The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (CTH) (‘the Bill’) was introduced to the Federal Parliament on 3 April 2019. The Bill was introduced as a response to the Christchurch terrorist attack on 15 March 2019, in which the perpetrator live-streamed his actions. His video was widely shared on social media platforms.
The Bill passed both houses on 4 April and received the Royal Assent on 5 April 2019. The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (CTH) (‘the Act’) came into force on 6 April 2019, according to the Bill as Passed.
The Act introduces new offences to the Criminal Code Act 1995 (CTH) (‘the Criminal Code’), which place obligations on internet service providers to take action where abhorrent violent material is accessible through their services. The Act aims to prevent online platforms being used by perpetrators of violence to spread their messages.
Abhorrent violent material is defined as "audio and/or visual material that records or streams the abhorrent violent conduct of one or more persons". Abhorrent violent conduct is defined under section 473.32(1) of the amended Criminal Code as:
“474.32 Abhorrent violent conduct
(1) For the purposes of this Subdivision, a person engages in abhorrent violent conduct if the person:
(a) engages in a terrorist act; or
(b) murders another person; or
(c) attempts to murder another person; or
(d) tortures another person; or
(e) rapes another person; or
(f) kidnaps another person.”
Under the amendments made by the new Act, internet, hosting or content services will be required to:
The Act also provides new powers to the eSafety Commissioner to issue written notices to service providers notifying them of material hosted or accessible on their services.
Providers who fail to notify the Australian Federal Police of abhorrent violent material streaming on their platform will face fines of up to $168,000 for an individual or $840,000 for a corporation. Providers who fail to remove this content will face jail time or fines or both if failing to comply. Individual offenders face fines up to $2.1 million and 3 years imprisonment. Corporate bodies face penalties up to $10.5 million or 10% of the annual turnover of the body corporate.
The President of the Law Council of Australia, Arthur Moses SC warns:
“Making social media companies and their executives criminally liable for the livestreaming of criminal content is a serious step which requires careful consideration. Furthermore, the proposed legislation should not absolve government taking steps to prevent crimes being livestreamed … Whistleblowers may no longer be able to deploy social media to shine a light on atrocities committed around the world because social media companies will be required to remove certain content for fear of being charged with a crime. It could also lead to censorship of the media, which would be unacceptable.”
Atlassian co-founder and CEO Scott Farquhar has also criticised the new legislation on Twitter, arguing that the new Act will damage Australia’s technology industry and potentially cost jobs. He further notes that the lack of definitions in the amendments mean uncertainty moving forward, and the potential that individuals and companies will be “guilty until proven innocent”.
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Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (CTH), Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (CTH), and supporting material available on TimeBase's LawOne Service.
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