Tech companies and the Law Council of Australia have pushed back on Scott Morrison’s new social media laws, saying they are being rushed through Parliament without proper consultation or consideration of consequences.

Scott Morrison proposed the new laws in the wake of the Christchurch killings, where a gunman live streamed the murder of 50 people. Social media platforms were criticised for their response to the events, including failing to to remove footage immediately.

Last week the Prime Minister and senior ministers met with social media companies demanding they introduce steps to curve their exploitation by terrorists. Unsatisfied with their response, Morrison and the Government has pushed ahead with what is regarded as unprecedented legislation, forcing social media companies “to get their act together”.

“Big social media companies have a responsibility to take every possible action to ensure their technology products are not exploited by murderous terrorists,” the Prime Minister said.

“This is about keeping Australians safe by forcing social media companies to step up and do what the community expects of them to stop terrorists and criminals spreading their hate.

“A new taskforce bringing Government and social media companies together will also ensure we are all working together to deny terrorists the opportunity to use social media as part of their hatred and violence.

Attorney General Christian Porter says the new laws, introduced through the Criminal Code Amendment (Unlawful Showing of Abhorrent Violent Material) Bill 2019 will include penalties of up to 10 per cent of a company’s annual turnover – the Government has not clarified if this is local or global turnover – and potential prison sentences for social media company executives who fail to remove “abhorrent violent material” from their platforms.  

Industry concerns

The technology industry is saying it has not been properly consulted on the legislation and the severity of the new laws is a potential threat to democracy.

DIGI, an industry group representing several tech giants including the major social media companies that the new laws will affect, says it is concerned the laws are being rushed through Parliament.

“DIGI members share the Government’s commitment to keeping Australians safe and have been working with governments, law enforcement, and intelligence agencies to ensure terrorism and other illegal activity committed offline are not amplified through their platforms,” said Sunita Bose, Managing Director of DIGI, in an email.

“It is therefore concerning that this legislation has been announced — with the Government planning to rush it through Parliament in just three days — without any meaningful consultation with the digital industry, security, legal and technical experts, the intelligence community, the media, and civil society; and, ahead of its own first Government Taskforce meeting to address the issue on Friday.”

DIGI says it shares the concerns about people’s safety online but the harsh penalties are an inappropriate and ineffective deterrent.

“Announcing measures such as jailing staff at social media companies is inappropriate for a democracy such as Australia, and does not help the debate or solve the issue,” Bose said.

Unintended consequences

The Law Council of Australia has taken issue with the proposed penalties for failing to remove violent material expeditiously, and also urged the Government to continue to consult with stakeholders.

“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,” said Arthur Moses SC, President of the Law Council.

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

The proposed financial penalties – 10 per cent of annual turnover – is also problematic, according to Moses.

“It will lead to difficulties with sentencing and mean companies will be punished by reference to their size rather than the seriousness of their breach. That is bad for certainty and bad for business.”

If such penalties are introduced and subsequently imposed in other areas of regulation the effect could be “chilling” on businesses investing in Australia or providing services in Australia, according to the Law Council.

Moses also questions whether the technical capabilities to automatically identify abhorrent content during live streams is technically possible.

“Bad and ineffective legislation is enacted when it is a knee jerk emotional reaction to a tragic event. The job of our parliamentarians is to approach their task in a mature and considered manner so effective and valid laws are enacted.

“Parliamentarians should not rush this through but rather use the time to consult so we get this right.”

Industry raised similar concerns about the hurried introduction of Australia’s controversial encryption laws late last year, also introduced in the name of combatting terrorism.

Labor has since vowed to reform the encryption laws, branding them “terrible”, and signalled more consultation with stakeholders in necessary.

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