The Digital Duty of Care: Albanese’s Sweeping Future Risk Online Content Control Regime

The Albanese government’s Digital Duty of Care proposal now before federal parliament is said to be about protecting average Australians from online harms – think, child pornography or the incitement to acts of terrorism. And the proposed regime is a complete break from past systems designed to make the internet safe, as it involves a risk management approach to prevent potential future harms.

Australian communications minister Annika Wells introduced the much-anticipated Online Safety Amendment (Digital Duty of Care) Bill 2026 on 15 October 2026. These laws include the key “my feed, my way” proposal, which requires digital platforms to provide users with a capability to optout from having a regular algorithm-controlled feed, so that content is solely based on user choice.

The imposition of the proposed digital duty of care would further be a gamechanger in terms of the current way of dealing with harmful online content that comprises a case-by-case management basis, as it rather puts the onus on online service providers to create an environment that prevents harmful content from appearing in the first place.

This new digital duty of care regime is being rolled out at the same time as the Albanese government is encouraging Silicon Valley tech companies to invest in environmentally-devastating AI generating datacentres in Australia. And whilst the push for both massive datacentre expansion and a strict regime of online content control may seem contradictory, the Labor government doesn’t think so.

But whilst the US Trump administration is advocating for the rollout of datacentres in the Australian setting, the MAGA White House has made clear that it considers Labor’s spruiked digital duty of care an illegitimate threat to American free speech online, and with the local footprint of the US military ever-expanding, the proposed duty of care regime may cause a rift in the US-Australia alliance.

“A constantly evolving digital world”

“The core of the digital duty of care is to provide a safe online environment, where all Australians are protected from seriously harmful and illegal content,” minister Wells said in her 15 October 2026 second reading speech on the bill. “It moves the safety net upstream to the people who design the product to stop the harm, before it ever reaches an Australian user.”

“Like when you buy a new appliance,” the communication minister continued, “the government sets minimum safety standards, but ultimately what you choose to buy is up to you, as long as it’s legal and safe. The digital duty of care also sets minimum standards for the features and tools that tech companies use. Online service providers will have to conduct annual risk assessments.”

Wells described the existing online safety network in the Online Safety Act 2021 (Cth) as one of the most comprehensive in the world. This regime “empowers the eSafety commissioner” to present online digital platforms with takedown notices to require them to remove illegal or “seriously harmful material, including image-based abuse” within 24 hours, via the threat of steep fines.

The new laws will require digital platforms to provide users with “empowerment tools” to facilitate opting out of regular algorithmic control. Special restrictions for under 18-year-olds are too being rolled out. These protections of minors follow restrictions being placed on children under 16 years old from being able to access and use social media platforms that took effect in December 2025.

“If the digital duty of care passes through parliament and royal assent, a 12-month transitional period will be in place before the digital duty of care comes into effect,” Wells further insisted.

“This transitional period will provide time for the making of any necessary rules and regulatory guidance material to ensure industry is able to put in place measures to meet the new compliance requirements in time for the digital duty of care to come into effect.”

The guts of the massive bill

The Digital Duty of Care Bill is 90 pages long. And it sweeps away the industry codes and standards that were developed by tech companies and industry bodies since the Act was originally rolled out in 2021, and it replaces them with one overriding duty that all covered online service entities have to abide by.

The legislation initially serves to strengthen the “takedown notice” regime, so that further than just supplying “end-user notices” to those who target a child for cyber-bullying, or “removal notices” to users targeting adults with cyber-abuse, the eSafety commissioner will too be able to serve internet search engines with related “link-deletion notices”.

The maximum civil penalties for an individual breaching takedown notice laws will be upped to $2.184 million, whilst for body corporates it is $10.92 million. The maximum penalty for body corporates is five times that for natural persons, as per subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth). So, the listed penalty is upped by the courts in this manner.

Newly replaced part 2 of the Act establishes that persons in charge of online services have a “digital duty of care” to protect people, especially children, from online harms. This will involve producing annual assessments of their online services for potential risks, and it can require the provision of empowerment tools to be provided to users, which provides them with control over their content.

A new definition of online services broadens the scope to include internet carriage services, social media, electronic services, designated internet services, a hosting service, internet search engines, app distribution services, AI (artificial intelligence) generating services and services that manufacture and maintain online equipment.

