Having an online presence is a must for any business owner. However, it should not be without careful consideration and curation. You should constantly monitor your business’ website and social media accounts to ensure that the content you and your audience publish does not breach Australian laws. It is important to understand the definitions of ‘illegal content’ and ‘prohibited content’. Understanding these terms can help you avoid infringement and fines if you make such content public and accessible on your website. Hence, this article will outline:
- what illegal content and prohibited content mean;
- where you might find these types of content; and
- practical steps you can take to avoid these types of content ending up on your website.
What is Illegal Content?
Illegal content is content which breaks Australian laws. It includes material such as:
- child pornography or child abuse;
- content that shows extreme sexual violence or materials that are overly violent;
- material that demonstrates, promotes or incites crimes or violent acts; and
- content that promotes terrorism or encourages terrorist acts.
It is always inadvisable to search for illegal content online, even if you are doing so with the intention of reporting or removing it. If you accidentally discover illegal content, you should report it to the Australian Communications and Media Authority (ACMA). ACMA governs the laws surrounding illegal and prohibited content. If ACMA finds illegal content on your website, they can remove it if your website is hosted in Australia.
What is Prohibited Content?
Prohibited content is not illegal. However, it may not be appropriate for all audiences. Prohibited content is content that:
- is ‘refused classification’ (RC); or
- the Australian Classification board rates as only suitable for viewers who are over the age of 18.
For example, prohibited content might include:
- materials which encourage violence, criminal behaviour or dangerous behaviour (e.g. creating weapons, taking or making drugs and carrying out fraudulent or terrorist acts);
- highly graphic sexual acts that would be likely to offend a reasonable adult;
- content that shows self-harm or suicide or explains how to do it; or
- footage that shows real or simulated violence or crimes.
Illegal Content and Prohibited Content Online
Illegal content and prohibited content can be found almost anywhere online, including on:
- forums;
- blogs;
- social media;
- peer-to-peer file-sharing platforms; and
- live visual and audio websites.
You should never upload illegal content or add it to your business’ website. In some circumstances, you may choose to upload prohibited content to your site. However, you should be very careful if you do so. One of the major risks when uploading prohibited content is that it may reach children, which can be especially damaging.
The eSafety Commissioner
Illegal and prohibited content is now regulated and managed by the eSafety Commissioner. The Commissioner has many roles, one of which is to help Australian prevent and deal with harm caused by serious online abuse or illegal and restricted online content. You and users of your website can report issues of illegal and restricted content to the Commissioner, who may choose to investigate these complaints.
The aim is to ensure the safety of children and vulnerable people online. To maintain the good reputation of your business, it is best to be proactive about protecting your website from this kind of content.
Website Terms of Use
Creating a website terms of use is one way to be proactive about your content obligations. As well as maintaining control over the content you add to your website and your social media channels, you also need to maintain control over the content that website visitors upload to your website and channels.
Similar to how you have a privacy policy and sales terms and conditions (if you sell goods or services online), you will need website terms of use. Your website terms of use should:
- set out how visitors can use and interact with your website; and
- contain a user content clause if users can upload content to the website or social media channels.
The user content clause should restrict the types of content users can add. It should also reinforce that any content users add should not breach any laws. Your website terms of use can also state that you only allow users of a certain age to visit the site. This is particularly important if you have prohibited content on your website.
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Key Takeaways
If you run an online business and upload content to your website, you must always comply with Australian laws. As well as possibly being illegal, certain content can damage your reputation. Notably, there is a difference between illegal and prohibited content. Illegal content is anything that breaks Australian laws, such as child pornography or content that promotes terrorism. Prohibited content is not illegal but may not be appropriate for all audiences.
For more information regarding your obligations as an online content provider or assistance preparing your website terms of use, our experienced e-commerce lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
The eSafety Commissioner manages claims of cyberbullying of children, adult cyber abuse and image-based abuse. Keep in mind that such content can take place on your website, depending on its functionality.
It depends. If the comment contains illegal or prohibited content, it is best practice to remove it from your website. This can protect your business and reputation. However, if the comment amounts to a negative online review, you will need to carefully consider if it can be removed. If the negative review relates to your business, you cannot remove it without risking falling foul of the Australian Consumer Law and misleading consumers. However, if the negative review refers to another user and contains illegal or prohibited content, you might decide to remove it.
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