Criminal Law

By Anna Bennett

19.07.19

The law is an ass – when it is badly drafted and rushed through parliament: a critique of the Criminal Code Amendment (Sharing of Abhorrent Violent Material) legislation.

Across the world, technology continues to advance at an extraordinary rate. Unfortunately, however, technological advancement is not an unalloyed, positive force. Whilst, advancements in technology have at least some degree of indisputable benefit, technology also assists in the execution and promotion of crime. For example, technology enabled the perpetrator of the Christchurch mosque shootings, which occurred on 15 March 2019 (“the Christchurch Shootings”), to live stream his massacre on Facebook, for the world to see.

The law has long struggled to keep up with, and regulate, the rapidly changing environment technology continues to manifest. In attempting to keep pace with such advancements, there is an increasing risk that problematic or flawed legislation may be passed in the flurry.

In the wake of the Christchurch Shootings, Australia enacted the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019. These laws require social media platforms to remove abhorrent violent material expeditiously. A failure to do so now constitutes a criminal offence, pursuant to Section 474.34 of the Criminal Code Act 1995 (Cth). An offence under this new Section 474.34 of the Criminal Code Act 1995 (Cth) committed by an individual, is punishable by up to 3 years imprisonment or a fine of up to $2,100,000.00, or both. An offence under Section 474.34 committed by a body corporate is punishable by a fine of up to $10,500,000.00 or up to 10% of the annual turnover of that body corporate in a 12-month period (whichever is the greater amount).

The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 has attracted much criticism from stakeholders of social media platforms who may face penalties under the new offences created by the legislation, as well as from the broader legal community. One of the many criticisms of the Act is that it is poorly drafted. One example of the purported poor drafting is the lack of indication, let alone definition, of what constitutes “expeditious” removal of material. Whether or not removal of the abhorrent violent material is “expeditious” is a fundamental element that must be satisfied in order to secure a conviction under Section 474.34 of the Criminal Code Act 1995 (Cth). Accordingly, the haphazard drafting of the legislation significantly undermines its efficacy in practice as it creates enormous ambiguity. Special Representatives of the United Nations Human Rights Council have gone so far as to call for the withdrawal of the legislation to allow additional consultation time to remedy the drafting issues. Notably, the Special Representatives of the United Nations Human Rights Council identified the potential for the legislation to interfere with Australia’s human rights obligations under Article 19 of the International Covenant on Civil and Political Rights. These are, by no stretch of the imagination, minor criticisms.

Whether by consequence of these abovementioned issues, or for unrelated reasons, I am not aware of any case where an individual or body corporate has been charged under Section 747.34 of the Criminal Code Act 1995 (Cth). This does not, however, equate to the importance of the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 having decreased. In fact, it is likely that its importance will continue to rise.

On 14 July 2019, a seventeen-year-old girl named Bianca Devins was allegedly murdered in Utica, New York, in the United States of America. Miss Devins was an Instagram personality, with reports suggesting that she had a following of more than 70,000 users at the time of her death. Her Instagram following is now in excess of 155,000 users. Miss Devins’ boyfriend is alleged to have brutally murdered her and subsequently to have uploaded horrific photos of her deceased and bloodied body on Instagram, 4chan and the gaming site known as “Discord”. Instagram, in particular, has come under fire for failing to remove the graphic posts for many hours, despite numerous notifications in relation to them.  As pertinently put by Pamela Rutledge, Director of the Media Psychology Research Center, “flaunting crimes is not new behaviour. Social media has just given those behaviours a new forum with greater amplification”. Miss Devins’ death and the graphic media posts of her deceased body, have ignited outrage in relation to the proliferation of violent content on social media forums.

It is apparent from such events, that the law needs to continue to develop in parallel to the changing environment manifested by technology. However, as displayed by the hurried passing of the problematic Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019, the law must be mindful to remain meticulous in its legislative consideration and drafting, as to not fall victim to legislation becoming a tool of political rhetoric.