Turnover-based fines for social media companies sets dangerous precedent, says Law Council

"Often bad or ineffective policy is made when rushed through Parliament without proper consultation"

Turnover-based fines for social media companies sets dangerous precedent, says Law Council

The nation’s top legal body has voiced its concern over the Morrison government’s plan to rush laws that could see bosses of social networks face jail time and their companies pay huge fines for failing to quickly remove images and videos of violent crimes.

While the Law Council of Australia agrees that there is no place for violent or criminal content on social media platforms, saying that the tools “should not be weaponised to promote hatred and violence,” it said that enacting laws should be a measured process.

“I am concerned that this legislation is being thought up on the run without any proper consultation with the companies that will be bound by it and lawyers who will be asked to advise on it. Often bad or ineffective policy is made when rushed through Parliament without proper consultation,” said Arthur Moses SC, Law Council president.

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Tough new laws                                          
On Saturday, the government announced a plan to introduce tough new laws against weaponising social media platforms. Called the Criminal Code Amendment (Unlawful Showing of Abhorrent Violent Material) Bill 2019, the proposed law imposes penalties of up to 10% of a company’s turnover if it fails to remove violating material in a timely manner. Leaders of offending companies can also be jailed up to three years for violations of the measure.

The plan comes in the wake of the Christchurch terrorist attack, which was live-streamed by the suspect on Facebook and quickly spread by others over other social networks.

“Big social media companies have a responsibility to take every possible action to ensure their technology products are not exploited by murderous terrorists,” said Prime Minister Scott Morrison. “It should not just be a matter of just doing the right thing. It should be the law. And that is what my Government will be doing next week to force social media companies to get their act together and work with law enforcement and intelligence agencies to defuse the threat their technologies can present to the safety of Australians.”

“This is about keeping Australians safe by forcing social media companies to step up and do what the community expects of them to stop terrorists and criminals spreading their hate,” he said. “A new taskforce bringing Government and social media companies together will also ensure we are all working together to deny terrorists the opportunity to use social media as part of their hatred and violence.”

Morrison said that the responses will be a model approach that Australia can contribute to the G20, with the hope that other members also push for more responsibility and accountability from social media companies.

Moses highlights that it is currently unclear whether fines proposed in the bill will be based on annual turnover in Australia or globally. If it’s the latter, it may be unconstitutional, he said.

“Irrespective of this, imposing penalties on companies by reference to their annual turnover rather than by reference to a maximum set of penalties is problematic,” Moses said.

“It will lead to difficulties with sentencing and mean companies will be punished by reference to their size rather than the seriousness of their breach. That is bad for certainty and bad for business. Such an approach to penalties, if used as a precedent for other areas of government regulation, could have a chilling effect on businesses investing in Australia or providing their services in this country,” he said.

The Law Council president also said that any measure to combat weaponising of social media should be sensible and not make unreasonable demands of social media companies.

“A machine cannot easily pick up the difference between a computer game and online live streaming. The algorithms may need time to be developed, assuming they can be,” he said. “Parliament making social media companies and their executives criminally liable for the live streaming of criminal content is a serious step which needs to be through carefully including what defences will be available.”

He said that the government should not be absolved of itself fighting crimes being live streamed.

“Law enforcement agencies must work with social media companies to develop protocols to share intelligence information to assist in detecting live streaming that is broadcasting violent or criminal content,” he said.

“Bad and ineffective legislation is enacted when it is a knee-jerk emotional reaction to a tragic event. The job of our parliamentarians is to approach their task in a mature and considered manner so effective and valid laws are enacted,” Moses said.

“Parliamentarians should not rush this through but rather use the time to consult so we get this right. The Law Council will carefully consider the draft legislation when it is provided with a copy and will work with the Parliament to ensure the proposed legislation is able to be complied with, proportionate, fit for purpose, and appropriately calibrated.”


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