A “duty of care” will not be imposed on big tech firms until at least after the next federal election, and the Labor government is yet to decide whether it will go ahead with plans to introduce major fines for any breaches of this new code.

The federal government late last year announced plans to legislate a duty of care for social media companies, placing the onus on them to proactively keep users safe.

It will require these companies to take “reasonable steps” to prevent foreseeable harm occurring on their platforms, such as by conducting risk assessments, risk mitigations and the implementation of safety-by-design principles.

The duty of care is a key recommendation from a review of the Online Safety Act conducted by senior public servant Delia Rickard, which was handed to the federal government in November last year.

This report has now been released publicly, but the government has not responded to a recommendation in the report that this duty of care be enforceable and backed by the threat of significant fines potentially worth billions of dollars.

The Labor government will now not make any moves to legislate the duty of care until after the federal election, and is yet to decide whether it will include the large fines in the new scheme, as ABC News reported.

The postponement comes amid efforts from the federal government to avoid the imposition of any tariffs on Australia by new US President Donald Trump.

There are fears that any efforts to crack down on social media firms will anger the new Trump administration, which now features many key big tech players as allies and advisers.

X CEO Elon Musk is now a close Trump ally and is leading the new Department of Government Efficiency, while Meta CEO Mark Zuckerberg recently backed Trump and announced a significant overhaul of the company’s moderation policies.

The Labor government has moved ahead with a number of major crackdowns on big tech firms, but there are now concerns that any moves to legislate against companies such as Meta or X will risk blowback from the new Trump administration.

Potentially giant fines

The Rickard review recommended the introduction of the enforceable duty of care on tech platforms ordering them to take steps to avoid the spread of harmful content on their platforms.

This would require them to take proactive action to prevent child exploitation, online hate and content promoting substance abuse or eating disorders.

It also recommended that significant fines be introduced for tech firms that breach this duty of care, to be enforced by the eSafety Commissioner.

The review recommended that these fines be five per cent of the social media platform’s global annual turnover or $50 million, whichever figure is higher.

For larger tech firms, this would be a major fine.

Facebook parent company Meta posted $264 billion ($US164.5 billion) revenue in 2024, meaning its five per cent fine would be $13.2 billion.

SnapChat posted revenue in 2023 of $7.4 billion ($US4.6 billion), so a fine for breaching the duty of care would be about $370 million.

The review outlined that these fines would only be imposed as a last resort and after court processes, while a $10 million civil penalty could be imposed for lesser breaches of the scheme.

The European Union and United Kingdom have similar duty of care schemes in place.

An expansion of eSafety’s remit

The review of the Online Safety Act also called for a significant expansion of the eSafety Commissioner’s powers.

The new code of conduct should be broadened to include the “dehumanisation” of groups targeting “protected characteristics” such as sexual orientation, age or religion, child exploitation and grooming, threats to “national security and social cohesion” and the promotion of “harmful practices”.

There should be exemptions for “ideas, concepts or institutions”, art, science, journalism and reasonable political communications, the report recommended.

The eSafety Commissioner should also be able to issue takedown notices for adult cyber abuse and child cyber bullying after just one day, rather than the current two-day limit.