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Failing as a Service Provider to Report Abhorrent Violent Material to Police

Failing as a service provider to report abhorrent violent material to police is an offence under section 474.33 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 800 penalty units.

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

  1. You were an internet service provider, or provided a content or hosting service
  2. You were aware the service could be used to access particular material
  3. You had reasonable grounds to believe the particular material accessed was in the form of streamed or recorded abhorrent violent conduct that occurred, or was occurring, in Australia, and
  4. You did not refer the details of the material to the Australian Federal Police, within a reasonable time after becoming aware of its existence.

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

An ‘internet service provider’ is anyone who supplies, or proposes to supply an internet carriage service to the public.

A ‘carriage service’ is:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions.

An ‘internet carriage service’ is a listed carriage service that enables end-users to access the internet.

A ‘listed carriage service’ is one that is between:

  1. A point in Australia and one or more other points in Australia
  2. A point and one or more other points, where one point is in Australia and at least one of the other points is or are outside Australia, or
  3. A point and one or more other points, where the first point is outside Australia, and at least one of the other points is in Australia.

A ‘point’ is a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.

A ‘point in Australia’ means one that is:

  1. In the atmosphere
  2. In or below the stratosphere, and
  3. Above Australia.

A ‘point outside Australia’ includes one that is:

  1. On a satellite, and
  2. Above the stratosphere.

A ‘content service’ includes any on-line service, including but not limited to:

  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 on-demand video or interactive gaming service, and
  4. An on-line education service.

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 licensed commercial television broadcasting service
  • A licensed subscription television broadcasting service
  • A subscription television narrowcasting service, or
  • A television broadcasting service provided by the ABC or SBS.

It is immaterial whether the content or service was provided within or outside Australia.

You are not guilty of the offence if you establish to the court, on the balance of probabilities, that you believed the details of the material were already known to the Australian Federal Police.

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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