Administering a digital platform used to deal with child abuse material is an offence under section 91HAA of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You administered, or assisted in the administration of, a digital platform,
- The platform was used by another person to deal with child abuse material, and
- You intended for the platform to be used by another to deal with the material, or you were aware the platform was being used by another to deal with the material.
‘Digital platform’ encompasses all forms of online publishing, communications and broadcasting, including:
- Social media platforms such as Facebook, Twitter, Instagram, LinkedIn and WhatsApp,
- Media sharing platforms such as YouTube, Spotify and Vimeo,
- Messaging services linked to social media and media sharing platforms,
- Online knowledge platforms such as Reddit, Quora and 4chan,
- Streaming services such as Netflix, Amazon Prime and Stan,
- Online service platforms such as Uber, Airtasker and Fiverr,
- E-commerce platforms such as Amazon, eBay and Shopify, and
- Email communications.
To ‘administer’ a digital platform is to:
- Design, create, manage or maintain the platform, or a part or function thereof
- Provide a device to host the platform, or a part or function thereof, or
- Facilitate the operation and use of the platform, or a part of function thereof.
To ‘deal with’ child abuse material includes to:
- View, upload or download it
- Make it available for viewing, uploading or downloading, or
- Facilitate the viewing, uploading or downloading of it.
‘Child abuse material’ is that which depicts or describes in a way that reasonable persons would regard as being offensive:
- The private parts of a person who is, or appears to be or is implied to be, a child, or
- A person who is, or appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or engaged in or apparently engaged in a sexual pose or sexual activity, or in the presence of another who is engaged in or apparently engaged in a sexual pose or sexual activity.
‘Material’ includes any film, printed matter, data or any other thing of any kind, including any computer image or other depiction.
‘Data’ includes information in any form, as well as any program or part thereof.
‘Private parts’ is defined as the genital or anal area, whether bare or covered by underwear, or the breasts of a female, or transgender or intersex person identifying as female, whether or not the breasts are developed.
In determining whether material is offensive’, the following matters must be taken into account:
- The standards of morality, decency and propriety accepted by reasonable adults,
- The literary, artistic or educational merit (if any) of the material,
- The journalistic merit (if any) of the material, and/or
- The general character of the material.
A ‘child’ is a person under the age of 16 years.
You are not guilty if you are able to establish, on the balance of probabilities, that:
- Your conduct was for public benefit and did not extend beyond it,
- The material received a classification for publication,
- The use of the material was approved by the Attorney-General for research, or
- The material depicted you and would not be child abuse material in the absence of your image.
Conduct is for ‘public benefit’ if, and only if, it is necessary for or of assistance in:
- Enforcing or administering a law of the Commonwealth or an Australian state or territory,
- Monitoring compliance with, or investigating a contravention of, such a law, or
- The administration of justice.
The question of whether your conduct was for public benefit is one of fact and the motives for your conduct are irrelevant.
You are also not guilty if you establish that you took all reasonable steps in the circumstances to prevent other persons from using the platform to deal with child abuse material, on becoming aware the platform was being used for that purpose.
Duress is a further defence to the charge.
If you are going to court for the offence of Administering a Digital Platform used to Deal with Child Abuse Material, for expert advice and outstanding representation from Australia’s Most Awarded Criminal Defence Firm, call Sydney Criminal Lawyers® today on (02) 9261 8881 and let our experienced defence team help you.
Section 91HAA of the Crimes Act 1900 reads as follows:
91HAA Administering a digital platform used to deal with child abuse material
(1) A person (the
“administrator” ) is guilty of an offence if–
(a) the administrator administers, or assists in the administration of, a digital platform, and
(b) the digital platform is used by another person to deal with child abuse material, and
(c) the administrator–
(i) intends that the digital platform be used by another person to deal with child abuse material, or
(ii) is aware that the digital platform is being used by another person to deal with child abuse material.
Maximum penalty–imprisonment for 14 years.
(2) In proceedings for an offence against this section, it is not necessary to prove the identity of the person using the digital platform to deal with child abuse material.
(3) In this section–
“administer” , a digital platform, includes the following–
(a) design, create, manage or maintain the digital platform, part of the digital platform or a function of the digital platform,
(b) provide a device to host the digital platform, part of the digital platform or a function of the digital platform,
(c) facilitate the operation and use of the digital platform, part of the digital platform or a function of the digital platform.
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