No one has been convicted or fined under laws passed soon after the Christchurch shootings aimed at preventing depictions of terror attacks being distributed online, authorities admit, but they say the threat of prosecution has helped reduce such content.
In the wake of the massacre of 50 Muslim worshippers in New Zealand, which was live-streamed on Facebook and shared across the internet in March 2019, the Australian government quickly passed the Sharing of Abhorrent Violent Material (AVM) bill.
The law created new offences for content service providers and hosting services for failing to notify the Australian federal police about, or fail to expeditiously remove, videos depicting “abhorrent violent conduct”. That conduct is defined as videos depicting terrorist acts, murders, attempted murders, torture, rape or kidnapping.
Companies face fines of up to $10.5m or 10% of annual turnover for failing to remove material, while individuals face up to three years in jail and/or a $2.1m fine.
More than two years on, no fines have been issued, and no one has been prosecuted under the legislation, the attorney general’s department said in a submission to a parliamentary review of the law.
The department argued that the law was working as intended regardless.
“While AGD understands the AVM Act offences have not been prosecuted since their introduction, we note successful prosecutions are not the only metric for measuring the effectiveness of criminal offences,” the department said.
“The existence of these offences has encouraged industry to develop systems to identify and remove abhorrent violent material from their platforms.”
The eSafety commissioner, Julie Inman Grant, is empowered under the law to issue notices to service providers hosting the material and, since the law came into effect, 24 notices related to 15 pieces of content have been issued. Most were regarding versions of the Christchurch footage, but there was also footage of torture and murders.
One was the murder of two people by a terrorist in Halle, Germany. In that instance, Inman Grant said in her submission to the inquiry, distribution of the footage had been limited, and was not uploaded to Twitter, YouTube or Facebook.
She said it did not rise to the level of an “online crisis event”, which would allow her to direct internet service providers to block sites hosting it.
Inman Grant said 90% of the material had been removed when notices were issued, with people citing the threat of the fines or criminal penalties as the reason.
“In several matters, we have been told by services (or have learned through statements made elsewhere) that the risk of criminal prosecution was the only reason for their removal of material.”
None of the notices were issued to major platforms such as Facebook. Inman Grant said they were all responsive to informal contact when suspected violent material was identified on their sites.
But the threat of the law may also be leading to the over-censoring of images and video where it is unclear whether it meets the definition, according to tech companies.
Meta, the company formerly known as Facebook, said it was unclear what would be defined as AVM under the law, including film by a bystander, and footage where there is high public value in reporting, such as the abuse at the Don Dale Correctional Facility .
Meta mentioned an incident of a reported claim of a parent taking their child when they may not have had custody rights, and livestreaming it on Facebook. On review, Meta said the parent was “raising awareness of perceived injustices relating to their children and there was no evidence of threats or harm to the children” so it was unclear whether it would constitute a kidnapping.
The “high stakes” of the fines and criminal penalties meant it could lead to over-enforcement, Meta said, “which means there could be potentially very valuable or important content that is removed, even if it is not clearly AVM under Australian law”.
Google similarly argued kidnapping without violence was a “lower order of crime” and should be treated differently.
A consortium of tech companies and rights groups including Twitter, TikTok, Digital Rights Watch and IBM also agreed with the need to refine the kidnapping definition to be “under threat of violence” and pointed out issues with what is covered by the law, including Wikipedia hosting images of prisoner abuse at Abu Ghraib, and the Holocaust Memorial Museum hosting images of the torture, abuse and murder of Jewish people during the second world war.
The Australian federal police called for the law to be expanded to make it a crime for people to possess or disseminate abhorrent violent material.
