Sat, 19th Sept, 2026; Felix Ralph, Criminal Defence, Technology & Media Lawyer; Digital Duty of Care.

 

Joining us live in the studio this morning is Felix Ralph, a leading criminal defence lawyer from law firm Marshall Jovanovska Ralph. As the federal parliament pushes forward with major reforms to the Online Safety Act—including the introduction of a statutory ‘Digital Duty of Care’ for social media platforms—Felix is here to unpack what these legislative shifts mean for corporate liability, digital free expression, and individual rights online. Welcome to JOY, Felix.

The proposal for a “Digital Duty of Care” amends the framework under the Online Safety Act 2021. Rather than relying solely on reactive takedown notices administered by the eSafety Commissioner, it imposes an affirmative legal duty on platforms to design safer digital environments and mitigate systemic risks (e.g., algorithmic amplification of self-harm, cyberbullying, hate speech, and deepfakes).

Legal Duty vs. Free Speech Concerns: Legal scholars and civil liberties advocates raise concerns over “chilling effects.” If platforms face heavy civil penalties or corporate liability for failing their duty of care, their automated moderation tools may over-regulate, censoring legitimate speech, political commentary, or LGBTQIA+ community discussions.

Algorithmic Accountability & Opt-Outs: A central debate surrounds recommendation algorithms. Implementing a duty of care could force platforms to give users direct controls—such as chronological feed opt-outs—and demand transparent risk assessments before launching new platform features or AI models.

Enforcement & Constitutional Boundaries: Key legal questions remain regarding the eSafety Commissioner’s enforcement powers, standard-of-proof thresholds, potential class action liabilities, and whether these state-level/federal restrictions withstand implied constitutional protections for freedom of political communication.

Section 25C(2) & Ministerial Discretion: The exposure draft of the Online Safety Amendment (Digital Duty of Care) Bill 2026 sets out 13 explicit categories of “seriously harmful material and conduct” under Section 25C(1). However, Section 25C(2) creates a broad catch-all power allowing the Communications Minister to declare any additional material or conduct as “seriously harmful” via subordinate legislative instruments if they are satisfied it “may cause serious harm”. Critics argue this creates an expandable regulatory ratchet where executive power can bypass primary parliamentary debate to reclassify controversial speech, political advocacy, or social commentary as legally harmful.

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