SYDNEY — Australia’s online safety regulator, eSafety, is reviewing the final draft of proposed safety codes that include a requirement for adult sites to implement age assurance measures for Australian users.
The proposed rules were submitted on Feb. 28 by a “steering group of industry associations that represent the online industry.” That advisory group includes the Australian Mobile Telecommunications Association, Communications Alliance, the Consumer Electronics Suppliers Association, the Digital Industry Group Inc. and the Interactive Games and Entertainment Association. The group’s input was solicited by eSafety in accordance with the Australia’s 2021 Online Safety Act.
Under the final draft codes, sites and platforms that have “the sole or predominant purpose” of providing online pornography are classified as “high impact class 2 designated internet services.” Should the eSafety commissioner move ahead with implementing the new regulations as written, such services will be required to comply with a number of new rules.
One of those rules requires that services “must, where technically feasible and reasonably practicable, implement: (a) appropriate age assurance measures; and (b) access control measures, before providing access to the designated internet service or the relevant high impact materials.”
“High impact” materials include adult content and other material inappropriate for minors.
Commenting on the vagueness of the wording in the proposed rule, industry attorney Corey D. Silverstein told XBIZ, “Thankfully there is some time before the proposed rules become the law because most definitely, website operators, lawyers and anyone who can read the English language are going to be trying to figure out what 'where technically feasible and reasonably practicable' means. I have long been frustrated by lawmakers proposing regulations that are overly vague and ambiguous, to the point where everyone is left scratching their heads. I hope and suspect that eSafety will provide some clear guidance on how website operators must interpret this confusing rule.”
In a statement, eSafety announced that the office will now “review the Codes and determine whether they provide appropriate community safeguards for the Australian community.” The eSafety commissioner can then either “register” the codes, rendering them mandatory and enforceable — or alternatively, can determine different standards.
FSC Concerns Disregarded
In the course of public consultation on the draft codes, Free Speech Coalition (FSC) requested several changes, but according to FSC Executive Director Alison Boden, none of those changes were incorporated into the final product.
Boden told XBIZ that the group shared its concern that website-level age verification mandates do not effectively prevent access to adult content and push minors toward riskier online environments. FSC instead recommended an account/device ecosystem-based approach where age is verified at the device or OS level, reducing data-sharing risks.
FSC also objected to a requirement for adult sites to provide “counseling and support services” to users, as such a requirement implies that legal adult content is inherently harmful. That language remains in the final draft codes.
In addition, FSC found that age assurance requirements under the codes are more stringent for adult websites than for mixed-content sites such as social media and search engines. The trade organization urged a more uniform risk-based approach, since children are more likely to encounter adult content on social media or search engines.
“Our most significant feedback — replacing site-level age verification with an account/device ecosystem-based approach — was not adopted,” Boden reported. “Social media and search engines still escape equivalent requirements, even though research shows they are a major source of exposure for minors. Privacy concerns and data minimization issues were ignored.”
Australia’s Seesawing Attitude Toward AV
In March 2023, eSafety commissioner Julie Inman Grant submitted a “Roadmap” for potentially imposing age verification requirements on porn sites. Calling the age assurance market “immature but developing,” that report recommended that the Australian government should conduct a pilot program before seeking to mandate age assurance.
Responding a few months later, the government initially seemed to put the brakes on AV efforts, stating that “a decision to mandate age assurance is not ready to be taken.” It also deferred the suggestion of a pilot program.
In May 2024, however, the government did an about-face by greenlighting such a program. In November, it chose the Age Check Certification Scheme (ACCS) to run its Age Assurance Technology Trial, in order to “determine the effectiveness of available technologies to better protect young people by limiting their access to harmful and inappropriate content online.”
A final report on the trial is expected later this year.
