Digital Duty of Care
Digital Duty of Care draft bill consultation
digitaldutyofcare@communications.gov.au
Dear Madam/Sir
Kindly accept this submission in relation to the above Bill
1. The concerns
We have previously set out a degree of skepticism about the claims made against social media in our submission on the under 16 social media ban https://qccl.org.au/newsblog/inquiry-into-the-under-16-social-media-ban
In the context of the current debate which has led to this legislation a number of concerns are expressed about social media.
They range from manipulation to addiction and various things in between.
Starting with manipulation, we cannot ban speech because people are being manipulated by it. People have been manipulated by speakers for thousands of years.
Greek and Roman writers on rhetoric recommended many devices to grab an audience’s attention and motivate it to do what the speaker wants including the chiasmus, which is exemplified by John F. Kennedy's famous line “Ask not what your country can do for you – ask what you can do for your country".
Also, the rule of three, an example of which is Julius Caesar’s “I came, I saw, I conquered”. This device is used because it has been found over time to be more memorable and persuasive.
Authors also seek to manipulate by the use of cliffhangers. But authors also choose to provoke anger and aggression in their readers by appealing to their grievances. The mechanisms involved are the same as those being used by social media[1].
Many of the techniques used by social media to grab and keep audience attention are used commonly by other organizations in society. One such technique is operant conditioning.
Praying on a regular basis as required by most, if not all, religions, would presumably qualify as operant conditioning.
The religious leaders' practices likely also rely on people's neurotransmitter system, for instance, by using — even if based on ancient experience rather than modern medical knowledge—the tendency of some religious practices to release dopamine
Religious leaders rely on social pressure to which the target is highly vulnerable, perhaps because of loneliness or sadness.
What are the claims of religious leaders about heaven and hell other than an attempt to manipulate the fears and concerns of actual and potential believers? Similarly, are fears of believers of the loss of support that would come if they were excommunicated.
Many of those who follow religious rituals and practice could be said to be addicted to it, in that obviously they gain some degree of comfort and satisfaction from it and would feel bad if they stopped.
Nor do these practices only occur in what are often called “cults.” The behaviors and appeals described above have been practiced since time immemorial in all of the world’s largest and established religions.
We turn now to the prospect of social media users becoming addicted to it.
To begin with we note that addiction is a contested concept with much debate about its exact nature[2].
Secondly, social media addiction is not recognized in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders [DSM] as a disorder.
This must be at least partly because a 2024 systematic review and meta-analysis published in JAMA Pediatrics analyzed studies examining the effects of social media use on the mental health among over one million adolescents worldwide concluded: “The findings in this study highlight a lack of research on clinical populations, a critical gap considering public concerns about the increase in adolescent mental health symptoms at clinical levels. This paucity of evidence not only restricts the generalizability of existing research but also hinders our ability to evaluate and compare the link between social media use and mental health in clinical vs nonclinical populations.”
We would also submit that there is a clear failure to distinguish between 3 different concepts – dependency, habit and addiction[3].
Dependence is a physiological adaptation in which abruptly stopping a substance produces withdrawal symptoms. Habits are behavioral patterns, often automatic, that people repeat because they find them pleasurable, comforting, or simply routine. A habit might include checking your social media every lunch time. We all have habits. The great Scottish Philosopher David Hume argued they are how we navigate the world. No doubt some habits are a waste of time - but that does not make them an illness.
Addiction by contrast is a disease which involves compulsive behaviour which leads people to repeat the activity even though it is harmful.
2. Duty of care and censorship
The denial by the Prime Minister and others that the duty of care is a form of censorship is laughable.
The Government's proposal to impose a ‘duty of care' on social media companies will delegate censorship powers to private companies. In the face of possible fines, the companies will err on the side of caution when deciding whether or not to remove content. It will almost inevitably result in the removal of legitimate expression.
3. Is a duty of care appropriate?
Assuming there is a problem to be addressed, is the imposition of a "duty of care" the appropriate response.
A duty of care is a common law concept. We would submit that it is not an appropriate model for this task.
Absent the intentional infliction of emotional harm, liability for psychological injury at common law involves the existence of some injury to person or property.
Nor does the common law usually impose duties of care for the conduct of third parties – as is proposed here. Social media companies will be made liable for the conduct of other people on their platforms.
