The government has managed to push legislation responding to the live-streaming of the Christchurch terror attack at breakneck speed. The legislation was introduced and passed in the Senate last night with no debate, and this morning passed by the House of Representatives with bipartisan support.
What are the offences created by the legislation?
The new laws create two offences. The first one applies to Internet service providers and providers of a hosting service or content service. It creates an obligation to report ‘abhorrent violent material’ (or material reasonably believed to be abhorrent violent material) to the Australian Federal Police if that service can be used to access the material, and the conduct involved is taking place (or took place) in Australia.
The material must be reported to the AFP within “within a reasonable time after becoming aware of the existence of the material”. A “reasonable time” depends on the circumstances, according to the government. Attorney-General Christian Porter today said that it was unacceptable that the Christchurch attack footage was available on Facebook “for well over an hour without them taking any action whatsoever”.
The second offence relates to a failure to remove or cease hosting abhorrent violent material. It applies to content and hosting service providers. A content service provider is guilty of an offence if they fail to remove access to abhorrent violent material in an “expeditious” manner, if that material is “reasonably capable” of being accessed within Australia. A hosting provider is guilty of an offence if they fail remove abhorrent violent material from their service (again in an “expeditious” manner and if the material is capable of being accessed in Australia).
In these cases it does not matter whether or not the hosting or content service is based in Australia or not, nor whether the material depicts violent conduct in Australia.
The definition of content service excludes merely providing an Internet connection that can be used to access material. It also excludes companies that just provide billing or similar services.
Where does the eSafety Commissioner fit in?
Under the new legislation, the eSafety Commissioner is empowered to issue a notice to a content service provider or a hosting service provider that essentially alerts them that relevant violent material can be accessed through or on their service. If ignored, the notice can be used during a prosecution to help prove that the service provider was “reckless” in their conduct.
However, a key element is that content and hosting services don’t necessarily need to be notified by the commissioner of the existence of the material for an offence to be committed. The fault element is “recklessness”.
A notice from the commissioner would “create a presumption for the purpose of any future prosecution that the provider was reckless as to whether the specified material that could be accessed on their service was abhorrent violent material,” the bill’s explanatory memorandum states.
“In most circumstances, if the content service provider were to ensure the expeditious removal of the material after receiving the notice, a prosecution would be unlikely,” the memorandum states.
“However in some circumstances, such as where the content had been available for a significant period prior to the Commissioner issuing the notice, a prosecution may be appropriate notwithstanding the expeditious removal of the abhorrent violent material after receipt of the notice.”
What is abhorrent violent material?
Under the legislation, abhorrent violent material is audio or video that “records or streams abhorrent violent conduct” and is “material that reasonable persons would regard as being, in all the circumstances, offensive”. Crucially, it also needs to be produced by a person (or persons) who engaged in the violent conduct, or conspired or attempted to engage in the violent conduct, or “aided, abetted, counselled or procured, or was in any way knowingly concerned in, the abhorrent violent conduct”.
So what is abhorrent violent conduct?
Abhorrent violent conduct involves terrorism, murder, attempted murder, torture, rape or kidnapping.
What penalties are there for breaching the new obligations?
For failing to notify the AFP of abhorrent violent material within a reasonable time frame, a fine of up to 800 penalty units is possible. At the moment, a penalty unit weighs in at $210 — so a fine of up to $168,000 is on the table.
For failing to remove content that is accessible within Australia, corporations face fines of up to 50,000 penalty units ($10.5 million) or 10 per cent of annual turnover, whichever is greater. Individuals face fines of up to three years’ prison or 10,000 penalty units ($2.1 million).
Are social media executives going to be sent to prison?
It’s difficult to say but it seems somewhat unlikely. Attorney-General Christian Porter was asked about this at a press conference following the passage of the new laws through the House of Representatives. He said it “depends on context” whether an individual would be liable. Sites such as 4Chan and 8Chan were founded and operated by individuals he said, so it is likely that an operator of such a site could face charges in some circumstances.
There is “often loads of individual responsibility in the smaller platforms,” Porter said. When it comes to larger platforms, such as Facebook and YouTube, the AG said that the advice from the Commonwealth Director of Public Prosecutions is that “there could be instances where an individual is so complicit with the reckless availability of violent material that they would be individually liable".
Do the laws cover news reporting?
There are a range of defences available under the act, such as the material remaining accessible in order to investigate a crime or for the purposes of court proceedings. One defence is that the material “relates to a news report” or “current affairs” report that is “in the public interest” and is by a “person working in a professional capacity as a journalist”. Another defence is that the accessibility of the material is both necessary for and “reasonable in the circumstances” for “the purpose of conducting that scientific, medical, academic or historical research”.
A further potential defence is that the accessibility of the material is “for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice” — whether in Australia or another country.
The laws also do not apply “to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication”.
Who objects to the new laws?
The new law — particularly the haste with which the government introduced and passed legislation — has raised concerns among a wide variety of sectors and organisations including the Law Council of Australia and News Corp. Labor has also criticised the law, despite supporting its passage. The tech sector, still dealing with the fallout from the government’s ‘encryption’ legislation, has been particularly vocal.
Following the legislation’s passage through the House of Representatives, Sunita Bose, the managing director or DIGI — Digital Industry Group Inc, whose members include Google, Facebook and Twitter — said the law would do “nothing to address hate speech, which was the fundamental motivation for the tragic Christchurch terrorist attacks”.
Bose said that the law was passed “without any meaningful consultation”.
“Let’s be clear: no one wants abhorrent content on their websites, and DIGI members work to take this down as quickly as possible,” she said in a statement. “But with the vast volumes of content uploaded to the Internet every second, this is a highly complex problem that requires discussion with the technology industry, legal experts, the media and civil society to get the solution right — that didn’t happen this week.
“This creates a strict internet intermediary liability regime that is out of step with the notice-and-takedown regimes in Europe and the United States, and is therefore bad for internet users as it encourages companies to proactively surveil the vast volumes of user-generated content being uploaded at any given minute,” she said.
StartupAUS CEO Alex McCauley said that the “haste and lack of consultation with which this legislation has been created is a real concern”. He said Australia had shown a trend towards “jumping into anti-tech legislation in a knee jerk fashion”.
“This legislation was drafted and rushed through the Senate in less than three weeks,” he said. "That's not enough time to get it right. There has been virtually no consultation, which has led to a poor piece of legislation. Nowhere is this clearer than the fact that the proposed law doesn't include a public interest exemption —something that is deeply concerning.”