Government’s rushed web-cleansing operation … Failure to consult, the exception being News Corp … Massive penalties for online “providers” of abhorrent material … Vague and unsatisfactory law … Moses issues tablets … Powerless to stop terrorist atrocities but trying to stop people looking at them … Janek Drevikovsky looks closely at the latest in the anti-terror arsenal
The law that passed parliament on Thursday (April 4) is a response to the live streaming of the Christchurch massacre, which was shared to social media. The footage was seen worldwide, remaining on Facebook for up to 72 minutes, and is still accessible in some parts of the internet.
In the hope of thwarting the streaming of future atrocities, parliament passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019. The SAVMA Act introduces harsh penalties for social media platforms that fail to remove abhorrent, violent material from their websites.
Attorney General Porter said the “tough new laws” mean Australia is “leading the world”.
The Act was introduced to the Senate Wednesday night, where it passed without debate. Greens’ senators tried opposing the legislation to no avail.
Shadow Attorney General Mark Dreyfus said his party had “serious concerns that this Act has been poorly drafted and will not achieve its intended purpose”.
Yet, in its time-honoured fashion, Labor supported the legislation anyway, helping it to clear the House of Reps on Thursday afternoon.
Others have described the Act as a “knee-jerk reaction” and poorly thought out. The managing director of Digital Industry Group Inc, Sunita Bose, criticised a lack of consultation and an excess of haste:
“It is concerning that this legislation has been announced – with the government planning to rush it through parliament in just three days — without any meaningful consultation with the digital industry, security, legal and technical experts, the intelligence community, the media, and civil society; and, ahead of its own first Government Taskforce meeting to address the issue on Friday.”
Media lawyers heard word a draft Bill was in the pipeline and there would be consultations in due course.
Then they were told the government was “fast-tracking” the legislation. The Law Council pointed, once again, to the government’s appalling record of consulting interest groups affected by its legislation.
There was a selective consultation with the two organisations most supportive of the government, News Corp and Free TV.
The public broadcasters, the Nine newspapers, the Guardian and the social media platforms were not briefed and had no input. All were caught by surprise.
The Act extends only to online audio or video depicting murder, attempted murder, rape, torture, violent kidnapping or terrorism. It imposes obligations mainly on social media companies and, more generally, on “hosting service providers”, including non-social media hosts.
In some circumstances, the law will also affect internet service providers, meaning internet subscription services like Telstra or Optus.
Both natural persons and corporations are covered, though Labor sources speculate it may be difficult to prosecute, say, social media executives.
That’s because the Act is drafted in terms of “providing” online services, and it is unclear whether any one executive at a company like Facebook or Twitter actually “provides” anything.
Attorney General Christian Porter said individual people are at the bottom of smaller services like the message board 4Chan or a “terrible platform like [the notorious extreme right wing platform] 8Chan”. He believes these people could be described as “providing” the service and, accordingly, prosecuted.
Even in the case of larger social media sites, Porter said there could be cases where an “individual is so complicit in the availability of abhorrent violent material” as to be liable.
Scott Farquhar, co-founder of Australian tech giant Atlassian, criticised the wide scope of the laws:
“As written, that applies to news sites, social media sites, dating sites, job sites – anywhere user content could be created.”
Wholly exempted from the Act are those who provide a carriage service, where material is not hosted, but transmitted directly from one user to another. So platforms like iMessenger, WhatsApp and SMS are not covered.
The Act makes it a crime for social media companies and hosting service providers not to “expeditiously” remove abhorrent violent material.
The material must have in fact been abhorrently violent within the Act’s meaning, and must have been accessible via the online platform in question. It will be enough if the accused is merely reckless on these points.
The offence applies only to material accessible in Australia. The attorney general must consent before the offence can be prosecuted.
Curiously, there is no definition of “expeditious”. The explanatory memorandum says its meaning must be determined in the circumstances of each case, including the “volume of the abhorrent violent material, or the capabilities of and resourcing available to the provider”.
