Industry warns of negative tech, cultural consequences as social media violent material bill passes

The Federal Government’s hastily proposed bill to penalise and imprison companies and individuals distributing abhorrent and violent material across social media channels has passed the House of Representatives just a day after sailing through the Senate.

But the bill’s adoption is raising alarm bells across industry and technology groups, with several claiming the laws could have unintended, negative consequences on technology innovation, jobs, public interests and a potentially ‘chilling’ effect on business.  

The Government’s Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 was introduced just weeks after the Christchurch terrorism attacks on 15 March, which were livestreamed on Facebook by the perpetrator for 17 minutes. The footage was reshared globally and across a number of social platforms.

The distressing footage and its distribution led New Zealand Prime Minister, Jacinta Adern, to call on social platforms to take responsibility for violent and abhorrent content being broadcast on their platforms.

The criticisms tie into a much wider and growing debate about the need for tougher regulation around digital companies such as Google and Facebook, and come as the Federal Government undertakes its own inquiry into the power and might of these digital platform players.

As stated in the Australian Government’s memorandum, the latest bill is aimed at updating Australia’s Criminal Code Act 1995 to ensure persons and organisations involved in broadcasting and distributing violent content, including content and ISP services, are held to account.

Violent material as defined in the bill includes audio and visual material that shows two or more people engaged in abhorrent violent conduct, a person who has aided, abetted, counselled or procured such conduct in any way, and a person attempting to engage in such conduct. Violent conduct includes terrorist acts, murder and attempted murder, torture, rape or kidnapping.

The law makes plain ISPs and social platforms will now be criminally accountable for such material not being removed from their platforms. All are expected to refer details of the existence of such material to the Australian Federal Police “within a reasonable time”. The law also states the conditions apply regardless of whether content or hosted services reside in or outside of Australia.

The ‘expeditious’ removal of such content would take into account the type and volume of the abhorrent violent material, or the capabilities of and resourcing available to the provider may be relevant factors, the bill stated.

Newly introduced penalties include up to 10 per cent of a company’s annual turnover or imprisonment for up to three years, issued by a strengthened eSafety Commissioner. The AFP also has the power to enact punishable fines of up to $168,000 for an individual or $840,000 for a corporation.

A last-minute request in the House of Representatives by Greens deputy leader, Adam Bandt, to have a Parliamentary Joint Committee on Intelligence and Security inquiry into the bill by no later than 1 August 2019 was defeated today, smoothing the way for the bill being accepted by midday.

Industry outcry

While there aren’t many who’d disagree violent and terrorist material shouldn’t be on social sites, there are growing concerns this hastily constructed bill could negatively impact business and society.

The Law Council of Australia, for one, suggested the livestream laws could have “serious unintended consequences and a chilling effect on businesses.” Law Council president, Arthur Moses, agreed steps should be taken to ensure social media is not weaponised to promote hatred and violence but said proper consultation must occur to ensure fair and effective legislation is introduced.

“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,” he stated. “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 said making social media companies and their executives criminally liable for the livestreaming of criminal content required careful consideration.

“Furthermore, the proposed legislation should not absolve government taking steps to prevent crimes being livestreamed,” he 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.

Moses said imposing penalties on companies based on their annual turnover rather than by reference to a maximum set of penalties was another problematic decision.

“This would be bad for certainty and bad for business. 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,” he said.

Managing director of the Digital Industry Group Inc (DIGI), Sunita Bose, was another to criticise the bill’s passing without meaningful consultation. She claimed it did nothing to address hate speech – the underlying motivation for the Christchurch attacks.

“In fact, the only legal definition of hate speech we have under Australian law does not include religious and gender-based speech,” she said. “Let’s be clear: No one wants abhorrent content on their websites, and DIGI members work to take this down as quickly as possible. But with the vast volumes of content uploaded to the Internet every second, this is a highly complex problem that requires discussion with the technology industry, legal experts, the media and civil society to get the solution right. That didn’t happen this week.    

“This creates a strict Internet intermediary liability regime that is out of step with the notice-and-takedown regimes in Europe and the United States, and is therefore bad for Internet users as it encourages companies to proactively surveil the vast volumes of user-generated content being uploaded at any given minute.”  

Several also believe the bill is another instance of unthought-through legislation that’s detrimental to the tech sector and innovation. Bose, for example, said the ‘pass it now, change it later’ approach to legislation created immediate uncertainty for Australia’s technology industry, and noted the recent encryption laws as a previous instance of such decision-making.  

StartupAUS issued its own equally critical response, with CEO, Alex McCauley, warning of a growing trend “towards jumping into anti-tech legislation in a knee-jerk fashion”.  

“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,” he said.  

“In the years ahead, there are many thorny regulatory questions emerging technologies are going to throw up. We need to be thoughtful and deliberate about how we approach those issues. 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.  

“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.”  

McCauley compared the latest Sharing of Violent and Abhorrent Media Bill to the Assistance and Access Bill in scope. The controversial AA Act for encryption was passed last December.

“With the ubiquity of businesses and citizens with an online presence, this has potential applications and misapplications right across our society,” he claimed. “A robust policy development process is critical here to make sure the law we pass will actually work.”

The Australian Information Industry Association (AIIA) CEO, Ron Gauci, highlighted several concerns, the first being the broad criminal implications the bill exposes executives and consumers to. The second is the short space of time with which the bill was proposed and passed. The third is the lack of clear definition around the processes organisations must go through in order to comply with the bill’s criteria and then respond to any potential breach.

“This was rushed through without consultation and consideration,” he told CMO. “We saw the same situation in December [with the encryption bill], although the consequences of this latest bill are far more significant and the process more rapid.

“We are in react model as distinct from dealing with this in a responsible manner. We see it as critical that due consultation is given to the legislation so that it’s well defined.”

Gauci saw understanding the legislation and what it requires from director to comply as a hugely onerous process. For AIIA members storing data, for instance, taking steps around the data stored in your datacentre is a complicated task.

He also saw potential fallout in terms of jobs and innovation. “Whenever risk is imposed on business, particularly SMB, you run the risk of directors and entrepreneurs not going into new fields, and that impacts the jobs available,” he said.

Having said that, the AIIA is against the need for legislation, Gauci said. “It’s about the implications of the process as distinct from the intent of the legislation,” he said.  

“The legislation could be quite effective if it’s managed in the right way.”

Atlassian co-founder, Scott Farquhar, was another against the new bill, stating in a series of posts on Twitter as flagged by ABC News that he had big concerns it could costs jobs.

“I’m calling on the government to send this legislation to a committee for due diligence and consult properly with industry. In its blind rush to legislate, the government is creating confusion and threatening jobs,” he stated on twitter. “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.”

Facebook’s position

In its own response to the Christchurch terror attacks and the livestreamed footage on 29 March, Facebook chief operating officer, Sheryl Sandberg, said the company was taking three steps: Strengthening rules for using Facebook Live; better addressing hate on its platforms through its Community Standards; and further supporting the New Zealand community.

Sandberg said Facebook has taken down the terrorist’s Facebook and Instagram accounts, removed the video of the attack, and worked to identify and eliminate at least 900 instances of the shared footage on its platforms. For many, however, the removal of the material wasn’t done nearly fast enough.

“We are deeply committed to strengthening our policies, improving our technology and working with experts to keep Facebook safe. We must all stand united against hate and work together to fight it wherever and whenever it occurs,” Sandberg said in her open letter.

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