As the Queensland Court of Appeal said in Ryan v Dearden [2021] QCA 245:
[17] In Smith v Leurs, Dixon J discussed the general rule that “one man is under no duty of controlling another man to prevent his doing damage to a third”. However, he said, there are “special relations” which can be the source of such a duty, instancing the duty of “a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger”.
[22] Apart from cases involving that element of control, there are other exceptions to the general rule as stated by Dixon J in Smith v Leurs. Dixon J also said:
“[A]part from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger.”
One analogy might be the liability of publicans for the behaviour of patrons. In Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108 the Queensland Court of Appeal held this is a very specific and far from absolute duty:
[50] In Club Italia (Geelong) Inc v Ritchie19, it was recognised a duty of care can exist on the operator of licensed premises, for injuries suffered as a consequence of the criminal actions of another which arose from disorder created by that operator. However, the form of that duty depended on whether the particular circumstances supported a conclusion the harm arose out of disorder as part of a state of affairs created by that operator.
[51] The importance of the particular circumstances to the form and content of any such duty was expressly recognised by the High Court in Adeels Palace Pty Ltd v Moubarak:
“In the circumstances reasonably contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. … it is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter or remain on those premises.”
[52]. That duty is not absolute. It is a duty to take reasonable care. In the context of the particular contentions in Adeels, namely, that the risk of any exchange of words between patrons would require an immediate and decisive response by persons having the authority of bouncers or crowd controllers, the High Court observed:
“Of course there is always a risk that there will be some altercation between patrons at almost any kind of event. And the risk of that happening is higher if the patrons are consuming alcohol. But unless the risk to be foreseen was a risk of a kind that called for, as a matter of reasonable precaution, the presence or physical authority of bouncers or crowd controllers to deal with it safely, failure to provide security of that kind would not be a breach of the relevant duty of care.”
In the context of social media there is much community concern about people being led into committing suicide. Again, the common law in this area is very clear – “a duty to protect a person from causing harm to himself or herself is rare or unusual.” Spigelman CJ[4].
There is very good reason for this as Lord Hoffman said “there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed.” [5]
The section on suicide is not limited to children.
And of course, this law imposes no liability to pay damages.
4. Privacy
In any event we say the best mechanism for protecting children and the rest of us on social media is to improve our privacy law.
It is the harvesting of personal data that allows social media companies to target people with material.
Privacy law should be amended to require stronger data minimisation and limit the ability of companies to use the data they do collect. Proposals for such laws already exist in the recent Privacy Act review. In particular, the recommendation to amend the Privacy Act to provide an overriding requirement that the collection and use of information must be fair and reasonable.
5. Algorithms
So far we have discussed the nature of the concerns which have generated this legislation and expressed the view that a duty of care is not an appropriate mechanism for addressing any legitimate issues with social media algorithms due to its greater risk of resulting in the censorship of legitimate speech.
What is the alternative? It is to regulate the use of specific algorithms where it has been demonstrated they cause harm.
But at this point censorship issues remain.
Algorithms can be regulated to the extent the regulation does not affect the content finding its way onto social media. The algorithms may also be regulated as hidden techniques that threaten audience interests[6].
So, what algorithms fall into this category. No matter how you theorize the nature of the free speech right of social media platforms[7] there can be no in principle objection to the regulation of infinite scroll[8], autoplay [9] or live streaming as these processes deal with the manner in which information is presented and not what information is given or received.
Our understanding of the public discussion leads us to conclude the infinite scrolling is seen as a major culprit. If a platform must stop scrolling infinitely, viewers will still be able to access all the material they want to access, and creators will still be able to reach much the same audience
6. Opt in /opt out
As we understand the Bill’s sections 25F- 25H are designed to achieve the government’s aim of allowing users the option to opt out of the algorithmic feed and receive a strict chronological feed from accounts they directly follow.
We have no in principle objection to this proposal[10].
A discussion of this issue is helped by drawing on the concepts of voice and forum from American First Amendment jurisprudence.[11] This is the difference between entities that express certain points of view and places where people express their views
Tim Scanlon explains this distinction in this way[12].
Individual speakers, newspapers and the publications of political candidates and parties, count as voices; street corners, town meetings, shopping centers, and many internet platforms count as forums.
