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.
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.
The new laws give rise to numerous challenges and criticisms:
JWS Dispute Resolution lawyers (Ranked Band 1 in Asia Pacific Legal 500) have leading expertise in acting for senior executives and boards in a range of regulatory investigations and prosecutions including under Corporations Law and Federal criminal prosecutions. The JWS media team provides fast, around the clock advice to online content producers in relation to statutory restrictions which apply to their operations. Please contact us if you wish to discuss any aspect of the new laws.
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