5. Legal concerns
to society at large, regulation would benefit from a
tailored approach.
The ACL also contains liability provisions that apply
to a manufacturer that supplies consumer goods in
trade or commerce with a safety defect. A product
has a safety defect if it does not meet the level of
safety the public is generally entitled to expect.
While the expected level of safety will vary from
case to case, it is ultimately for a court to determine
whether a product has a safety defect. The court will
take various factors into account when determining
whether a product has a safety defect, including:
how and for what purposes the product has
been marketed
product packaging
the use of any mark in relation to the product
instructions and warnings for assembly and use
what might reasonably be expected to be done
with the product
the time when the product was supplied.
There are however a number of statutory defences
that are available to a manufacturer against a product
liability action.247 These defences make the safety
defect provisions in the ACL unsuitable to protect
consumers given the evolving nature of scientific or
technical knowledge about neurotechnology.
5.3 Online safety
As neurotechnologies continue to develop, it is
important to consider how these technologies (by
themselves or in combination with other emerging
technologies such as augmented, virtual, or mixed
reality platforms and devices248) may be used as
a vector for various types of online harm. For
example, if bad actors were able to assume control
of such technologies, they could be weaponised for
child sexual exploitation, sexual assault, coercive
control, or other forms of abuse.
Accordingly, companies developing
neurotechnologies should take a Safety by Design
approach to help identify and mitigate potential
online safety risks early on.249 Voluntary safety
measures should be backed up by legislative
requirements and regulatory oversight – in addition
to being supported by education and awareness
raising for the public.
The eSafety Commissioner
The eSafety Commissioner (eSafety) is Australia’s
independent regulator, coordinator and educator
for online safety. eSafety’s purpose is to help
safeguard all Australians from online harms and to
promote safer, more positive experiences online.
The Office of the eSafety Commissioner began
operation in 2015, with the current iteration of
its enabling legislation being the Online Safety
Act 2021 (Cth) (Online Safety Act) taking effect in
January 2022. The Online Safety Act applies to
a range of online service providers, including to
metaverse platforms and the equipment used to
connect to them (such as neurotechnologies).
eSafety approaches its work under the Online
Safety Act through the three lenses of prevention,
protection, and proactive and systemic change:
Prevention – through education, awareness
raising, and programs based on research,
evidence, and consultation.
Australian Human Rights Commission
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