Australia's abhorrent video streaming legislation rammed through Parliament

The eSafety Commissioner given power to send notices that reverse evidentiary proof should prosecution be undertaken.
Written by Chris Duckett, Contributor

The text of the Criminal Code Amendment (Unlawful Showing of Abhorrent Violent Material) Bill 2019 appeared late on Wednesday evening, after the Senate passed it with a minute's consideration.

The proposed laws use existing arrangements that require site owners to notify police if their services are used to access child pornography, with the maximum penalty being three years imprisonment for individuals, or a fine worth 10% of a company's annual global turnover for those that fail to comply.

The scope of the legislation is restricted to content deemed abhorrent and broadcasted by perpetrators and their accomplices who engage in terrorist activity, murder, torture, rape, or kidnapping.

"This subdivision contains new offences that will apply to internet service providers, hosting service providers and content service providers 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 within a reasonable time after becoming aware of the existence of the material," the Bills' explanatory memorandum states.

"The subdivision also contains new offences that will apply to hosting service providers and content service providers who fail to remove from or cease hosting on their services abhorrent violent material that is capable of being accessed within Australia."

Witnesses to any of those crimes that are not affiliated with the perpetrators, such as those who happen to live-stream the activity, are not covered by the Bill. Other exceptions for committing such behaviour include to enforce the law, to conduct investigations or court proceedings, conduct research, advocate for law changes, report in the public interest, or for artistic reasons.

"This requirement is intended to ensure that only material recorded or streamed by the perpetrator(s) and their accomplice(s) will be captured by the definition of abhorrent violent material," the memo said.

"Material recorded or streamed by other persons, such as victims of the conduct, bystanders who are not complicit in the conduct, or media organisations, will not be considered to be caught by this definition even though such material may record or stream abhorrent violent conduct."

Search engines and chat and instant messaging services are not captured by the Bill.

Under the Bill, the eSafety Commissioner has the ability to issue notices to service providers that abhorrent material could be accessed or is hosted on their service, which has created a "presumption for the purpose of any future prosecution that the provider was reckless". This presumption means that if any prosecution arises from breaking the new law, a provider would need to prove they are innocent of being reckless.

"It would be significantly more difficult and costly for the prosecution to prove the defendant had been reckless as to whether the material was abhorrent violent material, than for the defendant to raise evidence indicating the defendant was not reckless as to this matter," the explanatory memorandum says.

"It is intended that the issuing of the notice would act as a warning to the content provider that they may commit an offence if they do not expeditiously remove the material. In most circumstances, if the content service provider were to ensure the expeditious removal of the material after receiving the notice, a prosecution would be unlikely.

"However in some circumstances, such as where the content had been available for a significant period prior to the Commissioner issuing the notice, a prosecution may be appropriate notwithstanding the expeditious removal of the abhorrent violent material after receipt of the notice."

In the case of an event occurring outside of Australia, and the offender is not Australia, the Attorney-General will need to approve in writing any prosecution before it commences.

Newly-placed Liberal Democrat Senator Duncan Spender said on Thursday morning that the Bill was not properly introduced when the Senate voted on it.

"The President of the Senate has questions to answer about why he did not intervene, in or even comment on, this process when he has intervened in other matters threatening the standing of the Senate," Spender said.

"It is bad enough when the government forces a vote on a Bill that members of the public haven't had a chance to respond to. But in this instance, even the Senators haven't had a chance to look at it."

Spender claimed the Bill would ban sadomasochist websites, however the Bill does not cover such behaviour.

"The definition of abhorrent violent material is not intended to capture footage of violent sporting events (for example, boxing), medical procedures, or consensual sexual acts that involve elements of violence," the explanatory memo states.

The Senator from the party on the libertarian side of the spectrum then complained that the Bill failed to cover television broadcasts.

"I can also see that the Bill fails to ban broadcasters from broadcasting abhorrent material and content. This is either based on the view that Kochie would never do such a thing, or it's because the drafters forgot about broadcasters."

Overnight, co-founder of Atlassian Scott Farquhar claimed the law would impact Australian technology jobs, and Shopify CTO Jean-Micel Lemieux said the company would avoid Australia if the Bill passes.

On Twitter and in other media interviews on Thursday morning, Farquhar did not explain how the abhorrent content laws are more onerous than current child abuse material obligations on service providers.

A video of the terror attack in Christchurch was viewed around 4,000 times on Facebook and took 29 minutes before it was finally reported, Facebook said previously.

Despite its removal, approximately 1.5 million copies of the video sprung up on the network in the first 24 hours after the attack. However, only approximately 300,000 copies were published as over 1.2 million videos were blocked at upload, the social media giant said.

The Bill was also rammed through the House of Representatives on Thursday morning, prior to Parliament being prorogued for an expected election to be announced on Saturday.

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