Law Council President Arthur Moses urged government to be realistic about what social media companies could do.
“A machine cannot easily pick up the difference between a computer game and online live streaming. The algorithms may need time to be developed, assuming they can be.”
Both natural persons and corporations can fall foul of the new offence. For natural persons, the maximum penalty is three years’ prison or $2.1 million, or both.
For a corporation, it’s a $10.5 million fine or 10 percent of turnover, whichever is greater. Turnover means not just Australian but global takings, according to the explanatory memorandum.
Moses criticised this turnover-based fine. “Companies will be punished by reference to their size rather than the seriousness of their breach,” he said, arguing this would be bad for business certainty and may have a chilling effect on investment in Australia.
The LCA president also said it may be unconstitutional to base the fine on global revenue.
More generally, Atlassian’s Scott Farquhar predicted difficulties for the tech industry:
“Let me be clear, no-one wants this material on the internet. But the legislation is flawed and will unnecessarily cost jobs and damage our tech industry.”
Accused parties will avoid conviction if the material was online for one of nine designated reasons.
For example, material published by a journalist, in the public interest and relating to a news or current affairs story is exempt. So is material relating to academic or medical research.
Also exempted is material used in “good faith” in relation to an artistic work. Likewise, for material which must remain available for a public official’s work, or for judicial proceedings, or for the investigation of breaches of the law.
Despite the exemptions, media stakeholders were concerned that news reporting could be affected by the new laws. According to a News Corp spokeswoman, the law “risks criminalising news reporting and provides significant powers … to take down news content”.
The chief executive of the Media Entertaining and Arts Alliance, Paul Murphy, agreed, saying he had “concerns that the legislation is being rushed in such a complex area without proper consideration to ensure it does not impinge on media freedom”.
There are also concerns about material posted by non-journalists, who are not protected by the exemption. Independent MP Kerryn Phelps said activists and whistleblowers often used social media to reveal atrocities, sometimes in graphic detail:
“The bill could, in effect, lead to censorship of the media, which could undermine the very potential of the fourth estate to hold governments to account.”
Greens Senator Jordan Steele-John agreed, saying the laws could be used to take down videos of refugees being mistreated on Manus Island.
The Act also allows the eSafety commissioner to issue notices to social media companies or hosting services, if the commissioner believes abhorrent violent material is accessible.
If a notice has been issued and the recipient is later prosecuted under the Act, two presumptions arise.
First, it is presumed the defendant was reckless as to whether the material was accessible, and secondly it is presumed they were reckless as to whether the material was abhorrently violent.
In other words, the chief mens rea elements of the offence will be presumed proven.
To rebut these presumptions, the defendant must show there was a reasonable possibility they did not act recklessly.
Dr Andre Oboler, CEO of the Online Hate Prevention Institute, criticised the system of presumptions, worrying they might undermine cooperation between government and social media companies.
The Act also criminalises the failure to report live-streamed violent conduct that is happening in Australia. Internet service providers, social media companies and “hosting service providers” are all caught by this offence.
If they know their service is streaming abhorrent violent conduct which they believe to be happening in Australia, they must report it to the Federal Police.
Failure to do so attracts a $168,000 fine for individuals or $840,000 for corporations.
The attorney general’s consent is again required before prosecution, but only if the defendant is operating wholly overseas and is neither an Australian citizen nor an Australian company.
To avoid any constitutional trouble, the Act says explicitly it is not intended to interfere with the implied right to political communication.
Even so, there are concerns the Act will imperil free speech. Brett Solomon, the director of human rights group Access Now, wrote in the Sydney Morning Herald that the laws would have a chilling effect on online communication.
“Online platforms will be incentivised to err on the side of censorship and, when in doubt, block or remove the problematic video, audio or blogpost.”
Facebook itself has given some credence to this argument. Chief Operating Officer Sheryl Sandberg said the platform was investigating how it could restrict certain people from going live, depending on past community standard violations.