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ENHANCING ONLINE SAFETY FOR CHILDREN ACT 2015 (NO. 24, 2015) - SECT 29 Request for removal of cyber-bullying material

ENHANCING ONLINE SAFETY FOR CHILDREN ACT 2015 (NO. 24, 2015) - SECT 29

Request for removal of cyber-bullying material

Default rule

             (1)  If:

                     (a)  material is provided on a tier 1 social media service; and

                     (b)  the material was the subject of a complaint that was made under the service's complaints scheme; and

                     (c)  the material was not removed from the service within:

                              (i)  48 hours after the complaint was made; or

                             (ii)  such longer period as the Commissioner allows; and

                     (d)  a complaint has been made to the Commissioner under section 18 about the material; and

                     (e)  the Commissioner is satisfied that the material is or was cyber-bullying material targeted at an Australian child; and

                      (f)  the application for the declaration of the service as a tier 1 social media service did not contain a statement covered by subsection 23(3);

the Commissioner may give the provider of the service a written notice requesting the provider to:

                     (g)  remove the material from the service; and

                     (h)  do so within 48 hours after the notice was given to the provider.

Note:          For declaration of a tier 1 social media service, see section 23.

Special rule

             (2)  If:

                     (a)  material is provided on a tier 1 social media service; and

                     (b)  the service's terms of use contains:

                              (i)  a provision that prohibits end-users from posting cyber-bullying material on the service; or

                             (ii)  a provision that may reasonably be regarded as the equivalent of a provision covered by subparagraph (i); and

                     (c)  the Commissioner is satisfied that the material breaches that provision of the service's terms of use; and

                     (d)  the material was the subject of a complaint that was made under the service's complaints scheme; and

                     (e)  the material was not removed from the service within:

                              (i)  48 hours after the complaint was made; or

                             (ii)  such longer period as the Commissioner allows; and

                      (f)  a complaint has been made to the Commissioner under section 18 about the material; and

                     (g)  the Commissioner is satisfied that the material is or was cyber-bullying material targeted at an Australian child; and

                     (h)  the application for the declaration of the service as a tier 1 social media service contained a statement covered by subsection 23(3);

the Commissioner may give the provider of the service a written notice requesting the provider to:

                      (i)  remove the material from the service; and

                      (j)  do so within 48 hours after the notice was given to the provider.

Note 1:       For declaration of a tier 1 social media service, see section 23.

Note 2:       See also section 104 (terms of use).

Statement covered by subsection 23(3)

             (3)  If:

                     (a)  the application for the declaration of a service as a tier 1 social media service contained a statement covered by subsection 23(3); and

                     (b)  the service's terms of use does not contain:

                              (i)  a provision that prohibits end-users from posting cyber-bullying material on the service; or

                             (ii)  a provision that may reasonably be regarded as the equivalent of a provision covered by subparagraph (i);

disregard the statement.

Note:          See also section 104 (terms of use).

Cyber-bullying material

             (4)  For the purposes of paragraphs (2)(b) and (3)(b), cyber-bullying material has its ordinary meaning.