The significance of the distinction for the question of governmental regulation is this: regulation of voices is objectionable if it interferes with the degree to which their content reflects the underlying decision-making processes on which its distinctive value depends: the decisions of the individual or of the group (e.g. the editors of the journal.)….
Some entities can be both voices and forums (or have “voice-like” and “forum-like” aspects.) A scientific journal is in one way a voice, since its value for audiences depends in part on the fact that the editors enforce standards of quality relevant to the discipline. On the other hand, it is, or is like, a forum, insofar as its value depends on the fact that, within the standards just mentioned, it is
Whilst it is true to a point that through algorithms social media platforms do select, filter and organize, content in a way similar to editors of magazines do, the major aspect of social media is its function as forums i.e. modern public squares i.e. the primary venues through which individuals communicate and engage with public affairs.
Some will say the algorithm is not a person and so therefore no person’s decision-making process is interfered with. However, algorithms have been (at least to date) designed by humans to achieve the objectives of those humans.
It might be said that this law would compel speech[13]. There are two aspects to compelled speech – the compelling of a person to speak rather than be silent. The second is compelling someone to use space they might have used for some other expression. This latter aspect is of course irrelevant on the internet.
In this case the first objection is irrelevant as the speaker continues to be able to speak what they wish and to the same potential audience. In other words, such a mechanism does not seriously impede the speaker’s speech right. It would be different if this were an opt-in model, which would be unacceptable.
The other main rationale for free speech is the audience’s right to receive information. Again, that interest is not impinged by an opt out model.
7. Particular clauses
We turn now, in the limited time available to proposed sections which define harmful “material and conduct”. In so far as they relate to children, as JS Mill argued, parents are not free to act as if their children are an extension of themselves and the State is entitled to intervene to protect the interests of children[14].
(a) Pornography
But of course, the problem in trying to protect children from the adverse impacts that they might experience from social media or any other form of media, has always been the same: protecting children cannot result in the reduction of adults to the same level as children.
In the past, of course protecting children from obscene material or pornography was relatively simple. The material was made available only in certain restricted places or at certain times where or when adults only were permitted. Or material was sold under covers, which made its content invisible to the passerby. These sorts of measures protected children, allowed those adults who were interested in the material to get access to it and did not impinge upon the rights of other adults who were offended by it.
Parents already have the tools they need to keep harmful content away from kids. Built-in parental controls allow them to set screen time limits, review app permissions (such as the child’s camera, location and contacts), block apps and approve downloads, block sites and filter content.
The Council’s understanding is that it remains true to say that in the case of adults it is explicitly violent sexual pornography (abusive porn) that causes serious impairment in adults.
The studies that refer to nonviolent erotica often find no effects or sometimes even positive effects. The conclusion that is drawn by many researchers is that it is the violence and not the sexual content that causes aggressive behaviour.
It is our view that the correct way to deal with this issue is to amend the provision to refer to violent and abusive pornography.
(b) Gender
This provision is in these terms: material or conduct that encourages or promotes hostile attitudes towards women or gender equality“
This provision is like any other hate speech provision: the test of free speech is whether you support it for those with whom you most disagree.
The potential breadth of the application of this clause can be found from these quotes from the Bible. Quite frankly literature all over the world is full of similar attitudes:
Timothy 2:12: “I do not permit a woman to teach or to exercise authority over a man; rather, she is to remain quiet”.
Corinthians 14:34–35: “The women should keep silent in the churches. For they are not permitted to speak, but should be in submission, as the Law also says.”
Genesis 3:16: God tells the woman after the fall, “Your desire shall be for your husband, and he shall rule over you”.
Ephesians 5:22: “Wives, submit to your own husbands, as to the Lord.”
Leviticus 15:20 “And everything on which she lies during her menstrual impurity shall be unclean. Everything also on which she sits shall be unclean.” —
Exodus 21: “If she does not please the master who has selected her for himself, he must let her be redeemed. He has no right to sell her to foreigners, because he has broken faith with her. If he selects her for his son, he must grant her the rights of a daughter. If he marries another woman, he must not deprive the first one of her food, clothing and marital rights.” - That is God himself saying you can buy as many wives as you can afford so long as you feed and clothe them. You can even return wives you don’t like, just not to foreigners!
