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Failing as a Hosting Service Provider to Remove Abhorrent Violent Material

Failing as a hosting service provider to remove abhorrent violent material is an offence under section 474.34(5) 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 hosting service
  2. Material was hosted on the service
  3. The hosted material was abhorrent violent material, and
  4. You did not expeditious cease to host the material.

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

A ‘hosting service’ is one that hosts stored material that has been provided on a social media service, relevant electronic service or designated internet service.

A ‘social media service’ is an electronic service:

  1. For which the sole or primary purpose is to enable online social interaction between 2 or more end-users
  2. That allows end-users to link to, or interact with, some or all of the other end-users, and
  3. That allows end-users to post material on the service.

It does not include a service for which none of the material on the service is accessible to, or delivered to, one or more end-users in Australia.

A ‘relevant electronic service’ includes:

  1. A service that enables end-users to communicate, by means of email, with other end-users
  2. An instant messaging service that enables end-users to communicate with other end-users,
  3. An SMS, MMS or chat service that enables end-users to communicate with other end-users, and
  4. A service that enables end-users to play online games with other end-users.

It does not include a service for which none of the material on the service is accessible to, or delivered to, one or more end-users in Australia.

A ‘designated internet service’ includes a service:

  1. That allows end-users to access material using an internet carriage service, or
  2. That delivers material to persons having equipment appropriate for receiving it for which the delivery is by means of an internet carriage service.

It does not include:

  1. A social media service
  2. A relevant electronic service
  3. An on-demand program service, or
  4. A service for which none of the material on the service is accessible to, or delivered to, one or more end-users in Australia.

An ‘on demand program service’ is a service:

  1. That is provided to end-users using an internet carriage service, and
  2. Is identical to a program that has been, or is being, transmitted on:
    (a) A licensed commercial television broadcasting service
    (b) A licensed subscription television broadcasting service
    (c) A subscription television narrowcasting service, or
    (d) A television broadcasting service provided by the ABC or SBS.

You are not guilty of the offence if you establish, on the balance of probabilities, that hosting 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
  5. 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
  6. 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 the hosted material was not reasonably capable of being accessed within Australia.

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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