Legislation that will see social media companies and executives face hefty fines with jail time for failing quickly remove violent content from their platforms, passed the Senate last night with minimal debate, before being waved through the lower house this morning.
The Criminal Code Amendment (Unlawful Showing of Abhorrent Violent Material) Bill 2019 creates new offences for not “expeditiously” removing footage of criminal acts from content and hosting services and for failing to notify the Australian Federal Police “within a reasonable time” if violent material is found on provider platforms.
The notification obligations also apply to internet service providers.
The new legislation comes in response to what Attorney-General Christian Porter called a “ Christchurch mosques massacre last month.
Presented by communications minister Senator Mitch Fifield, the bill passed the Senate last night without discussion, save for opposition from Australian Greens leader Senator Richard Di Natale who protested: “We're being asked to ram through this legislation at a rate of knots”.
Earlier in proceedings Liberal Democrat Senator Duncan Spender claimed that it was a bill that “no-one has any idea about” nor had seen.
“This debate needs debate so we don't make completely stupid decisions – but anyway,” Spender said.
Earlier in the week, shadow attorney-general Mark Dreyfus claimed the bill was “poorly drafted and will not achieve its intended purpose” adding that “Labor will not stand in the way of this bill, despite our concerns”.
Dreyfus claimed a Labor government would refer the bill “immediately” to the Parliamentary Joint Committee on Intelligence and Security for review.
‘Abhorrent violent material’ is defined in the bill as being audio or visual content produced by one or more people engaging in ‘violent conduct’ that “reasonable persons would regard as being…offensive”. Violent conduct covers terrorist acts, murder, torture, rape and kidnap.
It is “immaterial” whether the content service hosting services covered by the legislation provide their services from within Australia or elsewhere. It is also immaterial "whether the abhorrent violent conduct was engaged in within or outside Australia".
Material is considered ‘removed’ only “if the material is not accessible to any of the end-users using the service” the bill says.
The legislation also gives powers to the eSafety Commissioner to issue written notices to content and hosting services if violent material is found on their platforms.
There are a number of defences laid out in the bill, including if the material is in the public interest or made by a journalist. It also makes clear that a company does not provide “a content service merely because the person supplies a carriage service that enables material to be accessed”.
Nothing in the bill covers television broadcasts, an omission criticised this morning by Spender.
“This is either based on the view that Kochie [TV presenter David Koch] would never do such a thing, or it’s because the drafters forgot about broadcasters,” he said in a statement.
Lack of consultation
The lack of consultation on the legislation has been criticised by technology companies, lawyers and civil liberties groups this week.
The Digital Industry Group Inc (DIGI) which represents the likes of Facebook, Google, Oath and Twitter, on Tuesday said the speed of the process was “concerning” and had been done “without any meaningful consultation”.
“Announcing measures such as jailing staff at social media companies is inappropriate for a democracy such as Australia, and does not help the debate or solve the issue,” said DIGI managing director Sunita Bose.
The Australian Industry Group (Ai Group) – which represent the interests of more than 60,000 businesses – said yesterday: “Creation of new offences, regulation of media and extraterritorial laws raise legitimate questions that cannot be answered in a day or two."
The Law Council of Australia – which represents 65,000 Australian lawyers – this week called the legislation “bad for certainty and bad for business” which set a “dangerous precedent”.
“Bad and ineffective legislation is enacted when it is a knee jerk emotional reaction to a tragic event,” council president Arthur Moses said.
Atlassian co-founder and CEO Scott Farquhar took to Twitter last night to criticise the bill and process.
“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,” he tweeted.
“From the party that says they are about jobs and the economy, I can’t fathom how and why the government would introduce such flawed legislation that puts more tech jobs in jeopardy,” he added.
Update 11.30am: The bill has been passed by the House of Representatives.