Digital duty of care

By Michael Henry Yusingco, LL.M

Australia is developing the digital duty of care principle to keep cyberspace safe and secure for all users. Rather than regulating speech directly, which many of our lawmakers are eager to do, the approach seeks to impose statutory obligations on digital platforms to identify, mitigate, and manage reasonably foreseeable online harms. This represents a significant shift from content-based regulation to systems-based regulation.

Traditional attempts to address online harms have focused primarily on the content itself. Governments criminalize disinformation, prohibit harmful speech, or require the removal of objectionable material. Such approaches frequently encounter constitutional difficulties because they require the state to determine the truth or falsity of speech, raising concerns about censorship and political abuse.

Australia’s emerging duty of care model takes a different path. Instead of asking whether a particular post should be prohibited, it asks whether digital platforms have taken reasonable steps to reduce foreseeable risks created by the design and operation of their services. Responsibility shifts from individual speakers to platform governance.

This distinction is crucial. The objective is not to expand limitations on speech but to encourage platforms to design safer digital environments. A duty of care therefore emphasizes risk management, transparency, accountability, and institutional responsibility rather than government control over public discourse.

The establishment of a digital duty of care is particularly relevant to the Philippines, being both the social media capital of world and “patient zero” of networked disinformation.  Our current legal framework primarily regulates users rather than platforms. They impose penalties after harm has occurred instead of incentivizing preventive measures by platform operators.

A properly designed duty of care framework can be a boon for netizens. Rather than authorizing government officials to decide which opinions may be expressed, the law would focus on whether platforms have established reasonable systems for managing foreseeable risks. Courts would continue to protect constitutional freedoms while regulators evaluate institutional compliance with procedural standards.

Ultimately, the purpose of a digital duty of care is to strengthen the information environment upon which constitutional democracy depends. Keep in mind that democracy requires more than the absence of censorship. It also requires an information ecosystem where citizens can make informed political choices, journalists can perform their watchdog functions, and public debate remains grounded in trustworthy information.

Platforms increasingly shape the information ecosystem through algorithmic design choices that determine what information citizens encounter. Those choices are currently driven by the desire to generate revenue. It is the “attention economy” and platforms are merely capitalizing on market needs. This kind of thinking is no longer tenable. The “platformization” of daily life demands the institutionalization of digital duty of care.

Importantly, however, a duty of care should not be viewed as a substitute for broader democratic reforms. Media and information literacy, civic education, support for independent journalism, stronger data protection, effective competition policy, and transparent electoral regulation all remain essential components of a healthy digital democracy.

Australia’s move toward legislating a digital duty of care reflects an important evolution in internet governance. Instead of regulating speech itself, it regulates the systems that shape online communication. This approach offers a promising middle path between unrestricted platform autonomy and intrusive government censorship.

For the Philippines, the lesson is not to copy Australia’s legislation wholesale but to adapt its underlying principles to local constitutional, social, and technological realities. Our digital duty of care should recognize the country’s unique dependence on social media while addressing the systemic risks posed by algorithmic amplification, coordinated disinformation, and online villains.

Properly designed, such a framework would preserve the constitutional commitment to freedom of expression while recognizing that digital platforms are no longer passive intermediaries. They are architects of the modern information ecosystem. With that influence comes a corresponding responsibility to exercise reasonable care in designing and governing the digital spaces where democratic life increasingly unfolds.