Digital Duty of Care Must Hold Tech Giants Accountable for Systemic Harms

A digital duty of care is about a lot more than opting out of “the algorithm”. And after the simplistic and at best patchy exercise of the under-16s social media ban, we shouldn’t let the government get away with another populist policy that looks good on the surface but doesn’t get to the core of the problem.

A digital duty of care must hold the tech bros accountable for the safety of the spaces that they have created.

Like the social media age ban – and indeed the government’s paltry efforts on gambling advertising – an algorithm opt-out maintains the onus on the consumer and is only one piece of the framework needed to manage the fact “the algorithm” is currently controlling the world.

There’s a lot to be said for the Chanel Contos-driven “Fix our feeds” campaign, which has drawn much-needed attention to the effect of “the algorithm” – particularly when it comes to online misogyny and sexual violence, normalisation of pornography and strangulation during sex.

“It is too easy for big tech to design schemes that appear as structural reform but actually suit them just fine,” the sexual consent advocate said in a speech to the National Press Club in Canberra on Thursday.

She’s right. The issue is that giving users control over their exposure to “the algorithm” alone won’t be enough to create real accountability – particularly if the user has to opt out.

“The algorithm” is a suite of systems which, in part, profile users and then leverage our personal habits to keep us scrolling. This embeds the potential for considerable societal harm, which we are now seeing unfold in real time.

Addictive design features are eroding attention spans and productivity; mental health issues are increasing; divisive and outrageous content is amplified over consensus; and social isolation is increasing statistically across all age groups.

The key to beginning to retake our “information sovereignty” – to keeping some level of say in what’s happening in the digital realm – is applying a mandatory and enforceable duty of care on big tech.

This is becoming ever more urgent as AI advances minute by minute and governments grapple with new developments that they don’t know how to manage. It’s big tech v community – and we know who wins there, with smart glasses the latest iteration of a complex debate that is also an opportunity.

An effective update of our woefully out-of-date privacy laws, together with the implementation of a legislated and enforceable digital duty of care, would be a powerful step forward.

In 2024 I tabled a private members’ digital duty of care bill in federal parliament, modelled on the best of UK and EU legislation. As I said in my introductory speech for the bill, the core aim has to be to make the platforms make their spaces safe for us, for our kids and for our communities.

A duty of care is not only just, but essential. It is appropriately broad in scope to ensure that all of the systems, processes and elements of a digital service are captured, including “dark patterns” and addictive design features.

The bill included the strongest-possible default privacy settings and the ability for users to both reset and “switch off” the algorithm.

Enabling this was targeted particularly at young people with eating disorders and mental health issues, problem gamblers and others.

But the bill went much further than that. It required detailed evidence of risk assessment and mitigation by the platforms; transparency and access for independent researchers to get “under the hood” and understand the algorithm; and penalties of up to 10% of global turnover for non-compliance.

In other words, it had teeth for enforcement.

And this is far less about the content itself than it is about the systems that drive it. The old game of removing content via whack-a-mole is pointless.

A well-executed duty of care would protect everyone, whether they opt out or not, by holding the platforms to account for the design of their systems and the resultant risk to emotional wellbeing, political and social cohesion and addictive design features.

It could also include misinformation and disinformation. This would risk the usual culture war debate about free speech, while we blithely accept the changes to our culture and society that are being freely imposed by Mark Zuckerberg, Elon Musk and others.

What we should be worried about is the sovereignty of the information landscape and the fact that we’re being controlled by the systems - not the other way around.