The Australian Parliament has promptly passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) (Act) according to the Explanatory Memorandum in response to the events of the March 2019 mass shooting in Christchurch, New Zealand. The Act creates various new sections of the Criminal Code Act 1995 (Cth) (Criminal Code) and in particular section 474.33 and 474.34 creates (2) new offences in relation to “internet service providers, content service providers and hosting service providers” (Service Providers) as follows:
- a person commits an offence if they are aware that the Service Provider is able to be used to access particular material which they have reasonable grounds to believe is abhorrent violent material (AVM) that records or streams abhorrent violent conduct (AVC) they don’t notify the Australian Federal Police within a reasonable time after becoming aware of the existence of the AVM; and
- a person does not ensure the expeditious removal of the AVM.
For the purpose of these offenses ‘abhorrent violent material’ is defined as audio, visual or audio-visual material which records or streams abhorrent violent conduct, which a reasonable person would regard as being offensive.
The abhorrent violent conduct (AVC) is defined as a person:
- engaging in a terrorist act;
- murders another person;
- attempts to murder another person;
- tortures another person;
- rapes another person; or
- kidnaps another person.
This conduct is further defined in section 474.33 of Schedule 1 of the Criminal Code Act 1995 (Cth).
Section 474.33 of Schedule 1 of the Criminal Code provides notification obligations of internet service providers, content service providers and hosting service providers. A failure to notify the Australian Federal Police within a reasonable period after becoming aware of the material will result in a fine of 800 penalty units for that body corporate.
Section 474.34 of Schedule 1 of the Criminal Code provides for the ceasing or removal of the hosting of abhorrent violent material. Penalties for content service providers or hosting service providers can be up to the greater of 50,000 penalty units or 10% of the annual turnover of the organisation. Individuals may be punished by a maximum of 3 years imprisonment or a fine of 10,000 penalty units.
How can Service Providers address these risks?
If your organisation has a web presence that allows for user generated content it may be classed as a ‘service provider’ and subsequently be at risk. For example, if your website has a blog with a comments section, consider what benefit it provides and whether it is worth risking allowing a user to place AVM on your website and potentially being exposed to these offences.
Where you require user generated content such as a forum to promote your business, consider shifting risk to a social media platform such as Facebook or YouTube. Sections 474.33 and 474.34 of Schedule 1 of the Criminal Code create an offence if a person or organisation provides a content service or hosting service and is hosting ‘abhorrent violent material’. A content service or hosting service takes its meaning from the Enhancing Online Safety Act 2015 (Cth). These are defined as a social media service, designated internet service and hosting service.
If you have a platform for user generated content on your website ensure you monitor and moderate the material uploaded promptly to reduce risk. Although some of the above will not eliminate risk completely, it may help businesses with a web presence limit their exposure to fines under these new provisions.
Links and further references
Legislation
Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth)
Enhancing Online Safety Act 2015 (Cth)
Further information about social media law
If you need assistance in identifying and reducing risk regarding social media, contact us for a confidential and obligation-free discussion:
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au
Disclaimer
This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.
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