Next month, the Albanese government is expected to introduce legislation that could result in the suppression of free speech online.

The Digital Duty of Care proposal requires social media platforms to proactively identify and remove content deemed “harmful” before any regulator makes a finding. Platforms that fail to comply face multi-million dollar fines.

The proposal does not precisely define what “harmful” means, and many fear this could be used as an excuse to silence political dissent and faith-based speech. Senator Alex Antic has warned that this proposal is a repackaged version of Albanese’s abandoned misinformation and disinformation bill.

“Fundamentally, this means the regulation of online spaces would shift from tangible content regulation to a risk management model, making it subjective,” Senator Antic said in a video posted to his YouTube account.

“What this new framework would do is create a model such that when a social media platform is perceived not to be doing enough to remove or prevent harmful content of its own initiative, then this could incur significant financial penalties.”

Under the proposal, the eSafety Commissioner’s powers would be expanded to be the deciding voice on contentious content. Consider what this has looked like in practice.

In 2024, the Commissioner issued a removal notice against a post by Canadian activist Christopher Elston, also known as Billboard Chris. Elston shared a news article about a transgender activist’s appointment to a WHO panel, criticising the appointment.

The Administrative Review Tribunal overturned it as the post did not constitute cyber-abuse. No reasonable person, the Tribunal found, would conclude it was intended to cause serious harm.

More recently, the Commissioner initially cleared a Substack article by feminist journalist Genevieve Gluck about an Australian Medical Association employee’s publicly-posted conduct. She then reversed that decision, and threatened X with a $910,000 fine if the article was not removed. No court had found the content unlawful.

The Commissioner changed her own mind – and then reached for the largest penalty available.

Under the Digital Duty of Care, these processes would not have run their course. Social media companies facing million-dollar fines for non-compliance have every financial incentive to remove content before any notice arrives. The Tribunal’s protection becomes irrelevant when the post is already gone.

The financial logic is straightforward: a hefty fine for non-compliance; no penalty for removing speech that turns out to be lawful. There is a financial incentive for companies to censor free speech when the cost of removing speech is borne by the person censored but the cost of not removing it is borne by the platform.

As Senator Antic pointed out, this is not a new ambition. The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 sought a comparable power and was withdrawn in November 2024 after facing opposition across the Senate. The Digital Duty of Care does not reintroduce this power directly. It extends the Commissioner’s existing mandate to reach the same destination by a different road.

In the United Kingdom, where comparable online safety legislation has operated, prosecutions for social media posts determined to be “harmful” have followed. Australia is now consulting on a mechanism that would give the Commissioner the foundation to do the same.

Such power over speech should not be left in the hands of one unelected bureaucrat.