A Bill for an Act about social media services, and for related purposes
The Parliament of Australia enacts:
Part 1—Preliminary
Division 1—Preliminary
1 Short title
This Act is the Social Media (Protecting Australians From Censorship) Act 2022.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Division 2—Definitions
3 Definitions
In this Act:
account has the same meaning as in the Online Safety Act 2021.
ACMA means the Australian Communications and Media Authority.
algorithm means a mathematical set of rules that:
(a) both:
(i) specifies how a group of data behaves; and
(ii) will assist in ranking search results and maintaining order; or
(b) is used in sorting or ranking content or material based on relevancy or other factors instead of using published time or chronological order of such content or material.
anti‑censorship notice means a notice given under section 14.
Australia, when used in a geographical sense, includes all the external Territories.
Australian means an individual who is ordinarily resident in Australia.
candidate: see section 5.
censors:
(a) a post—see subsection 8(4); or
(b) philosophical discourse—see subsection 9(2).
civil penalty provision has the same meaning as in the Regulatory Powers Act.
de‑platform: see subsection 8(3).
de‑prioritising: see subsection 8(5).
election means:
(a) an election of a member of the House of Representatives; or
(b) an election of senators for a State or Territory.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
large foreign social media service: see section 4.
legislative rules means rules made under section 40.
material has the same meaning as in the Online Safety Act 2021.
member of Parliament means a member within the meaning of the Parliamentary Business Resources Act 2017.
Note: See also section 5.
philosophical: see subsection 9(3).
post of an end‑user of a social media service means material posted (within the meaning of the Online Safety Act 2021) by the end‑user.
protected person: see subsection 8(2).
provider of a social media service means a provider (within the meaning of the Online Safety Act 2021) that is a corporation to which paragraph 51(xx) of the Constitution applies.
registered political party has the same meaning in the Commonwealth Electoral Act 1918.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
removed from a social media service has the same meaning as in the Online Safety Act 2021.
social media service has the same meaning as in the Online Safety Act 2021.
Note: A service is not a social media service if none of the material on the service is accessible to, or delivered to, one or more end‑users in Australia: see paragraph 13(4)(a) of the Online Safety Act 2021.
terms of use has the same meaning as in the Online Safety Act 2021.
use has the same meaning as in the Online Safety Act 2021.
4 Large foreign social media services
(1) Each of the following is a large foreign social media service:
(a) Facebook;
(b) Twitter;
(c) YouTube;
(d) Instagram;
(e) WeChat;
(f) TikTok;
(g) a social media service declared to be a large foreign social media service under subsection (2).
(2) For the purposes of paragraph (1)(g), the Minister may, by legislative instrument, declare a particular social media service to be a large foreign social media service.
(3) Subsection 13(3) of the Legislation Act 2003 does not apply to a declaration made under subsection (2) of this section.
(4) If:
(a) either House of the Parliament declares a particular social media service to be a large foreign social media service; and
(b) otherwise than as mentioned in subsection (5), the other House agrees to that declaration;
the Minister is taken to have declared the particular social media service to be a large foreign social media service under subsection (2), with effect from the 28th day after the day on which that other House agrees to the declaration.
(5) If notice of a motion for a declaration of a particular social media service as a large foreign social media service is given in a House, and within 15 sitting days of that House after the notice has been given:
(a) the notice has not been withdrawn and the motion has not been called on; or
(b) the motion has been called on and moved and has not been withdrawn or otherwise disposed of;
the declaration shall then be taken to have been made by that House.
5 Candidates and members of Parliament
Candidates
(1) For the purposes of this Act, a person is taken:
(a) to begin to be a candidate in an election on the day the person nominates as a candidate in the election under the Commonwealth Electoral Act 1918; and
(b) to cease to be a candidate at the end of 30 days after the polling day in the election.
State senators
(2) For the purposes of this Act, if:
(a) a person is a senator of a State; and
(b) the Senate is dissolved during the person’s term of service as a Senator;
the person is taken to remain a member of Parliament throughout the period starting at that dissolution and ending on:
(c) if the person is a candidate at the first Senate election for the State after that dissolution—the polling day for the election; or
(d) otherwise—the day of the dissolution.
