While the burst of action in Parliament — on what is widely believed to be the last sitting day of Parliament before the election — was good for SMEs in terms of the $30,000 instant asset write-off, the business and legal communities were less pleased with the implementation of new laws in response to last month’s terrorist attack in Christchurch which was livestreamed on Facebook.
The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 was introduced to, and approved by, the Senate on Wednesday (3 April), and subsequently passed by the House of Representatives a day later.
An explanatory memorandum of the new law said that the amendment “will address significant gaps in Australia’s current criminal laws by ensuring that persons who are internet service providers, or who provide content or hosting services, take timely action in relation to abhorrent violent material that can be accessed using their services”.
“This will ensure that online platforms cannot be exploited and weaponised by perpetrators of violence,” it said.
“This bill will make amendments to the Criminal Code Act 1995 to introduce new offences to ensure that internet, hosting or content services are proactively referring abhorrent violent material to law enforcement, and that hosting and content services are expeditiously removing abhorrent violent material that is capable of being accessed within Australia.”
Under the bill, internet service providers (ISPs) as well as hosting and content service providers will be obligated to report “abhorrent material” to the Australian Federal Police (AFP) within a “reasonable time frame”.
It defined “abhorrent material” as “audio, visual or audio-visual material that is recorded or streamed by the perpetrator(s) or their accomplices” which would be considered offensive by “reasonable people”.
That would include terrorist acts, murder or attempted murder, torture, rape or kidnapping.
Lack of consultation ‘a real concern’
StartupAUS CEO Alex McCauley said that the rushing through of the new laws is “a real concern”.
“Between this and the Access and Assistance Act, we’re starting to see a trend towards jumping into anti-tech legislation in a knee-jerk fashion,” he said.
“This legislation was drafted and rushed through the Senate in less than three weeks. That’s not enough time to get it right. There has been virtually no consultation, which has led to a poor piece of legislation.
“Nowhere is this clearer than the fact that the proposed law doesn’t include a public interest exemption — something that is deeply concerning.”
The head of the country’s advocacy group for start-ups said that emerging technologies are continually throwing up “many thorny regulatory questions”, which require policy frameworks that are “thoughtful and deliberate”.
“That means engaging in consultation with industry, upskilling lawmakers on existing and emerging technologies, and doing some forward planning about what’s coming and how we can sensibly respond,” he said.
“If we rush it, we’ll get it wrong. We then run the risk of hurting a promising Australian industry while simultaneously failing to protect the public adequately.”
Mr McCauley added that the bill is “broad in scope”, leaving it open to potential misapplication.
Possible ‘chilling effect on business’
Meanwhile, the Law Council of Australia’s president, Arthur Moses, warned that the laws being “rushed through” Parliament could have “serious unintended consequences” without the benefit of a proper consultative approach.
“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,” Mr Moses said.
“Law enforcement agencies must work with social media companies to develop intelligence sharing protocols to assist in detecting livestreaming that is broadcasting violent or criminal content.”
Mr Moses warned that knee-jerk reactions from policymakers “do not necessarily equate to good legislation” and can create unintended consequences.
“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,” he said.
“It could also lead to censorship of the media, which would be unacceptable.”
He noted that, under the new laws, social media platforms and other content hosts could be punished by three-year jail terms or fines equivalent to as much as 10 per cent of annual turnover.
Meanwhile, failure by these platforms — based anywhere in the world — to notify the AFP of such material could elicit fines of up to $840,000 for companies and up to $168,000 for individuals.
“This would be bad for certainty and bad for business. It could have a chilling effect on businesses investing in Australia,” Mr Moses concluded.
“We also need to be sensible when working on these offences and not demand of social media companies what they cannot reasonably be expected to do.”