The Digital Duty of Care: Is it care or censorship?

When it comes to the legal obligations of individuals and institutions, there is a well-known principle called “duty of care”.  To meet duty of care obligations, individuals and institutions must take all reasonable steps to prevent harm, avoid injury and ensure the safety and wellbeing of others.  Because these obligations are intended to protect the welfare of others, duty of care obligations may be seen as generally positive. 

However, there is an obvious tipping point when it comes to duty of care in public governance.  In particular, hyper-regulation which begins to infringe on personal freedom is an area of concern for those who cherish individual autonomy and common sense.  Yet, governments often circumvent such concerns under the guise of public safety, often leading to the regulation of low-risk activities that limit personal choice beyond that which is reasonable.

The Australian Government has recently released a draft piece of legislation referred to as the Online Safety Amendment (Digital Duty of Care) Bill 2026.  If passed as currently drafted, the Bill would completely overhaul Australia's online safety regime and introduce a new statutory digital duty of care.  Although the target of these reforms are the larger social media platforms the legislation broadly captures “online services” including messaging, designated internet services, hosting providers, search engines, app stores and equipment providers tied to those services. 

So, what is it that the Australian Government is aiming to achieve?  One of the key initiatives is called “My Feed, My Way” which supports user control over algorithmically curated content.  But the proposed new laws will also put the onus on digital service providers to provide a safe online environment, setting minimum standards for the features and tools they use.  They will also be required to protect those under the age of 18 from: 

·        content that promotes, encourages or accelerates eating disorders;

·        content that promotes hostile ideas about women and gender equality;

·        pornography;

·        content that glorifies crime or life endangering stunts; and

·        content that causes serious mental health distress, including abuse and bullying.

Although all of this sounds overwhelmingly positive, the breadth of the proposed legislation means the regime could apply to a much wider range of institutions than traditional online safety laws.  This is what has immediately sparked concern amongst those who advocate for religious freedom and freedom of speech.  In fact, the proposed laws are considered so Orwellian that they have caught the attention of the US Government who, in a statement dated 22 September 2026, said: “The United States has serious concerns about the Australian government’s stated goal of mandating broad duty of care requirements that dictate how platforms manage content and users’ feeds.”

Because most major social media platforms are headquartered in the US, the Trump Administration argues that although the laws would be specific to Australia, they would project Australian safety standards onto American users. As part of the aforementioned statement dated 22 September 2026, the US Government went on to say: “If Australia compels platforms to aggressively filter content in algorithmic feeds to satisfy a government mandate, and such filtering draws in protected speech, the effect on a disfavored speaker or media source’s reach would not be meaningfully different than outright removal.  The U.S. government would likely consider such a measure as facilitating censorship.”

It is that word “censorship” which also has Australians concerned.  In fact, along with the US Government, many are asking what safeguards will be written into the legislation to ensure that the biases and preferences of Australian government officials and regulators do not influence the censorship architecture in a way which disadvantages independent or minority views.  This concern was heightened after recent statements by the Communications Minister.  When asked about the definition of “harm” in the legislation and who ultimately decides how the definition is interpreted, she responded by saying (emphasis added), “The test for what would constitute a new serious harm would ultimately be, I guess, made by me on the expert technical advice of the eSafety Commissioner.”  

Within Australia, reactions to the draft legislation have been swift and negative.  Opposition Leader Angus Taylor has called the draft “a blank cheque for political censorship to the minister and to the government”.  Andrew Bushnell of the Institute of Public Affairs wrote, “The proposed digital duty of care is an undemocratic and draconian government power grab that would crush freedom of speech on the internet.” Leader of the One Nation party, Pauline Hanson, accused the government of “copying the Chinese Communist Party’s censorship playbook” and warned that Australia “should be moving away from government censorship, not building the Orwellian machinery for it”.

To be clear, the draft does not ban Christian teaching.  But it does fail to provide an objective legal limit to the government’s power to determine what is unlawful content.  Additionally, because the laws would require online service providers to take proactive, reasonable steps to prevent reasonably foreseeable serious harm to their users, the terminology is so broad that it will likely encourage platforms to engage in pre-emptive censorship to avoid the risk of liability.  As a result, lawful religious, political and conscience-based speech could become collateral damage if platforms consider them too controversial or risky.

Public debate over the draft legislation will no doubt intensify as the government considers individual submissions.  What is already becoming clear is that there are significant concerns over the ability for Christians to maintain freedom of belief in the face of digital architecture which is no longer targeting crimes, it is targeting viewpoints.