Territory senators and members of the House of Representatives
(3) For the purposes of this Act, if:
(a) a person is:
(i) a senator of a Territory; or
(ii) a member of the House of Representatives; and
(b) the House of Representatives is dissolved or expires during the person’s term of service as a Senator;
the person is taken to remain a member of Parliament throughout the period starting at that dissolution or expiration and ending on:
(c) if the person is a candidate at the first Senate election for the Territory, or the first election of the House of Representatives, (as the case requires) after that dissolution or expiration:
(i) if the person is re‑elected—the day the person is re‑elected; or
(ii) otherwise—the polling day for the election; or
(d) otherwise—the day of the dissolution or expiry.
When a senator or member is elected
(4) For the purposes subsections (2) and (3), a person who is a senator or member of the House of Representatives is elected (including by re‑election) on:
(a) if the person is elected as the result of a polling—the polling day for the election; or
(b) otherwise—the day the person is declared duly elected.
Division 3—Other matters
6 Application of this Act
(1) This Act extends to every external Territory.
(2) This Act extends to acts, omissions, matters and things outside Australia.
7 Computer programs and algorithms
If a computer program or algorithm that forms part of a social media service produces a result at a particular time, the provider of the social media service is taken to have engaged in conduct at that time for the purpose of producing that result.
Part 2—Prohibited censorship
8 Protecting politicians and journalistic enterprises from censorship
(1) The provider of a large foreign social media service must not:
(a) de‑platform a protected person; or
(b) censor a post of a protected person.
Civil penalty: 5,000 penalty units.
(2) A protected person is:
(a) any of the following:
(i) a member of Parliament;
(ii) a candidate in an election;
(iii) a registered political party; or
(b) an Australian journalistic enterprise.
De‑platforming
(3) Without limiting the circumstances in which the provider of a large foreign social media service is taken, for the purposes of this Act, to de‑platform a protected person, the provider of a large foreign social media service is taken to de‑platform a protected person if the provider engages in conduct for the purpose of permanently or temporarily:
(a) deleting the protected person’s account; or
(b) banning the protected person from:
(i) becoming an end‑user of the large foreign social media service; or
(ii) using the large foreign social media service; or
(iii) using the large foreign social media service in a particular way, such as posting to the large foreign social media service; or
(c) preventing other end‑users from viewing the protected person’s posts.
Censoring posts
(4) Without limiting the circumstances in which the provider of a large foreign social media service is taken, for the purposes of this Act, to censor a post, the provider of a large foreign social media service is taken to censor a post if the provider engages in conduct for the purpose of permanently or temporarily:
(a) removing the post; or
(b) de‑prioritising the post; or
(c) shadow‑banning the post; or
(d) restricting the reposting of the post; or
(e) editing the content of the post; or
(f) posting an addendum to the post; and
(5) De‑prioritising a post:
(a) subject to paragraph (b), is placing, featuring, or prioritising the post below, or in a less prominent position than, others in a newsfeed, a feed, a view or search results; and
(b) does not include doing so as a consequence of placing, featuring or prioritising another post above, or in a more prominent position than other posts on a general basis.
Other provisions
(6) To avoid doubt, for the purposes of this section, it does not matter whether or not the provider of a large social media service’s reasons for engaging in particular conduct relate to:
(a) the content of:
(i) any post of a protected person; or
(ii) any statement made by a protected person on the large foreign social media service or elsewhere; or
(b) a protected person’s status as a protected person.
(7) This section does not limit section 9.
9 Protecting philosophical discourse from censorship
(1) The provider of a large foreign social media service must not censor philosophical discourse on the social media service.
Civil penalty: 5,000 penalty units.
(2) Censor philosophical discourse includes:
(a) censor a post because of:
(i) an opinion about a philosophical matter included in the post; or
(ii) a statement of fact, or a purported statement of fact, relating to a philosophical matter included in the post; or
(b) engage in conduct specified in the legislative rules for the purposes of this paragraph.
(3) In this Act, philosophical includes political.
(4) This section does not limit section 8.
