The Coalition government's new social media laws could have a significant impact on the way in which platforms like Facebook, Twitter, and YouTube operate in Australia.
The Criminal Code Amendment Bill is designed to prevent social media platforms from being "weaponised" after the gunman behind the Christchurch attack used Facebook's live-streaming service to broadcast himself killing 50 people.
But there are serious concerns that the new legislation has been rushed, and that it will have unintended consequences on the Australian tech industry.
The proposed legislation was only formally announced by Prime Minister Scott Morrison on Saturday, and the Digital Industry Group Inc (DIGI), which represents Facebook, Google and Twitter, received the draft legislation on Tuesday. The Bill passed the Senate on Wednesday with no objection from the opposition and it was approved by Parliament on Thursday. Several Labor MPs complained about the legislation, including Bill Shorten, but approved it anyway.
Under the new legislation, people working for content-sharing companies can be fined or jailed for three years for hosting or streaming what the government is calling "abhorrent violent material". That includes terrorist attacks, murders or rapes.
Social media giants can also incur fines of up to 10% of their annual turnover if they fail to remove violent content "expeditiously". It is unclear what "expeditiously" means in regards to an actual timeline.
In response to the passing of the bill, Sunita Bose, director of DIGI, said in a statement:
This law, which was conceived and passed in five days without any meaningful consultation, does nothing to address hate speech, which was the fundamental motivation for the tragic Christchurch terrorist attacks. In fact, the only legal definition of hate speech we have under Australian law does not include religious and gender-based speech.
Let’s be clear: no one wants abhorrent content on their websites, and DIGI members work to take this down as quickly as possible. But with the vast volumes of content uploaded to the internet every second, this is a highly complex problem that requires discussion with the technology industry, legal experts, the media and civil society to get the solution right — that didn’t happen this week.
This creates a strict internet intermediary liability regime that is out of step with the notice-and-takedown regimes in Europe and the United States, and is therefore bad for internet users as it encourages companies to proactively surveil the vast volumes of user-generated content being uploaded at any given minute.
This ‘pass it now, change it later’ approach to legislation, such as we saw with the encryption law, creates immediate uncertainty for Australia’s technology industry. It threatens employees within any company that has user-generated content to be potentially jailed for the misuse of their services — even if they are unaware of it. This is not how legislation should be made in a democracy like Australia.
Whichever party forms government must commit to taking this law to urgent review by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) as soon as Parliament reconvenes.
Scott Farquhar, the cofounder of software giant Atlassian, Australia's biggest tech company, raised his concerns about the legislation on Twitter.
"As of today, any person working at any company (globally) that allows users to upload videos or images could go to jail," he wrote. "Guilty until proven innocent. They need to violate users privacy to police this. Whistleblowers highlighting human rights abuses aren't excluded."
On Wednesday, Farquhar said: "Let me be clear, no-one wants this material on the internet. But the legislation is flawed and will unnecessarily cost jobs and damage our tech industry.
Farquhar pointed out that as the legislation is currently written, it applies to "news sites, social media sites, dating sites, job sites — anywhere user content could be created."
He also said it lacks details, saying it's not clear "who" in a company that breached the rules would go to jail.
Sad to report the poor, rushed legislation covering "Streamed Terrorism" passed both houses just now - despite objections from bodies as diverse as @newscorpaus NewsCorp, the tech industry & @thelawcouncil (3 who rarely agree!) ???? Another sad day for Aus tech & govt. #auspol
— Mike Cannon-Brookes ???????????????? (@mcannonbrookes) April 4, 2019
Alex McCauley, CEO of StartupAUS, said: "The haste and lack of consultation with which this legislation has been created is a real concern," adding that there's a trend towards jumping into anti tech legislation in a knee jerk fashion."
McCauley added: "This legislation was drafted and rushed through the Senate in less than three weeks. That's not enough time to get it right. There has been virtually no consultation, which has led to a poor piece of legislation. Nowhere is this clearer than the fact that the proposed law doesn't include a public interest exemption — something that is deeply concerning.
"In the years ahead, there are many thorny regulatory questions that emerging technologies are going to throw up. We need to be thoughtful and deliberate about how we approach those issues. That means engaging in consultation with industry, upskilling lawmakers on existing and emerging technologies, and doing some forward planning about what's coming and how we can sensibly respond. If we rush it, we'll get it wrong. We then run the risk of hurting a promising Australian industry while simultaneously failing to protect the public adequately."
The Morrison government also wanted to change Australia's encryption laws so that law enforcement agencies could more easily access communications on platforms like WhatsApp and iMessage.