14 November 2024
Kristin Dietrich eSafety ref: FOI 24259
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Applicant
Your freedom of information request
I refer to your request to the eSafety Commissioner (eSafety) on 22 October 2024 under the
Freedom of Information Act 1982 (Cth) (FOI Act). Specifically:
How will the proposed age verification process function in practice for all proposed methods from
a technical perspective? Is ESafety able to provide diagrams, technical design documentation etc
Could you please provide detailed information on the specific uses of age verification data? For
instance, will the eSafety Commissioner or private companies have access to age verification data,
such as facial recognition data or provided ID information? Additionally, will the eSafety
Commissioner have the capability to associate potentially collected identifiable data with actual
internet usage, such as visits to pornographic sites for example URLs, searches conducted on sites
or content viewed? Or will esafety have the ability to compel private companies to provide this
information.
If private companies are responsible for implementing age verification, has there been any research
or measures taken to ensure that the data captured will be protected from data collection
practices governed by legislation in the private companies’ respective countries?
(request).
Request is not valid
The FOI Act provides a legally enforceable right to obtain access to documents held by
Australian Government ministers and agencies.
Section 15 of the FOI Act therefore requires a freedom of information request to provide such
information concerning the documents sought as is reasonably necessary to enable an agency
to identify the documents. In our view, your request does not provide such information. Your
request is not a request for documents containing information about age verification; it is a
request for answers to questions about age verification.
Until your request is made in a manner required by section 15 of the FOI Act, it is not a valid
request and cannot be processed.
Accordingly, we invite you to consult with eSafety with a view to amending or clarifying your
request so that it complies with section 15 of the FOI Act and provides the information
necessary to enable eSafety to identify the documents sought by you.
Email: xxx@xxxxxxx.xxx.xx
eSafety.gov.au
Suggestions for validity
In order to make your request a valid request, you may wish to consider seeking access to
specific documents or categories of documents rather than seeking information or answers to
questions1.
For example, you may wish to revise your request to the following:
Documents containing details of the proposed age verification process, proposed uses of
age verification data, and research on data protection of any age verification data
collected by private companies.
You may also wish to consider whether eSafety is the appropriate agency for any revised
request, noting that the age assurance trial is being undertaken by the Department of
Infrastructure, Transport, Regional Development, Communications and the Arts (the
Department), rather than by eSafety. We have provided further information about the age
assurance trial, and eSafety’s role, at Attachment A.
We note the following to further assist you to revise your request:
1. We can only give you access to documents we hold. Therefore as mentioned above, you
may wish to consider whether the Department is more likely to hold the documents you
seek than eSafety.
2. We are required to take ‘reasonable steps’ to identify documents. We can refuse a request
if, after taking reasonable steps, a requested document cannot be found (section 24A of
the FOI Act). This does not mean the document does not exist, although we can also refuse
under section 24A when a document does not exist.
Next steps
We look forward to hearing from you by
close of business on
Thursday,
28 November 2024. If
we do not hear from you by this date, we may treat your request as having been withdrawn
and close your request. If we close your request, you will need to make a new FOI request if
you wish to access documents.
If you have any questions about the matters discussed in this letter, please contact me at
xxx@xxxxxxx.xxx.xx.
Yours faithfully
Manager, Legal - Business Services
1 Noting that an agency is not required to create documents to respond to an FOI request unless section 17 of the
FOI Act applies.
Email: xxx@xxxxxxx.xxx.xx
Attachment A – Further information about age assurance
Age Assurance Trial
The Age Assurance trial is being undertaken by the Department of Infrastructure, Transport,
Regional Development, Communications and the Arts (the Department), rather than the eSafety
Commissioner.
In May 2024, the Australian Government announced funding for an age assurance technology
trial to protect children from harmful content, like pornography and other age-restricted online
content.
The trial will evaluate the maturity, effectiveness, and readiness for use of age assurance
technologies, and consider issues of privacy, security and accessibility. The trial outcomes will
help inform future decisions of Government on implementing age assurance technologies.
On 10 September 2024, the Government announced its intention to introduce legislation this
year to enforce a minimum age of access to social media and other relevant digital
platforms. The legislation is still in development and details about how a minimum age could
be verified and enforced are not yet available, but further information is available at the below
links:
•
Social Media Summit address | Ministers for the Department of Infrastructure
•
Albanese Government set to introduce minimum age for social media access | Ministers
for the Department of Infrastructure
The team managing the trial can be contacted via
xxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx.xx.
FOI requests can be directed t
o xxx@xxxxxxxxxxxxxx.xxx.xx.
You can also find more information about the trial here:
Tackling online harms | Ministers for
the Department of Infrastructure
eSafety's work on age assurance
eSafety is not managing or proposing the implementation and use of specific age verification
technologies. However, for context, we provide background information relating to our work on
age assurance below.
In March 2023, eSafety submitted a roadmap on age verification to the Australian Government
for consideration. It included complementary measures to prevent and mitigate harm to
children from online pornography. The roadmap, and an accompanying background report,
provided an assessment of age assurance and online safety technologies and international
successes and challenges in regulating online pornography.
The Australian Government published its response to the roadmap and the recommendations
on 31 August 2023.
Email: xxx@xxxxxxx.xxx.xx
In July 2024, we published an issues paper on age assurance and its role in online safety. This
paper captures developments since we published the roadmap and considers age assurance
for a range of uses.
You can read the roadmap, background report and issues paper on our website. Both papers
consider the privacy implications of age assurance technology:
•
Age verification | eSafety Commissioner
•
Tech trends and challenges | eSafety Commissioner
Phase 2 Codes
The Online Safety Act 2021 provides for industry bodies or associations to develop codes to
regulate certain types of harmful online material, and for eSafety to register and enforce the
codes. There are currently six industry codes in operation and two industry standards for
sections of the online industry. This first phase of codes and standards contains measures to
address ‘class 1A’ and ‘class 1B’ online material.
The second phase of industry codes development, focusing on class 1C and class 2 material
that is inappropriate for children, such as online pornography, formally commenced on 1 July
2024.
eSafety issued notices requesting the development of Phase 2 codes to five industry bodies
and associations who represent the sections of the online industry to which the codes will
apply.
The aims of the Phase 2 industry codes are to prevent children from accessing or being exposed
to age-inappropriate material online (including material like online pornography) and to provide
all end-users with effective information, tools and options to limit access and exposure to this
material.
eSafety’s position on these matters is technology agnostic, but suggests that industry adopt
measures mandating certain protections which are proportionate to the risk profile of a service,
and the likelihood that an end-user might access or be exposed to age-inappropriate or
harmful material on a service.
Draft codes as prepared by industry are currently open for public consultation until 22
November. You can also find more information about the codes process at the below links:
•
Industry codes | eSafety Commissioner
•
Phase Two Codes | Online Safety
Email: xxx@xxxxxxx.xxx.xx
