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In April 2019, new laws came into place that criminalises sharing abhorrent violent material online. These laws are called the Criminal Code Amendment (Sharing Abhorrent Violent Material) Act 2019 (Cth). 

While the new laws were made to target unacceptable behaviour, some critics have argued that they were hastily drafted and passed without a chance for proper discussion. Many online business owners are unsure of their new obligations and concerned about how the new laws could affect their business. This article will explain:

  • exactly what ‘abhorrent violent material’ means;
  • what the new laws do; and
  • what these laws mean for online businesses. 

What Is Abhorrent Violent Material?

Abhorrent violent material is audio or visual material which records or streams the:

  • committing of a terrorist act resulting in serious physical harm or death;
  • murder of another person;
  • attempted murder of another person;
  • torture of another person;
  • rape of another person; or
  • kidnapping of another person.

The laws only apply, however, if the material is recorded or streamed by the person or people taking part in the abhorrent violent acts.

Why Were These Laws Introduced?

The laws were introduced in response to the terror attack in Christchurch, New Zealand in March 2019. Video content of the terror attack was shared on multiple online platforms and the government created these laws in response. The laws were intended to stop content being shared which could: 

  • promote or incite violence and terror; or 
  • harm or distress the community.

Parliament passed the laws in just one day and they came into force two days later. This meant that there was no public consultation process, leading to concern from the media, legal professionals and online businesses. 

What Do the Laws Aim to Achieve?

Under the new laws, internet service providers and hosting service providers must remove abhorrent violent material from their platforms. 

These businesses and individuals must also report this content to the Australian Federal Police within a reasonable time after they become aware of it. 

Failing to take either of these steps is now a criminal offence.

Are There Any Exceptions?

Certain material is exempt from the new laws. These exceptions include material that is:

  • required by law (i.e. necessary for court proceedings);
  • reported in the public interest (i.e. part of a news report);
  • genuine performance, exhibition or distribution of artistic work (i.e. a piece of film or music made in good faith);
  • used for research (i.e. necessary to conduct scientific, medical, academic or historical research); or
  • made available for the purpose of advocating social or political change.

What Are the Penalties?

Failure to comply with the new requirements is an offence. If a business or individual does not meet their obligations under these laws they will face a penalty. This penalty will depend on the nature of the offence.

Failure to Remove Content

If a business does not remove the content in a timely manner, they will face a fine. This fine could be up to: 

  • AUD$10.5 million for smaller businesses; or 
  • 10% of the annual turnover for the whole corporate group if this figure is greater than AUD$10.5 million. 

Individuals may also be personally punished if they are able to remove and report abhorrent violent material from internet service provider services or hosting services and fail to do so. This may be the case for employees at these businesses. The maximum penalties for individuals are:

  • a fine of AUD$2.1 million dollars; or 
  • a 3-year jail sentence. 

Failure to Notify the Australian Federal Police

Failing to notify the police of abhorrent violent content within a reasonable time could result in a penalty of up to: 

  • AUD$840,000 for corporations; or 
  • AUD$168,000 for individuals.

What Does This Mean for Online Businesses?

These laws raise several important questions for online businesses. If you own an online business, you should carefully consider the following issues. 

Do These New Obligations Apply to My Business?

The laws apply to:

  • internet service providers (i.e. businesses that supply internet connect, such as TPG);
  • content service providers (i.e. software that allows users to create and share content); and
  • hosting service providers (i.e. businesses that host websites, such as Bluehost).

They do not apply to:

  • carriage service providers (i.e. businesses that supply telecommunication services to the public, such as Telstra); or 
  • businesses which merely provide a billing or fee collection service in relation to a content service (i.e. businesses that provide payment services to other service providers, such as PayPal).

How Long Do I Have to Remove Abhorrent Violent Material?

How fast businesses must remove content will be determined on a case by case basis. It will depend on factors such as the: 

  • type of material;
  • volume of material; and 
  • resources available to the business responsible for removing the content. 

How Long Do I Have to Report Abhorrent Violent Material? 

If you become aware of abhorrent violent content, you must report it to the Australian federal police within a reasonable time. What a reasonable length of time may be will depend on factors such as the: 

  • volume of the material; and 
  • resources available to your business. 

What Steps Can an Online Business Take to Comply?

If the new laws affect your online business, you should assess your current business practices and identify any potential risks.

The best course of action for your business will depend on factors such as: 

  • how much content your business hosts;
  • how much of your content is accessible within Australia;
  • the type of content users typically share;
  • whether you are able to filter, review and remove content; and 
  • whether users can easily share content widely using your services.

However, there are certain steps that all online businesses should think about taking. If you own an online business, you should consider:

  • updating the business’ terms and conditions to ensure the relevant content is prohibited and you have the right to remove content;
  • updating any additional content moderation policies which exist outside of the terms and conditions to address these new obligations; and
  • strengthening your ability to filter, review and remove offensive content.

Key Takeaways

These new laws create new obligations for many online businesses. However, you should ensure that your online business remains up to date with any changes in this space. This is because failing to comply with these obligations will now constitute an offence under the Criminal Code. You should take steps now to prepare your business for the new laws. If you need help assessing your business’ compliance or conducting a legal review, contact LegalVision’s online lawyers on 1300 544 755 or fill out the form on this page.

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