10 Exceptions
(1) This Part does not apply to conduct:
(a) engaged in for the purpose of censoring a post if the post is unlawful (including defamatory); or
(b) required by law, including:
(i) a court order; or
(ii) the Online Safety Act 2021; or
(c) engaged in in circumstances specified by the legislative rules for the purposes of this paragraph.
(2) For the purposes of paragraph (1)(a), a post is not unlawful merely because it is contrary to a large foreign social media service’s terms of use.
(3) For the purposes of paragraph (1)(b), conduct is not required by law merely because it is required or permitted by a large foreign social media service’s terms of use.
Part 3—Enforcement
Division 1—Complaints and investigations
11 Complaints
(1) If a protected person has reason to believe that the provider of a large foreign social media service has engaged or is engaging in conduct that contravenes section 8 in relation to the protected person, the protected person may make a complaint to the ACMA about the conduct.
(2) If:
(a) an end‑user of a large foreign social media service has reason to believe that the provider of the service has engaged or is engaging in conduct that contravenes section 9; and
(b) the end‑user is directly affected by that conduct; and
(c) the end‑user is an Australian;
the end‑user may make a complaint to the ACMA about the conduct.
12 Investigation of complaints
(1) The ACMA may investigate a complaint made under section 11.
(2) An investigation under this section is to be conducted as the ACMA thinks fit.
(3) The ACMA may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as the ACMA thinks fit.
(4) Subsections (1), (2) and (3) have effect subject to Division 5 (which confers certain investigative powers on the ACMA).
Termination of investigation
(5) The ACMA may terminate an investigation under this section.
13 ACMA’s response to complaints
If a complaint is made to the ACMA under section 11 in relation to conduct of the provider of a large foreign social media service, the ACMA may consider whether to give an anti‑censorship notice in relation to the conduct
Division 2—Anti‑censorship notices
14 Anti‑censorship notice given to provider of a large foreign social media service
(1) If:
(a) the provider of a large foreign social media service engages in conduct; and
(b) the conduct is the subject of a complaint made to the ACMA under section 11; and
(c) the ACMA is satisfied that it is reasonably likely that the conduct contravenes section 8 or 9;
the ACMA may give the provider of the service a written notice (an anti‑censorship notice) requiring the provider to do specified things in order to:
(d) end the contravention; or
(e) to prevent the contravention from recurring.
(2) So far as is reasonably practicable, the contravention must be identified in the anti‑censorship notice in a way that is sufficient to enable the provider to comply with the notice.
Notice of refusal to give an anti‑censorship notice
(3) If the ACMA decides to refuse to give an anti‑censorship notice under subsection (1), the ACMA must give written notice of the refusal to the person who made the section 11 complaint.
15 Compliance with anti‑censorship notices
A person must comply with a requirement under an anti‑censorship notice given under section 14 to the extent that the person is capable of doing so.
Civil penalty: 5,000 penalty units.
16 Formal warning
The ACMA may issue a formal warning if a person contravenes section 15.
Division 3—Regulatory powers
17 Civil penalty provisions
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the ACMA is an authorised applicant in relation to a civil penalty provisions of this Act.
(3) For the purposes of Part 4 of the Regulatory Powers Act, the Federal Court of Australia and the Federal Circuit and Family Court of Australia are relevant courts in relation to a civil penalty provision of this Act.
Extension to external Territories etc.
(4) Part 4 of the Regulatory Powers Act, as it applies in relation to a civil penalty provision in this Act, extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside Australia.
18 Infringement notices
Provisions subject to an infringement notice
(1) A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, a member of the staff of the ACMA authorised, in writing, by the ACMA for the purposes of this subsection is an infringement officer in relation to the provisions mentioned in subsection (1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers Act, the ACMA is the relevant chief executive in relation to the provisions mentioned in subsection (1).
(4) The relevant chief executive may, in writing, delegate any or all of the relevant chief executive’s powers and functions under Part 5 of the Regulatory Powers Act to a person who is:
(a) a member of the staff of the ACMA; and
(b) an SES employee or acting SES employee.
(5) A person exercising powers or performing functions under a delegation under subsection (4) must comply with any directions of the relevant chief executive.
Extension to external Territories etc.
