Safety by design: an idea whose time has come in Australia?

February 6, 2024

CMA’s President, Prof. of Law, Elizabeth Handsley, puts forward, ‘Safety by design: an idea whose time has come in Australia?

Imagine a world where you could let children go online with as much confidence as you can give them a glass of water out of the tap. Nobody expects parents of thirsty children to do their own water testing; rather we have significant government and industry investment in infrastructure, and accountability mechanisms to make a safe supply a virtual certainty. Yes, it’s not 100% – there are sometimes failures, like what happened in Sydney in 1998. But the very fact that a failure like that caused such uproar only proves the point: water safety is something we expect, and demand, as a society; and we’re confident we can achieve it.

Could internet safety be the same?

There is lots of discussion going on all over the world about children’s online safety, and one concept that keeps coming up is ‘safety by design’. It means we don’t just try to make the online world safer for children after it’s set up, rather we design the risks out of platforms and experiences from the start. This is not just likely to be more effective, it’s also fundamentally more respectful of children’s rights. It’s an approach that CMA strongly supports, because it puts children front and centre – they aren’t just an afterthought, as we so often find.

Lawmakers overseas are taking steps in the right direction. California passed the Age Appropriate Design Code in 2022, and other States look set to follow suit; and a recent report by the European Parliament calls for action on the risks of persuasive and addictive design. This kind of design is an issue for everybody, and even adults struggle to manage their time spent on devices, but for children it’s profound. According to 5Rights, there is evidence that ‘between a third and half of children rarely disconnect and worry they are addicted to the internet’.

While it’s encouraging to see active discussion in other parts of the world about countering these risks, we have to ask: what is Australia doing? There are many reviews and inquiries going on at the moment (see pages 4-5 here), about online safety, privacy and artificial intelligence for example, but little sign that our lawmakers are thinking about the question of service design.

As this is being written, I’m working on CMA’s submission on proposed amendments to the Basic Online Safety Expectation Determination. This is part of a complex and bewildering co-regulation system where the Parliament empowers the Minister to state the government’s expectations of online providers. The Determination, as it currently stands, says nothing about design. Perhaps it would make little difference to children’s rights and wellbeing even if there were expectations on design, considering the weakness of the regulation (online providers may only be required to report to the eSafety Commissioner about ‘compliance’ with those expectations; and if there has been a contravention the Commissioner can only prepare a statement to that effect, that she may or may not publish on her website).

Still, it would be excellent to see the Australian government address the way online services and experiences are designed, and this would be a good place to start.

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