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Lawyers admonish government’s ‘knee jerk’ social media regulation plans

The government’s plan to crack down on Facebook in the wake of the Christchurch terror attack is a “knee jerk emotional reaction”, according to a statement issued by the president of the Law Council, Arthur Moses.

New laws proposed by the government would fine social media companies and potentially send its executives to jail over live streamed crimes.

“Every rational person agrees that violent or criminal content must not be allowed to be broadcast by individuals using social media platforms,” said Moses, the president of the Australian legal profession’s representative body.

“However, 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.”

Under the proposed legislation, social media platforms could be fined up to 10% of their annual turnover and executives who fail to remove violent material could face up to three years in prison.

“These companies have a social responsibility and they have clearly failed to meet that responsibility in their response to Christchurch,” said Attorney-General Christian Porter.

“The Morrison government will force action from these companies through these new laws.”

However, Moses expressed concern about these penalties, particularly given the uncertainty around whether fines would be based on annual turnover of the company registered in Australia, or global annual turnover.

“Any penalty by reference to their global annual turnover would be potentially 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.

“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.”

Prime Minister Scott Morrison, however, claimed that the step to legislate Facebook and its ilk was a necessary one.

“Big social media companies have a responsibility to take every possible action to ensure their technology products are not exploited by murderous terrorists,” the Prime Minister said.

“It should not just be a matter of just doing the right thing. It should be the law.”

Prime Minister Scott Morrison

But Moses argued that social media giants like Facebook should not be held to an unreasonable standard.

“We also need to be sensible when working on these offences and not demand of social media companies what they cannot reasonably be expected to do,” he stated.

“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.”

However, Facebook CEO Mark Zuckerberg agreed that platforms like Facebook should face more regulation.

“From what I’ve learned, I believe we need new regulation in four areas: harmful content, election integrity, privacy and data portability,” Zuckerberg said.

“Lawmakers often tell me we have too much power over speech, and frankly I agree.

“Internet companies should be accountable for enforcing standards on harmful content. It’s impossible to remove all harmful content from the internet, but when people use dozens of different sharing services — all with their own policies and processes — we need a more standardized approach.”

Mark Zuckerberg

Sheryl Sandberg, Facebook’s COO, issued a statement of her own over the weekend, adding that Facebook is taking action by: exploring restrictions on who can live stream based on factors like prior violations of its Community Standards, investing in research to build technology that can identify edited versions of violent videos and images, and using its AI tools to identify and remove hate groups from Facebook.

“People with bad intentions will always try to get around our security measures,” she said.

“That’s why we must work to continually stay ahead.”

Sandberg said that groups such as the Lads Society, the United Patriots Front, the Antipodean Resistance, and National Front New Zealand will be banned from Facebook.

But Moses believes that, in addition to Facebook’s actions, the government itself is responsible.

“This proposed legislation should not absolve government itself taking steps to prevent crimes being live streamed,” he said.

“The job of our parliamentarians is to approach their task in a mature and considered manner so effective and valid laws are enacted.

“Parliamentarians should not rush this through but rather use the time to consult so we get this right.”

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