The 'chilling' unintended consequences of Australia's new social media laws

Mariam Cheik-Hussein
By Mariam Cheik-Hussein | 4 April 2019
Scott Morrison

The Coalition Government's proposed social media laws have set off an alarm from big tech companies, traditional media and legal experts in Australia, warning of unintended consequences.

The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill passed the Senate yesterday with no amendments from the Opposition, and is expected to be put before the House of Representatives today.

The laws are aimed at preventing the “weaponisation of social media platforms” following the Christchurch attack during which Facebook’s live-streaming service was used to broadcast the killing of 50 people.

Platforms anywhere around the world will be required to notify the Australian Federal Police (AFP) of any “abhorrent violent conduct” being streamed once they become aware of it. Failing to notify the AFP can result in fines of up to $168,00 for an individual or $840,000 for corporations.

It also seeks to make it a criminal offence for platforms not to remove abhorrent violent material “expeditiously”. Those in breach could face three years’ imprisonment or fines of up to 10% of the platform’s annual turnover.

DIGI, the lobby group for tech companies including Facebook, Twitter and Google, says the bill has far-reaching consequences and the government failed to consult experts across tech, media and legal sectors.

In a letter, DIGI raises concerns over social media company’s being forced to share data with the AFP, which would violate laws in some parts of the world.

“The bill is at risk of undermining Australia’s important security co-operation with the United States under the CLOUD Act, by potentially requiring US Internet providers to share content data with the AFP in breach of US law,” the letter says.

It also claims that the laws don’t address the real issue behind the terror attacks.

“The bill does nothing to address hate speech, which was the fundamental motivation for the tragic Christchurch terrorist attacks,” the letter reads.

“The current legal definition of hate speech sits within the Racial Discrimination Act 1975 and therefore only applies to race-based hate speech, and does not include religious-based speech.”

Traditional media also raises concern
Free TV CEO Bridget Fair says that while digital platforms need more regulation, the current bill impacts Australian news providers who “are not the problem and should not face criminal penalties for reporting the news”.

“While the government has genuinely worked to limit the impact of the bill on Australian media companies, the legislation is flawed and has been rushed to parliament," Fair says.

“It should have been referred to the Parliamentary Joint Committee on Intelligence and Security to consider the effect on all media. Legitimate Australian news outlets already have extensive editorial processes and standards in place and should be exempt from the scope of these laws.”

NewsMediaWorks CEO Peter Miller says the news media owners it represents are “disquieted” by the current bill. Its members include News Corp Australia, Seven West Media, The Guardian and Nine’s The Sydney Morning Herald, The Age and The Australian Financial Review.

“Whilst our members recognize and embrace the intent of the legislation, there is concern at unintended consequences, such as those raised by the Law Council of Australia,” Miller says.

“The Law Council of Australia’s reservations and recommendations – which include the parliament taking a deep breath before proceeding – have received wide coverage in the news media today.”

Law Council echoes concern
Law Council president Arthur Moses says better consultation is needed for fair and effective legislation and echoed DIGI’s concern as to why the proposed law wasn’t targeting online hate speech that incites violence.

“As we know, laws formulated as a knee-jerk reaction to a tragic event do not necessarily equate to good legislation and can have myriad unintended consequences,” Moses says.

“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. It could also lead to censorship of the media, which would be unacceptable.”

Moses also took issue with fines based on tech companies’ annual turnover, saying it could lead to difficulties with sentencing, with companies punished by reference to their size rather than the seriousness of their breach.

“This would be bad for certainty and bad for business,” Moses says.

“It could have a chilling effect on businesses investing in Australia. 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,” Mr Moses said.

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