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Failing as a Content Service Provided to Remove Abhorrent Violent Material

Failing as a content service provider to remove abhorrent violent material is an offence under section 474.34(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 3 years in prison and/or 10,000 penalty units for an individual, or whichever is higher of 50,000 penalty units or 10% of annual turnover for corporations.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You provided a content service
  2. Your service could be used to access material
  3. The material was abhorrent violent material, and
  4. You did not ensure the expeditious removal of the material from your content service.

‘Abhorrent violent conduct’ includes terrorism, murder, attempted murder, torture, rape and kidnapping.

A ‘content service’ includes:

  1. A broadcasting service
  2. An on-line information service, such as a dial-up information service
  3. An on-line entertainment service, such as a video-on-demand service, or interactive computer game service, or
  4. An education service provided by a State or Territory government.

It is immaterial whether the content service was provided within or outside Australia, but the material must have been reasonably capable of being accessed within Australia.

You are not guilty of the offence if you establish, on the balance of probabilities, that accessing the material:

  1. Was necessary for enforcing the law of, or monitoring compliance with, the law of:(a) The Commonwealth
    (b) A State or Territory,
    (c) A foreign country, or
    (d) Part of a foreign country
  1. Was for the purpose of proceedings in a court or tribunal
  2. Was necessary for, or for assistance in, conducting scientific, medical, academic or historical research, and reasonable in the circumstances for that purpose
  3. Was for a news report, or current affairs report, that was in the public interest, and was made by a person working in a professional capacity as a journalist
  4. Was in connection with the performance by a public official of his or her duties and functions, and was reasonable in the circumstances for that purpose
    Was in connection with assisting a public official in the performance of his or her duties or functions, and was reasonable in the circumstances for that purpose
  5. Was for the purpose of advocating the lawful procurement of a change to any matter.

Established by law, policy or practice in:

(a) The Commonwealth
(b) A State or Territory,
(c) A foreign country, or
(d) Part of a foreign country, or

  1. Related to the development, performance, exhibition or distribution, in good faith, of artistic work.

You are also not guilty if your conduct was protected by the constitutional doctrine of implied freedom of political communication.

Duress is a defence to the charge.

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