(c) Violence and illegal conduct
A number of provisions relate to the promotion of violence, illegal conduct, harassment and bullying.
In our view in this context speech can only be suppressed if it is intended and likely to produce imminent lawless action. Otherwise, even speech that advocates violence is protected.
In the context of terrorism, expression which is intended to incite violence; is likely to incite such violence and where there is a direct connection between the expression and the likelihood of such violence can legitimately be prohibited.
Laws against harassment, stalking and the like do not offend against free-speech principles. Firstly, because such laws are directed at conduct, where speech is only usually an incidental component. Secondly, such laws are directed at communications to one person, and to whom the communications are intended to cause psychological harm, or the recipient has made it is clear, that they do not wish to receive those communications. Even when those communications are posted on a social media site, they are still directed at that person in circumstances where that person is an unwilling recipient of the communications. Furthermore, the recipient of those communications has very strong reasons for being protected against the speech acts, and there is no issue of wanting to engage in political arguments.
(d) Ministerial power- proposed section 25C(2)
This is the much-discussed provision that allows the Minister to add to the list of harmful material or conduct by disallowable instrument.
This legislation delegates to the Minister a power to affect one of the fundamental rights of all Australians, the right to freedom of speech. It is our position that the Parliament should not delegate its power to make laws on this topic, at least when it comes to political speech. There is nothing in the proposed section that prevents a Minister determining that some political speech is harmful.
That the instrument is subject to disallowance does not alter this submission. The facts are that parliamentarians have little time and energy to review delegated legislation, with the result that it is not an effective check on executive power.[15]
We trust this is of assistance to you in your deliberations.
[1] Simeng Gu, Wei Wang, Fushun Wang & Jason H. Huang, Neuromodulator and Emotion Biomarker for Stress Induced Mental Disorders, 2016 NEURAL PLASTICITY 1, 2 (2016) (stress induced activation of norepinephrine neurotransmission)
[2] Heather N, Best D, Kawalek A, Field M, Lewis M, Rotgers F, et al. Challenging the brain disease model of addiction: European launch of the addiction theory network. Addict Res Theory. 2018;26:249–55.
[3] Jeffrey A Singer Stop Saying Social Media ‘Addiction' Medpage Today 20 September 2018 – what follows draws on this article
[4] AMP General Insurance Ltd V RTA (NSW); Roads & Traffic Authority Of NSW v AMP General Insurance Ltd [2001] NSWCA 186 at [9]
[5] Cited by Spigelman CJ ibid [6]
[6] Scanlon Freedom of expression and categories of expression in TM Scanlon The difficulty of Tolerance Cambridge University of Press page 111
[7] As to which see below under “opt in opt out”
[8] defined as “content that loads as the user scrolls down the page without the need to open a separate page” or “the use of pages with no visible or apparent end or page breaks.
[9] “video that begins to play without the user first clicking on the video or on a play button for that video
[10] Though it must be asked who is going to make use of this option, particularly on a platform like YouTube
[11] The US Supreme Court has made it clear that it considers social media platforms to be voices - - Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, 603 U.S. 707 (2024. This law and perhaps most attempts to regulate algorithms would most likely be found to violate the US First Amendment as infringements of the social media company’s “editorial” prerogative - Courtright v. Epic Games, Inc., 795 F. Supp. 3d 1156 (2025)
[12] TM Scanlon A Framework for Thinking about Freedom of Speech, and Some of its Implications. A lecture delivered in 2018 and found at https://www.law.berkeley.edu/wp-content/uploads/2018/10/Freedom-of-Speech-Berkeley.pdf
[13] For a useful discussion of the issue of compelled speech see Spencer G. Livingstone Two Models of the Right to not Speak Harvard Law Review [Vol. 133:2359 ]
[14] Mill On Liberty etc Three Essays by JS Mill Oxford University Press 1969 pages 128-9
[15] Andrew Edgar Administrative Regulation-Making: Contrasting Parliamentary and Deliberative Legitimacy (2017) 40(3) Melbourne University Law Review 738 at pages 740-1 see also House of Representatives Practice (7th Ed) “Of the hundreds of pieces of delegated legislation presented each year very few are ever formally considered, let alone disallowed, by the House”