Following the Christchurch terrorist attack on 15 March 2019, the Australian Government passed an amendment to the Criminal Code to require social media platforms to expeditiously remove abhorrent violent material and, where relevant, refer it to the Australian Federal Police. The law came into force on 6 April 2019.
The law applies to social media services and hosting services, whether located within or outside Australia. It creates an offence for an internet service provider, or a person providing a social media service or hosting service, to fail to refer to the Australian Federal Police material that can be accessed on their service that they have reasonable grounds to believe records or streams abhorrent violent conduct occurring in Australia (s. 474.33). The maximum penalty is $168,000 for an individual or $840,000 for a body corporate.
The law also creates offences for persons providing social media or hosting services who fail to expeditiously remove abhorrent violent material from their services (s. 474.34). The offence attracts penalties of up to 3 years imprisonment and $2.1 million for individuals and up to $10.5 million or 10% of the annual turnover of a body corporate.
Abhorrent violent material is defined as audio, visual, or audio-visual material that records or streams abhorrent violent conduct that reasonable persons would regard as being offensive, where that material is produced by a person engaged in the abhorrent violent conduct (s. 474.31). Abhorrent violent conduct is defined as terrorist acts, murder or attempted murder, torture, rape or kidnapping (s. 474.32).
The amendments also allow the Australian eSafety Commissioner to issue a written notice stating that a social media or hosting service could be used to access specified abhorrent violent material. The notice has the effect of imposing a rebuttable presumption on the accused that they were reckless as to whether the specified material was available on their service and whether the material was abhorrent violent material. The fault element for the offences in s. 474.34 is recklessness.
The Act sets out several defences, including where the material was necessary for law enforcement; where the material relates to a news or current affairs report that is in the public interest and is made by a person working in a professional capacity as a journalist; where the accessibility of the material is for the purpose of advocating law reform and the accessibility is reasonable in the circumstances; and where the accessibility of the material relates to the development, performance, exhibition or distribution, in good faith, of an artistic work (s. 474.37).
The Act requires the written consent of the Attorney-General before proceedings for an offence against these provisions can be initiated (s. 474.42). The Australian Parliament noted that this was "an important safeguard against inappropriate prosecutions" (House of Representatives Second Reading Speech).