections for freedom of expression.

The Party cannot afford another hit at this stage, especially with the Victorian election just around the corner.

Time will tell.