Australia introduces criminal sanctions for internet, content and hosting providers in wake of Christchurch attack

New laws aimed at filling the gaps in Australian law which allowed the recent Christchurch terror attack to be live streamed on Facebook have been implemented across Australia.

The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (Bill) was introduced in Parliament on 3 April 2019 as a direct response to the live stream of the Christchurch terror attack. The Bill received royal assent just two days after it was introduced in the Senate and on 6 April 2019, the provisions of the Bill (now the “Act“) came into effect.

The new laws require internet, content and hosting providers to notify authorities of abhorrent violent material hosted or streamed on their services and remove such content “expeditiously” or face substantial criminal sanctions.

Amendments to the Criminal Code

The Act amends The Criminal Code which is attached to the Criminal Code Act (Cth) 1995 (the Code) to include definitions of Abhorrent Violent Conduct (AVC) and Abhorrent Violent Material (AVM) and impose obligations on:

a. internet, content and hosting service providers to notify the Australian Federal Police (AFP) as soon as they become aware that, through the provision of their respective services, they are providing and/or hosting content that is AVM; and

b. content and hosting service providers to expeditiously remove and/or cease to host such AVM.

Abhorrent violent conduct and abhorrent violent material

A person engages in AVC if they engage in a terrorist attack or if they murder, attempt to murder, torture, rape or kidnap another person.

Abhorrent Violent Material (AVM) is material that is audio, visual or audio-visual that:

  1. streams AVC engaged in by one or more persons; or
  2. a reasonable person would consider offensive in all the circumstances; and
  3. is produced by one or more persons, each of whom, as regards AVC, has either: engaged in; attempted or conspired to be engaged in; aided, abetted, counselled or procured; or was otherwise knowingly concerned in, the AVC.

Notification obligations

Under the Act, persons who are internet service providers, providers of content services or providers of hosting services (within or outside of Australia) will commit an offence if they do not refer to the AFP, within a reasonable time, the details of AVM that:

a. contains AVC which has occurred/is occurring in Australia; and

b. is available via their services.

Failure to comply with such notification obligations is punishable by a fine of 800 penalty units ($168,000). However, if the person providing the services reasonably believes that the details of the material are known to the AFP, that person does is not have to comply with such requirements.

Removal obligations

A person commits an offence if they provide a content service or hosting service (within or outside Australia):

a. that provides or hosts AVM which is reasonably capable of being accessed within Australia; and

b. does not:

i. ensure the expeditious removal of the AVM (if that person is a content service provider); or

ii. expeditiously cease hosting the AVM (if that person is a hosting service provider).

The penalties applicable for contraventions of these removal provisions differ for providers that are persons and providers that are companies. In that regard, if the content or hosting service provider is a:

a. person, that person may be imprisoned up to three years and/or fined up to 10,000 penalty units ($2,100,000); or

b. company, that company may be fined (not more than the grater of):

i. 50,000 penalty units ($10,500,000); or

ii. 10% of the company’s annual turnover (with the annual turnover being determined in accordance with the provisions of the Act);

Purpose and review

Given the onerous criminal penalties the Act imposes, the rapid passing of the Act has been subject to much scrutiny by the digital industry.

Specifically, this stems from the fact that the Act was passed within two days, without amendment and without consultation with the industry, noting that the rapid drafting of the Act means that terms like “expeditiously” have been left undefined and the Act will need further review.

Although components of the Act might need further review, the Act highlights the Australian Government’s urgency to take measures to fill the gaps in Australian law that exist due to modern day technologies and the internet.

This article was written by Georgette Georges, Lawyer – Commercial.