The Albanese Labor government has announced that a digital duty of care will be imposed on social media companies to reduce online harm. The then Communications Minister, Michelle Rowland, in an address to the Sydney Institute in late 2024, foreshadowed the imposition of this duty:
What’s required is a shift away from reacting to harms by relying on content regulation alone, and moving towards systems-based prevention, accompanied by a broadening of our perspective of what online harms are.
The use of the possessive pronoun our is particularly revealing, for it inadvertently exposes the true intention behind defining as ‘harm’ whatever might displease the authoritarian political class in power. The government’s proposed digital duty of care, likely to be adopted later in 2026, is a legal obligation, not just to avoid harm, but a direction to social media to proactively institute systems that prevent ‘harm’ from occurring.
As might be expected, the government’s announcement has been warmly received by commentators aligned with the prevailing political establishment. The Human Rights Law Centre, for example, has voiced its strong support for the initiative. In its submission to the Statutory Review of the Online Safety Act 2021, it states:
A duty of care would require digital platforms to thoroughly scrutinise their systems and think critically about how these systems may be contributing to harm while incentivising them to take proactive risk mitigation strategies […] the imposition of a duty of care would also remove any defence of platform ignorance or non-involvement in the dissemination of harmful content. Accordingly, platforms would need to invest in preventative measures that, as far as foreseeable, minimise the platform’s liability for any harm their products cause.
It is easy, and indeed convenient, for those who regard government as the solution for all societal problems to applaud its increasing control over information and the outcomes that are anticipated to follow from imposing such a duty. The proposal is unlikely to appear controversial to those who continue to place their unshakable faith in the intentions of a ‘benevolent’ government, particularly when producers and manufacturers of goods are already subject to comparable obligations. Why, then, one might ask, should the same duty not be imposed on social media companies?
The proposed imposition of a digital duty of care would follow the social media ban for teenagers under 16 and is based on a desire to address what is known as ‘misinformation’ and ‘disinformation’. Of course, under a system in which government authorities exercise greater control over information, ‘misinformation’ and ‘disinformation’ may come to mean little more than information that challenges the prevailing narrative of those in power.
The Covid era offered a striking example not only of authoritarian censorship directed at those who dared to question policies that violated fundamental human rights, but also of misleading claims and narratives advanced or endorsed by governments themselves. From the perspective of the political and cultural establishment, information that obstructs their anointed political agenda, or simply departs from prevailing orthodoxies, can all too easily be conveniently characterised as ‘misinformation’ or ‘disinformation’.
In her announcement, Rowland refers to ‘enduring categories of harms’, including harms to young people, and harms to mental wellbeing, among others. The proposal also weaponises consumers who, under the proposed legislation, would have the right to complain to the social media provider, and if no satisfactory outcome is achieved, take it to higher authorities under the Online Safety Act 2021. It is expected that the proposed legislation, which has not yet been released, will allow people to free themselves of the use of algorithms that guide people to questionable content on social media.
Nevertheless, on closer analysis, such enthusiastic and unqualified support for the imposition of a digital duty of care may obfuscate the need to consider, however briefly, the disadvantages of the government’s proposal. There are several reasons that support this view.
First, ‘harm’ is a concept that cannot easily be defined because it depends on the subjective feelings of the recipient or person exposed to it on the social media platform. Inevitably, the images and materials one encounters on social media will affect people in different ways: some mature teenagers might recognise challenging materials as problematic, whereas others, being impressionable, would be potentially harmed and influenced by the content. To assume that the ban, and the digital duty, will affect all teenagers in the same way is to stereotype the consumers of the social platforms. The stereotyping involved in the under 16 ban is a real issue that the legislation is not likely to address in a meaningful way.
Those who want to impose such a digital duty of care often rely on utilitarian arguments, namely that the benefits derived from such imposition outweigh its disadvantages. However, whilst those who worry about the effects of images and other material on young impressionable minds will not likely disagree with the utilitarian argument that the benefits of the duty outweigh its disadvantages, it is not possible to avoid the conclusion that the argument also contains the seeds destructive of the proposed imposition. Indeed, if a cost-benefit assessment reveals that the disadvantages of the imposition of this duty outweigh its benefits, then utilitarian considerations would justify scrapping the government’s proposal.
