Sharing Of Violent Abhorrent Material Act 2019

On 6 April 2019 the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (the Act) commenced. This amended the Criminal Code Act 1995 in order to criminalize the sharing of ‘violent, abhorrent material’.

With technology and social media now allowing anyone with a mobile phone or portable camera and internet connection to livestream or record and publish material at any time, it is easy for violent material to spread around the world nearly instantaneously.

This new law has been introduced following the Christchurch Mosque Shootings on 15 March 2019, when a 28 year old Australian man live streamed on Facebook his commission of a terrorist attack which killed 51 people and injured 49.

The new law

Under this new Act the relevant material may be audio only, visual only or audio-visual material that records or streams abhorrent violent conduct engaged in by one or more persons. Further, material is violent or abhorrent if reasonable persons would regard the material as being, in all the circumstances, offensive. It is immaterial, meaning a person may still be guilty of an offence under this Act if the material has been altered.

To be guilty under this new law the material must be produced by a person or 2 or more persons each of whom is or had:

• Engaged in the abhorrent violent conduct; or
• Conspired to engage in the abhorrent violent conduct; or
• Aided, abetted, counselled or procured, or was in any way knowingly concerned in, the abhorrent violent conduct or
• Attempted to engage in the abhorrent violent conduct

This means there has to be a connection between the alleged offender and the conduct in question which resulted in violent material.

A person may be guilty of the offence whether the violent conduct is engaged in within or outside of Australia.

The law provides that a person engages in abhorrent violent conduct if the person:

• Engages in a terrorist act; or
• Murders another person; or
• Attempts to murder another person; or
• Tortures another person or
• Rapes another person; or
• Kidnaps another person

474. 474.33 (Notification obligations) also makes it an offence if a person is:

• an internet, content or hosting service provider; and
• is aware that the relevant service can be used to access particular material that the person has reasonable grounds to believe is abhorrent violent material that records or streams abhorrent violent conduct that has occurred, or is occurring in Australia; and
• the person does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material.

If found guilty under s.474.33 a person is liable to 800 penalty units ($168,000.00).

Under s 474.34 (Removing or ceasing to host) a person commits an offence if they provide a content service which is providing material that is abhorrent violent material and they do not ensure the expeditious removal of the material from the content service.

If an individual is found guilty under s 474.34 they face up to 3 years imprisonment or a fine of up to $2.1 million. If the hoster or content service provider is a body corporate, they face a fine of up to $10.5 million or 10% of the annual turnover of the body corporate during the period of 12 months ending at the end of the month in which the conduct constituting the offence occurred.

Material is considered to be ‘removed’ from a content service if the material is not accessible to any end-user using the service.

Significantly, this law does not apply to the extent (if any) that it would infringe on any constitutional doctrine of implied freedom of political communication.

Defences to sharing abhorrent violent material

There are several defences to being charged with an offence under subsection 474.34. These include (but are not limited to):

-Where the material that can be accessed using a service if the accessibility is necessary for enforcing a law of:

• The Commonwealth; or
• A State; or
• A Territory
• A foreign country; or
• A part of a foreign country

Further it is a defence where the accessibility of the material is necessary for monitoring compliance with, or investigating a contravention of a law of any of the above or is for the purposes of proceedings in a court or tribunal or both.

It is also a defence where the accessibility of the material is necessary for, or of assistance in, conducting scientific, medical, academic or historical research and the accessibility of the material is reasonable in the circumstances for the purpose of conducting that research.

For more information on the sharing violent material, social media, terrorism and the law or to speak with an expert criminal defence lawyer, call George Sten & Co Criminal Lawyers. We are available 24 hours a day on (02) 9261 8640 or 0412 423 569.