Companies who sell age-checking software want Australia to grant the eSafety commissioner investigative powers to “test” if social media companies are using their technology properly.
The Age Verification Providers Association (AVPA) has backed Labor’s bill to strengthen Australia’s social media age laws and called on the federal government to go further with a mandatory audit of every platform captured by the under-16s ban.
The group warned social media giants could opt to wear fines, no matter how large, if it helped to sink the age laws.
Age-assurance companies, which often sign confidentiality agreements with social media platforms, also asked for legal protections for providing information “in good faith” to an eSafety investigation.
Support was mixed in submissions to a Senate inquiry into Labor’s proposal to double the maximum penalty to $99 million for tech companies that failed to take “reasonable steps” to enforce the age limit.
The bill would also allow eSafety to compel documents from social media platforms and third parties when investigating suspected systemic failures to uphold the ban.
Legal experts recommended Labor narrow the scope of these investigative powers to explicitly protect children and parents, while the tech sector opposed the larger fines.
Social media companies accused of wanting ban to fail
In a damning submission, the AVPA, which represents third-party age technology companies, warned big fines could still be seen as a “small price to pay” if copping them allowed Australia’s ban to be “wrongly” be portrayed as a failure.
Early research into the efficacy of the ban in preventing Australians aged under 16 from accessing the likes of TikTok, Snapchat, Facebook and Instagram has found the majority of young people are still able to log in to at least one platform.
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AVPA said expanding the eSafety commissioner’s power so it could compel documents from tech companies was “necessary to test whether social media platforms have effectively configured the age assurance systems they claim to have implemented”.
The group recommended Australia go further by having a “mandatory independent audit and certification requirement” for every social media platform captured by the ban.
“The expanded power will also reach our members … which are typically bound contractually by confidentiality obligations,” the submission said.
“Most such agreements already permit disclosure that is required by law, so compliance with a valid notice should not expose suppliers to significant contractual risk.”
Call to protect kids and parents in beefed-up law
The Law Council of Australia has made a submission flagging concerns the scope of the proposed section on information-gathering extended “beyond its intended operation”.
“As drafted, the provision appears capable of applying to any person, including end-users who are children and their parents or guardians, where they possess relevant information or documents,” the submission said.
The council recommended the bill be amended to ensure it “better reflects” the government’s policy intentions and provides “certainty” that children were not “inadvertently” captured by the expanded information-gathering power.
“If the power is not intended to apply to children and their parents or guardians, its scope should be revised to ensure that it is appropriately targeted,” it said.
Communications Minister Anika Wells said eSafety would not compel documents from children and parents because “everyday Australians” did not have evidence of “systemic non-compliance with the law by billion-dollar tech companies”.
Anika Wells reassures parents that the strengthened powers are intended to target third-party companies, such as age assurance technology providers. (ABC News: Joel Wilson)
“Instead, these strengthened powers are intended to target third-party companies, such as age assurance technology providers and app-stores, where the eSafety commissioner suspects they may hold evidence of systemic non-compliance,” she said.
“We know social media companies are doing the bare minimum to comply with our social media minimum age law; that’s why we are strengthening eSafety’s powers and doubling fines for non-compliance.”
Tech companies oppose tougher fines
Digital Industry Group Inc (DIGI), an industry group that advocates on behalf of the sector in Australia, has criticised the proposed bill, arguing the government had not tested if gaps in enforcement could be addressed in other ways.
It also opposed the doubling of the maximum penalty because, with no fines yet issued, it was not clear if there was a “link” between the dollar figure and the effectiveness of the age ban.
DIGI said the eSafety commissioner already had an “extensive suite of investigative and enforcement powers” related to the social media age restrictions and argued the government should be clear about any “deficiency” the new bill was trying to remedy.
The group raised concerns about the new information and document-gathering powers being “very broad”, noting they were not limited to app stores and age-assurance providers.
“Australians should not have to rely on a regulator exercising restraint as the sole safeguard against the misuse of broad-ranging powers against individual citizens,”
the submission said.
DIGI said any increased powers should be accompanied by greater transparency about how they were used.
“Powers of this breadth should be matched by clear public reporting on the types of services and individuals to whom notices are issued, and the basis on which the commissioner decides to open an inquiry into a service or person,” the submission said.
eSafety can’t reach ‘onus of proof’ without documents
The eSafety commissioner has backed the expanded powers as currently any investigation into tech giants suspected of failing to take “reasonable steps” to block under-16s from their social media platforms relies on “representations” from those same companies.
“Without access to primary documents relevant to compliance with the [social media minimum age] obligation, the commissioner would likely be unable to discharge the onus of proof required in any civil penalty proceeding brought to the courts against a provider of a [platform],” eSafety said.
The commission said information and documents from third parties, such as age assurance providers, would be “instrumental” in determining whether the tech giants had taken sufficient steps to comply with Australia’s laws.
In its submission, eSafety also argued the “full suite” of investigative powers available to it elsewhere in the Online Safety Act, such as the ability to “compel witnesses to give evidence on oath or affirmation”, should apply uniformly.