The utilitarian cost-benefit analysis draws its inspiration from John Stuart Mill’s well-known ‘harm principle’ found in his essay On Liberty: ‘The only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others.’ The problem with Mill’s argument is that ‘harm’ is an illusory concept, the meaning of which depends on people’s subjective perception of what constitutes ‘harm’. The irony is difficult to overlook. Governments animated by a more authoritarian mindset may interpret as ‘harm’ any effective message that directly challenges their preferred narratives, while arrogating to themselves the undemocratic power to decide what people should think, what they should watch, and even what they may post on their own private social media accounts.
Second, assume that the social media ban for teenagers under 16, introduced in December 2025, which served as a template for the introduction of similar legislation by other countries, involves stereotyping. Such assumption would be an admission that ‘harm’ cannot be satisfactorily defined. More importantly, it would also be an admission that the imposition of a duty of care is an unrealistic approach to a problem based on shaky theoretical foundations.
Third, the digital duty of care involves the introduction of a new legislatively determined tort. The development of torts, throughout the decades, has been a story of attributing blame to those who are deemed to have contributed to a person’s unfortunate adventures and problems. It is a firmly entrenched (and often valuable) common law development which, however, has spawned a culture that always blames others for a person’s alleged misadventures. This proposal is thus the latest chapter in dramatically expanding the scope of this blame game which diminishes the importance of personal responsibility.
Fourth, what about free speech? During the last few decades, there has not been a single legislative proposal that aimed at extending or expanding free speech. Whilst each restriction of free speech enjoyed by people seems a good decision at the time of its adoption, the aggregation of all speech-restricting laws means that our society is no longer the beneficiary of a free-speech culture.
However, on this occasion, the Coalition and One Nation are expected to oppose the proposed legislation. Opposition Leader, Angus Taylor, reportedly indicated that he is ‘deeply sceptical’ because the legislation could potentially threaten free speech and personal freedoms on the internet. Similar to One Nation’s position on this matter, for the Coalition the proposed digital duty of care might well amount to censorship of the internet, a goal the government has long pursued, as exemplified by its unsuccessful disinformation bill of 2024.
It is obvious that free speech is a cardinal principle of any genuinely functioning democracy. Without the freedom to speak, express, contest, and debate potentially controversial ideas openly, ‘democracy’ is reduced to little more than a less overt or more disguised form of elective dictatorship. Indeed, the suppression of free speech is a defining characteristic of every authoritarian regime.
Our politicians would therefore do well to reverse the steady encroachment upon freedom of speech by enacting a Restoration of Freedoms Act – legislation that would repeal numerous anti-free-speech laws that unduly restrict political and public expression of political opinions, and restore the fundamental right of citizens in a democratic society to express such opinions freely and robustly, including opinions that directly challenge the current status quo or contradict the prevailing orthodoxies of our ‘progressive’ political and cultural elites.
The proposal, currently before Parliament, is therefore just another example of how not to respond to the failure of the under 16 social media ban. Accordingly, the proposed duty of care represents nothing less than taking such a failure to its illogical conclusion: rather than reconsidering a flawed authoritarian approach, the government proposes to compound it with yet another layer of undemocratic overregulation.
Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. He also served as the Garrick Professor of Law at the University of Queensland.
Augusto Zimmermann is foundation dean and professor of law at Alphacrucis University College. He also serves as Distinguished Scholar at The Wagner Center for Faith and Freedom at Spring Arbor University (U.S.A.). Professor Zimmermann is also a former commissioner with the Law Reform Commission of Western Australia.
Zimmermann & Moens are the authors of ‘The Legal Right to Disobey Law: A Natural Law Approach to Free Speech and Civil Disobedience’ (Sidestream Press, 2026), which is available for purchase at x
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