The exposure draft of the Digital Duty of Care Bill was released in September, and it included a clause to allow the communications minister to expand the categories of online harmful materials. This caused public outcry, especially in terms of a perceived ability to curb content critical of government policy. So, specific harms have now been listed, and parliament will need to make any changes.

Seriously harmful material and conduct includes that which promotes child sexual exploitation, child sexual abuse or the grooming of children, incitement of sexual violence, fake nudes, revenge porn, extreme violence or cruelty, physical violence, including rape and death threats, gender-based violence, menacing or harassing of individuals, suicide, self-harm, cruelty toward animals, terrorism materials, commission of federal offences, violent extremism and “abhorrent violent conduct”.

In terms of materials specifically restricted for minors, this includes pornography, encouragement of eating disorders, hostile attitudes towards women, encouraging dangerous stunts, abuse, harassment or bullying and material that may cause harm to children or is harmful to children.

The new regime also provides a list of online materials that will not be subjected to the duty, which includes a public official’s duties, court or tribunal proceedings, entertainment, professional news, materials to assist in scientific, medical, academic or historical research, or the promotion of public health and wellbeing or reducing harm to individuals, or material that is in the public interest.

Under the new regime, an individual who fails to comply with the digital duty of care can face a maximum penalty of a $21.84 million fine, whilst for body corporates this translates to $109.2 million.

Some of the most controversial measures are the so-called “sock puppet” laws. Sock puppet identities are defined, under new section 205G, as “a false or fictitious identity assumed by a person in the course of using, or carrying out any activity in relation to, an online service”. So, new powers are created to allow “approved researchers” and the commissioner to assume such identities.

New section 205K of the Act would allow researchers and the commissioner to undertake the following whilst appearing online with a fake identity: create an account for an online service, observe, download or make a record of material on the online service, engage with the service or the person responsible for it, engage with a user of the service, test the features of the online service and test the response the service makes to their actions online.

Trumpian misgivings

US president Donald Trump has set US AI companies off on a race against China to develop the best AI. This involves a no-holds-barred approach to developing the technology, and further, the promotion of the construction of AI generating datacentres that serve to hasten this competition between nations. And the proliferation of datacentres down under is a further part of this process.

The Trump administration made clear that it is none-too-pleased with Albanese’s plan to impose a digital duty of care upon the online environment, and it set out its misgiving in the submission titled, the US Government Response to the Australian Consultation on the Online Safety Amendment (Digital Duty of Care) Bill 2026, in response to the bill’s exposure draft, on 22 September 2026.

“Preserving a free, open internet and protecting freedom of expression online are top priorities for the Trump administration,” the US submission explains.

“Our objective is to ensure that any resulting measures respect freedom of expression and fair competition, by avoiding restrictions on speech that should be protected, and preventing prescriptive product design mandates or expanded litigation risks that unduly burden American companies.”

The US states that it is concerned with how government is to designate a “foreseeable risk” in terms of online services, as well as calling out any requirement that online services “alter their algorithmic systems to suppress expression”, as this should rather “be protected”, or otherwise, if there is no requirement, it’s concerned with laws that push platforms to preemptively censor materials.

Further, the Trump administration concerns include the imposition of “rigid, one-size-fits-all platform design requirements” and enforcement to curb vaguely defined harms. The US rejects efforts that may curb journalism, it pushed for further clarification on how government will identify risks and harms, and it decried strict algorithmic controls that may censoriously curb protected speech.

The White House is further concerned as the duty of care regime will have extraterritorial reach that will affect US persons and companies online. These elements could further have economic bearing on how fair competition and market access appears for US companies. The US too points to the existing Australian online safety regime to question why any further measures are being sought.

The Digital Duty of Care Bill was sent to the Senate Standing Committee on Environment and Communications for review on 15 October 2026. The committee is taking submissions on the bill up until 30 October, and it will then report back to parliament on the legislation by 20 November 2026.

Image: Official portrait of Anthony Albanese 2022 by Commonwealth of Australia is licensed under CC BY 4.0. Donald Trump by Daniel Torok is in the public domain. Annika Wells by DFAT is licensed under CC BY 4.0