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Section 91HAB Crimes Act 1900
Encouraging use of a Digital Platform to Deal with Child Abuse Material

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Encouraging the use of a digital platform to deal with child abuse material is an offence under section 91HAB 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:

  1. You were at least 18 years of age,
  2. You encouraged another person to use a digital platform, and
  3. You intended for the other person to use the platform to deal with child abuse material.

‘Digital platform’ encompasses all forms of online publishing, communications and broadcasting, including:

  1. Social media platforms such as Facebook, Twitter, Instagram, LinkedIn and WhatsApp,
  2. Media sharing platforms such as YouTube, Spotify and Vimeo,
  3. Messaging services linked to social media and media sharing platforms,
  4. Online knowledge platforms such as Reddit, Quora and 4chan,
  5. Streaming services such as Netflix, Amazon Prime and Stan,
  6. Online service platforms such as Uber, Airtasker and Fiverr,
  7. E-commerce platforms such as Amazon, eBay and Shopify, and
  8. Email communications.

To ‘administer’ a digital platform is to:

  1. Design, create, manage or maintain the platform, or a part or function thereof,
  2. Provide a device to host the platform, or a part or function thereof, or
  3. Facilitate the operation and use of the platform, or a part or function thereof.

To ‘deal with’ child abuse material includes to:

  1. View, upload or download it,
  2. Make it available for viewing, uploading or downloading, or
  3. 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:

  1. The private parts of a person who is, or appears to be or is implied to be, a child, or
  2. 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:

  1. The standards of morality, decency and propriety accepted by reasonable adults,
  2. The literary, artistic or educational merit (if any) of the material,
  3. The journalistic merit (if any) of the material, and/or
  4. 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:

  1. Your conduct was for public benefit and did not extend beyond it,
  2. The material received a classification for publication,
  3. The use of the material was approved by the Attorney-General for research, or
  4. 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:

  1. Enforcing or administering a law of the Commonwealth or an Australian state or territory,
  2. Monitoring compliance with, or investigating a contravention of, such a law, or
  3. The administration of justice.

The question of whether your conduct was for public benefit is one of fact and your motives for the conduct are irrelevant.

In determining whether you so encouraged the other person, it is not necessary for the prosecution to prove:

  1. The identity of the person you encouraged,
  2. That the other person actually used the platform in the prescribed manner, or
  3. That if the other person used the platform in that manner it was your encouragement that caused him or her to do so.

Duress is a defence to the charge.

If you are going to court for the offence of Encouraging use of a Digital Platform 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.

The Legislation

Section 91HAB of the Crimes Act 1900 reads as follows:

91HAB Encouraging use of a digital platform to deal with child abuse material

(1) A person is guilty of an offence if–
(a) the person is 18 or more years of age, and
(b) the person encourages another person to use a digital platform, and
(c) the person intends that other person to use the digital platform to deal with child abuse material.
Maximum penalty–imprisonment for 14 years.

(2) In determining whether a person has encouraged another person to use a digital platform with the intention of the person using it to deal with child abuse material in proceedings for an offence against this section, it is not necessary to prove–
(a) the identity of the person encouraged to use the digital platform to deal with child abuse material, or
(b) that another person in fact used the digital platform to deal with child abuse material, or
(c) if another person did in fact use the digital platform to deal with child abuse material, that it was the defendant’s encouragement that caused the person to do so.

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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