Notice issued by eSafety Commissioner in relation to a hosting service—presumptions
474.36 Notice issued by eSafety Commissioner in relation to a hosting service—presumptions
The eSafety Commissioner may issue a written notice stating that, at the time the notice was issued:
specified material was hosted on a specified hosting service; and
the specified material was abhorrent violent material.
The eSafety Commissioner must not issue a notice under subsection (1) unless the eSafety Commissioner is satisfied on reasonable grounds that, at the time the notice was issued:
the specified material was hosted on the specified hosting service; and
the specified material was abhorrent violent material.
As soon as practicable after issuing a notice under subsection (1), the eSafety Commissioner must give a copy of the notice to the person who provides the hosting service concerned.
The eSafety Commissioner is not required to observe any requirements of procedural fairness in relation to the issue of a notice under subsection (1).
Presumptions
If:
a notice under subsection (1) is issued in relation to a hosting service provided by a person; and
in a prosecution of the person for an offence against subsection 474.34(5), it is proven that the material specified in the notice was hosted on the hosting service at the time the notice was issued;
then, in that prosecution, it must be presumed that the person was reckless as to whether the specified material was hosted on the hosting service at the time the notice was issued, unless the person adduces or points to evidence that suggests a reasonable possibility that the person was not reckless as to whether specified material was hosted on the hosting service at the time the notice was issued.
If a notice under subsection (1) is issued in relation to a hosting service provided by a person, then, in a prosecution of the person for an offence against subsection 474.34(5), it must be presumed that, at the time the notice was issued, the person was reckless as to whether the material specified in the notice was abhorrent violent material, unless the person adduces or points to evidence that suggests a reasonable possibility that, at the time the notice was issued, the person was not reckless as to whether the specified material was abhorrent violent material.
Other evidentiary matters
A document purporting to be a notice issued under subsection (1) must, unless the contrary is established, be taken to be such a notice and to have been properly issued.
The eSafety Commissioner may certify that a document is a copy of a notice issued under subsection (1).
Subsections (5), (6) and (7) apply to the certified copy as if it were the original.
Application
This section extends to matters and things outside Australia.
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