(6) Part 5 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside Australia.
19 Enforceable undertakings
Enforceable provisions
(1) The civil penalty provisions of this Act are enforceable under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
(2) The ACMA is an authorised person in relation to the provisions mentioned in subsection (1) for the purposes of Part 6 of the Regulatory Powers Act.
Relevant court
(3) The Federal Court of Australian and the Federal Circuit and Family Court of Australia are relevant courts in relation to the provisions mentioned in subsection (1) for the purposes of Part 6 of the Regulatory Powers Act.
Extension to external Territories etc.
(4) Part 6 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside Australia.
20 Injunctions
Enforceable provisions
(1) A civil penalty provision of this Act is enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
(2) The ACMA is an authorised person in relation to the provisions mentioned in subsection (1) for the purposes of Part 7 of the Regulatory Powers Act.
Relevant court
(3) The Federal Court of Australia and the Federal Circuit and Family Court of Australia are relevant courts in relation to the provisions mentioned in subsection (1) for the purposes of Part 7 of the Regulatory Powers Act.
Extension to external Territories etc.
(4) Part 7 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside Australia.
Division 4—Information‑gathering powers
21 ACMA may obtain end‑user identity information or contact details
Scope
(1) This section applies to a person if:
(a) the person is the provider of a large foreign social media service; and
(b) the ACMA believes on reasonable grounds that the person has:
(i) information about the identity of an end‑user of the service; or
(ii) contact details of an end‑user of the service; and
(c) the ACMA believes on reasonable grounds that the information is, or the contact details are, relevant to the operation of this Act.
Requirement
(2) The ACMA may, by written notice given to the person, require the person:
(a) if subparagraph (1)(b)(i) applies—to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or
(b) if subparagraph (1)(b)(ii) applies—to give to the ACMA, within the period and in the manner and form specified in the notice, any such contact details.
22 Compliance with notice
A person must comply with a requirement under section 21 to the extent that the person is capable of doing so.
Civil penalty: 100 penalty units.
23 Self incrimination
(1) A person is not excused from giving information or contact details under section 21 on the ground that the information or contact details might tend to incriminate the person.
(2) However, in the case of an individual:
(a) the information or contact details given; or
(b) giving the information or contact details; or
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information or contact details;
is not admissible in evidence against the individual:
(d) in civil proceedings for the recovery of a penalty (other than proceedings for the recovery of a penalty under section 22); or
(e) in criminal proceedings (other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division).
(3) If, at general law, an individual would otherwise be able to claim the privilege against self exposure to a penalty (other than a penalty for an offence) in relation to giving information or contact details under section 21, the individual is not excused from giving information or contact details under that section on that ground.
Note: A body corporate is not entitled to claim the privilege against self exposure to a penalty.
Division 5—Investigative powers
24 Application of this Division
This Division applies to an investigation by the ACMA under section 12.
25 Notice requiring appearance for examination
For the purposes of an investigation by the ACMA, the ACMA may give a written notice to a person summoning the person:
(a) to attend before:
(i) the ACMA; or
(ii) a delegate of the ACMA named in the notice;
to produce documents or to answer questions; or
(b) to provide documents or other information to the ACMA;
relevant to the subject matter of the investigation.
26 Examination on oath or affirmation
(1) If a person is summoned to attend before the ACMA or a delegate of the ACMA, the ACMA or delegate may examine the person on oath or affirmation and, for that purpose:
(a) may require the person to take an oath or make an affirmation; and
(b) may administer an oath or affirmation to the person.
(2) The oath or affirmation is to be an oath or affirmation that the statements the person will make will be true to the best of the person’s knowledge or belief.
(3) The ACMA or delegate may require the person to answer a question that is put to the person at an examination and that is relevant to a matter that the ACMA is investigating or is to investigate.
27 Examination to take place in private
The examination of a person for the purposes of an investigation must be conducted in private, but the person is entitled to have an adviser present at the examination.
28 Record to be made of examination
(1) If a person is examined by the ACMA or a delegate of the ACMA, a record must be made of the examination and the person is entitled to be given a written copy of the record.
