The federal government passed its controversial social media laws this afternoon through its Sharing of Violent and Abhorrent Media Bill. The new laws establish unprecedented criminal penalties for internet companies and their executives if platforms fail to quickly remove abhorrent content.

The laws are part of the political response to the Christchurch killings, where a gunman live streamed the massacre on Facebook and social media companies struggled to remove the footage.

The technology industry and legal community have warned they were not properly consulted on the new laws, branding them a rushed, knee-jerk reaction.

The legislation was drafted and passed through the senate in less than a month despite previous warnings from industry and legal groups. Today, Attorney General Christian Porter hailed the new laws as a “world first in terms of legislating the conduct of social media and online platforms”. Under the new laws, social media companis can face fines of up to 10 per cent of a their annual turnover and potential prison sentences for company executives who fail to remove “abhorrent violent material” from their platforms.

Lack of consultation

Alex McCauley, CEO at StartUp Australia said, “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.”

McCauley said in the years to come there will be numerous “thorny” regulatory questions that emerging technologies are going 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.

Alex McCauley, CEO, StartUp Australia

“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,” he said.

The Law Council of Australia expressed its concern earlier in the week with Arthur Moses SC, President of the Law Council saying, “I am concerned that this legislation is being thought up on the run without any proper consultation with the companies that will be bound by it and lawyers who will be asked to advise on it.

“Often bad or ineffective policy is made when rushed through Parliament without proper consultation.”

McCauley called the bill broad in scope, and with the ubiquity of businesses and citizens with an online presence, has potential applications and misapplications right across our society.

He said, “We call on the government to learn from the mishandling of the AA Act and send the legislation to the Parliamentary Joint Committee on Intelligence and Security for review while conducting a meaningful consultation with stakeholders. A robust policy development process is critical here to make sure the law we pass will actually work.”

Platforms weigh in

DIGI, an industry group representing Facebook, Google, Twitter and Amazon, amongst others, shares concerns about the speed of implementation and says the new laws show a fundamental misunderstanding of the complexity of the challenge of removing content.

Sunita Bose, Managing Director of Digital Industry Group Inc (DIGI).

“This law, which was conceived and passed in five days without any meaningful consultation, does nothing to address hate speech, which was the fundamental motivation for the tragic Christchurch terrorist attacks,” said DIGI managing director, Sunita Bose, in an email. “In fact, the only legal definition of hate speech we have under Australian law does not include religious and gender-based speech.”

“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.

Bose also said the new laws bore similarities to Australia’s recent, also controversial, encryption laws.

“This ‘pass it now, change it later’ approach to legislation, such as we saw with the encryption law, creates immediate uncertainty for Australia’s technology industry. It threatens employees within any company that has user-generated content to be potentially jailed for the misuse of their services — even if they are unaware of it. This is not how legislation should be made in a democracy like Australia.

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