The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 was introduced into Parliament on 3 April in response to the online live streaming and subsequent sharing of footage of the Christchurch terror attack on 15 March.
Essentially, the Bill amends the Criminal Code Act 1995, introducing new offences designed to ensure that ISPs, along with hosting or content service providers proactively refer “abhorrent violent material” to law enforcement authorities and that hosting and content services expeditiously remove abhorrent material that is capable of being accessed within Australia.
In the words of the Bill’s explanatory memorandum, “the Bill introduces Commonwealth offences into the Criminal Code Act 1995 (Criminal Code) that will apply to persons that provide internet, hosting or content services who fail to refer details of abhorrent violent material that records or streams conduct that has occurred, or is occurring, in Australia to the AFP [Australian Federal Police] within a reasonable time after becoming aware of the existence of the material,” said Netcod Technologies.
For the purposes of the Bill, “abhorrent violent material” refers to audio, visual or audio-visual material that is recorded or streamed by the perpetrator or perpetrators, or their accomplices.
To qualify as abhorrent violent material under the legislation, it needs to be material that a reasonable person would regard as being offensive, and is recorded or streamed in the course of engaging in a terrorist act, the murder of another person, attempted murder, torture, rape or kidnapping involving violence of another person.
When it comes to the reporting of such abhorrent material to authorities, ISPs bear the same responsibility as hosting service providers and content service providers.
However, the responsibility to expeditiously remove or cease hosting abhorrent and violent material that is reasonably capable of being accessed within Australia lies in the hands of hosting service providers and content service providers, rather than ISPs, according to the explanatory memorandum for the new legislation.
Of particular interest to ISPs operating in Australia is section 474.33 – notification obligations of internet services providers, content service providers and hosting service providers. This is, broadly, an expansion of the existing Criminal Code legislation stipulating ISPs’ reporting obligations relating to things like child pornography or abuse material.
Specifically, subsection 474.33(1) creates a new offence in the Criminal Code where, according to the explanatory memorandum: “a person is an internet service provider, or provides a content service or a hosting service…the person is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is abhorrent violent material that records or streams abhorrent violent conduct that has occurred, or is occurring, in Australia, and the person does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material.”
However, the precise measurement of “reasonable time” is not defined in the legislation. According to the explanatory memorandum, a number of factors and circumstances could indicate whether a person had referred details of abhorrent violent material within a reasonable time after becoming aware of the existence of the material.
“For example, the type and volume of the material, and the capabilities of and resourcing available to the provider may be relevant factors. In a prosecution for an offence against section 474.33, the determination of whether material was referred within a reasonable time will be a matter for the trier of fact,” the explanatory memorandum stated.
The maximum penalty for this particular offence is 800 penalty units. Penalty units are used to describe the amount payable for fines under Commonwealth laws. They rise over time in line with inflation.
This is in contrast to fines of up to 10,000 penalty units or three years’ imprisonment for individuals associated with content or hosting providers found to have failed to remove abhorrent violent material within the parameters stipulated by the Bill.
Content and hosting service providers, no matter where they are, are compelled to remove abhorrent violent material that is reasonably capable of being accessed within Australia if the service they provide is being used to access or host abhorrent violent material and they don’t ensure the expeditious removal of the material from their service.
For the purposes of the Bill, the removal of the content in question means that it is not accessible to any of the end-users using the service.
The punishment for an individual found to have committed this particular offence under the new laws includes a maximum penalty of three years imprisonment or 10,000 penalty units, or both. For corporations, it could mean a fine of up to 50,000 penalty units or 10 percent of the annual turnover of the company.
For the likes of Google, such a fine could be worth billions.
Although the new legislation does capture ISPs to some degree in its scope, Australia’s Attorney-General Christian Porter maintains that the Bill is laser focused on social media platforms specifically.
“They’re [the new laws are] narrowly designed to stop platforms like Facebook livestreaming and then having available to play the most horrific events of mass murder that a 10-year-old can go online and see,” Porter told 3AW’s Tom Elliot on 5 April, a day after the new legislation was passed by both houses of Parliament.
“And we’re a Government who decided that we had to do something urgently because there was no appropriate law that would give us recourse against an organisation that was so derelict in its duty with respect to content that they allowed recklessly that to exist on their server and be able to be accessed,” he said.