(2) If the record of the examination of a person is made in electronic form, the person is, if the person so requests, to be given a copy of the record in that form.
29 Production of documents for inspection
The ACMA may, by written notice given to a person, require the person:
(a) to make available for inspection by:
(i) the ACMA; or
(ii) a delegate of the ACMA;
any documents in the possession of the person that may contain information relevant to the subject matter of an investigation by the ACMA; and
(b) to permit the ACMA or the delegate, as the case may be, to make copies of any such documents.
30 Protection of persons giving evidence
A person who gives evidence or produces documents at an investigation by the ACMA has the same protection as a witness in a proceeding in the High Court.
31 Non‑compliance with requirement to give evidence
(1) A person required to answer a question, to give evidence or to produce documents under this Division must not:
(a) when required to take an oath or make an affirmation, refuse or fail to take the oath or make the affirmation; or
(b) refuse or fail to answer a question that the person is required to answer; or
(c) refuse or fail to produce a document that the person is required to produce.
Penalty: Imprisonment for 12 months.
(2) A person required to answer a question, to give evidence or to produce documents under this Division must not:
(a) when required to take an oath or make an affirmation, refuse or fail to take the oath or make the affirmation; or
(b) refuse or fail to answer a question that the person is required to answer; or
(c) refuse or fail to produce a document that the person is required to produce.
Civil penalty: 100 penalty units.
(3) Subsections (1) and (2) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters mentioned in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.
(4) Subsections (1) and (2) do not apply to a refusal to answer a question, or a refusal to produce a document, if the answer to the question or the production of the document would tend to incriminate the person.
Note: A defendant bears an evidential burden in relation to the matters mentioned in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.
(5) Subsections (1) and (2) do not apply if:
(a) the person is a journalist; and
(b) the answer to the question or the production of the document would tend to disclose the identity of a person who supplied information in confidence to the journalist.
Part 4—Miscellaneous
32 Review of decisions
(1) Applications may be made to the Administrative Appeals Tribunal for review of decisions of the ACMA under section 14 to give anti‑censorship notices.
(2) An application under subsection (1) of this section in relation to an anti‑censorship notice may only be made by the provider of the large foreign social media service to which the notice was given.
(3) Applications may be made to the Administrative Appeals Tribunal for a review of decisions of the ACMA to refuse to give providers of large foreign social media services anti‑censorship notices.
(4) An application under subsection (3) in relation to a provider of a large foreign social media service may only be made by a person who made a section 11 complaint about conduct of the provider.
33 Protection from civil proceedings
(1) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(c) the making of a complaint under section 11;
(d) the making of a statement to, or the giving of a document or information to, the ACMA in connection with an investigation under section 12.
(2) Civil proceedings do not lie against a person in respect of anything done by the person:
(b) in compliance with:
(i) an anti‑censorship notice; or
(ii) a notice under subsection 21(2).
34 Liability for damages
None of the following:
(a) the ACMA;
(b) a delegate of the ACMA;
is liable to an action or other proceeding for damages for, or in relation to, an act or matter in good faith done or omitted to be done:
(c) in the performance or purported performance of any function; or
(d) in the exercise or purported exercise of any power;
conferred on the ACMA by or under this Act.
35 Copies of material
(1) The ACMA may make one or more copies of material for the purposes of an investigation under section 12.
(2) The ACMA does not infringe copyright if the ACMA does anything authorised by subsection (1).
36 Implied freedom of political communication
(1) This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
(2) Subsection (1) does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act.
37 Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently with this Act.
38 This Act not to affect performance of State or Territory functions
A power conferred by this Act must not be exercised in such a way as to prevent the exercise of the powers, or the performance of the functions, of government of a State, the Northern Territory or the Australian Capital Territory.
39 Legislative instruments are subject to disallowance
Section 44 of the Legislation Act 2003 does not apply in relation to a legislative instrument, or a provision of a legislative instrument, made under this Act.
40 Legislative rules
(1) The Minister may, by legislative instrument (and subject to subsection (2)), make rules (legislative rules) prescribing matters:
(a) required or permitted by this Act to be prescribed by the legislative rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) To avoid doubt, the legislative rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) amend this Act.