Senate Environment and Communications Legislation Committee, , 9:29:17 to 9:39:41
Senator Payman queries the enforceability of takedown requests for illegal content hosted offshore, focusing on jurisdictional limitations and the effectiveness of geoblocking and ISP-level blocking.
Topics: Online safety, International law
Speakers: Senator Fatima Payman, Speaker 41, Ms Heidi Snell, Ms Julie Inman Grant, Unknown Speaker, Senator Varun Ghosh
Thank you, Chair. Um I'd also like to thank you, Commissioner, and your team for all your work you've done, um, especially around the um e-safety versus rotondo case. Um really appreciate all your work on that. Um my line of questioning, and if I don't get to it, um I'll come back after the lunch uh dinner break. Um so last estimates, I asked a question on notice which related to the US government's plan freedom.gov website. Um as you'd be aware, the Senate resolved to uh reject e safety's refusal to answer this question and Ordered the production of a new answer. I'm just curious to understand why eSafety refused to answer the question by standing by citing a standing order that does not apply to questions asked during estimates. I can give you the um the question on notice number SQ260696. And this was the budget estimates from this year.
Yes, so Senator Richard Fleming, General Council E-Safety. Um as you've foreshadowed that OPD's come back to us and we've responded again. I'm not sure what that's still in the system, but there is a response on its way to you.
Oh, yeah, we've received that yet. Um, but I'll check with my team.
Um I think in that in that question you are sorry, in that OPD you asked for um drafts of our Senate quant response. Yes and so they're on their way to you. That's on their way to you.
Okay. Um are you able to share when eSafety released a draft of the answer um in response to an internal review of an FOI request 26120? Um this draft obviously like offered far more practical um like details on the practicalities of the entire issue. Um I'm curious to know whether that draft was presented to the minister's office.
I'd have to check because of the interaction between the FOI request and their OPD.
It can you also then find out whether the draft was presented to the minister and what the minister's response was?
So my understanding is that uh yes, we will do that. Um it might be helpful. I think my my recollection is that that went to the minister's office last week or the week before. So uh, as I say, it's in it's in train. So you'll be getting a copy of the draft on.
And and just a clarification on that first question. Um just want to know why that incorrect standing order was cited to avoid answering that question in the first place. I understand that it's on its way to us.
I I think it was more an interpretation and understanding question rather than anything more than that. So um, but as I as you can't you've come back to us, we now provide that.
Okay, thank you. Um whether the minister directed e-safety to provide any particular answers or non-answers to um to the question that we put on notice, especially around obviously, you know, a flawed understanding of the Senate procedures, and I understand that people in the House of Reps don't always understand how the Senate operates.
I I don't have that detail, Senator, unfortunately.
Can you find out?
We'll take on that, Senator.
Um the question itself, uh, in response to another question, SQ260694. Um e-Safety noted that no action had been taken against illegal content hosted offshore between a takedown request in March and the question being answered in September. Um isn't it the case that e-Safety has no ability to enforce takedown requests directed towards entities outside of Australia due to jurisdictional limitation
So Senator, you do you have the response to 694 uh yeah,
so that that's the response that um e-Safety provided saying that you don't have um you're not able to take action on illegal content that's hosted offshore. Um and I guess my question is is that does e-Safety have any ability to enforce that take down, or we don't?
So generally what we do uh, and this is what happened with some of the more recent footage, so the Charlie Kirk shooting, for example, um we we issue removal notices and we accept geoblocking as substantive compliance with those notices. That's our general position for illegal and restricted content. Um it's a different position. We we might issue removal notices for child sexual sexual abuse material, for example, so it just does depend on the material, but generally for um illegal and restricted content, it is um we do accept geoblocking.
Okay, um because it's just that that sort of illegal content can still be accessed here in Australia. So is that uh an enforceability power that you would need, or you know, where's the gap there? Because obviously you said that no further action was taken after that take down request, nothing's happened. We can still see that the content's up. Um people in Australia can view it. So how do we ensure their safety here?
There are there are challenges with overseas offshore entities that do not have any presence here in Australia and choose not to um submit to the jurisdiction here in Australia. I'm not sure that there's a even an easy legislative fix for that. If a recalcitrant um third party offshore does not want to comply, um then there are limitations on what further action we can take in those circumstances. Um we issue removal notices, um, a lot of services actually respond to those, um, but as in this case, sometimes the service chooses not to do that. In some instances um we can engage um with the AFP to exercise um blocking at an ISP level. Uh the challenge we see with that is often that URLs are simply changed and the information the material is made available again. So it is a challenge.
It's also possible to go upstream to the hosting providers, but if it's it's a really bad site, they generally choose hosting providers that are also in permissive hosting environments and are non-responsive.
Because yeah, I just see it like you know impossibility stacked on top of impossibility when you know uh uh contemplate which I think we discussed in um the draft answer to SQ2600696, you know, fines or core action against the US government is all but prohibited by the foreign uh states immunity act. Um is is that the case here? Is that what we're up against?
I mean, we're up against a broad range of um permissive hosting in environments. It's not any any one um geography or government and a lot of you know a lot of bad actors, unfortunately. Again, we use the tools that we can um to try and go upstream, but we also have other tools where we can try and disrupt or um minimise the accessibility, and that's through the um the search engine de-indexing powers. So we we do use the tools that we have, but we are working in the global environment. I mean, it's worth noting that I think in the 10 years I've been in this role, we've only had one instance where child sexual abuse has been hosted in Australia because we've had such strong laws on the books for almost a quarter of a century. Um there are still so many uh developed and advanced countries around the globe and and those in in the uh global south that do not have similar laws, so anything goes. That's what we're up against.
Because given that the Freedom.gov website is planned to get around European and potentially even you know Australian online safety laws. Would eSafety expect, as it's suggested in the draft answer, that it may not be feasible to enforce takedown requests for material hosted on freedom.gov
I don't know that we've had any specific requests about freedom.
And assess that generally um more generally in exercising our powers, we focus um, we prioritise based on um harm and um availability in terms of likely visits. So often we um we will assess how um how searchable um particular content is the number of visits a particular site might have because obviously we've got finite resources and there's a lot of um illegal content on the internet and so we need to focus where it's most likely that Australians are going to interact with that content.
Um I appreciate it.
We'll have to come back uh after the break. So Senator Whitten.