New criminal offences were introduced by Federal Parliament today via the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019.
The stated objective of the new laws is “to address significant gaps in Australia’s criminal laws by ensuring persons who are internet service providers, or who provide internet content or hosting services, take timely action to remove or cease hosting abhorrent violent material when it can be accessed using their services”. The new laws have been presented as a crackdown on social media companies to prevent a recurrence of what transpired during the Christchurch massacre where the attack was live-streamed online by its perpetrator. The speedy passage of the laws, within weeks of this atrocity, has been the subject of criticism and appears to be reflected in some flawed drafting.
What is the effect?
The new laws provide that a company may be fined 10% of its turnover if there is a failure to remove abhorrent violent material expeditiously. Abhorrent violent material is audio / video produced by a perpetrator(s) or their associates depicting terrorism, murder, attempted murder, torture, rape or kidnapping, within or outside of Australia.
The eSafety Commissioner may give written notice to a service provider that it is being used to access abhorrent violent material. Once on notice the provider must ensure the expeditious removal of the material from its content service, to avoid committing an offence.
A platform is required to notify the AFP if it is aware that their service streamed abhorrent violent conduct occurring in Australia. The purpose of this provision is to ensure the provider notifies law enforcement of both the underlying abhorrent violent conduct as well as the existence of the content online.
Challenges and criticisms
The new laws give rise to numerous challenges and criticisms:
- The complex definition of abhorrent violent material does not lend itself to the speedy analysis required for an “expeditious” consideration and response, including:
- detailed and technical definitions for rape, torture, kidnapping and a terrorist act.
- the need for an assessment of what a “reasonable person” would regard as offensive.
- forming a view as to whether content has been created by a perpetrator or an accomplice.
- “Expeditious” is undefined and the factors a Court might take into consideration in assessing this time frame are not specified.
- Jurisdictional challenges arise as to both the practical administration of the law. There are likely to be conflicts issues, including where foreign corporations are operating in Australia. For example, where a US corporation is required to take steps which may breach US law.
- The potential corporate penalty of 10% of annual turnover links the sanction to the size of the offender rather than the seriousness of the breach.