Section 90 — Tort of facilitating or permitting applicable online harmful activity

(1)A person must not develop and maintain, or otherwise or administer an online location —

(a)in a manner that facilitates or permits any applicable online harmful activity to be conducted at that location; and

(b)intending for any applicable online harmful activity to be conducted or with the knowledge that any applicable online harmful activity is likely to be conducted, at that location.

(2)Whether a person has contravened subsection (1) is to be determined having regard to all or any of the following factors:

(a)the purpose for which the online location is administered or used;

(b)the profile of users who regularly access or are members or participants of the online location;

(c)the nature and content of the materials communicated at the online location;

(d)the moderation policies and practices applied at the online location;

(e)the extent to which any applicable online harmful activity is being conducted or is prevalent at the online location;

(f)any other relevant factor.Illustrations (a) X administers a website inviting users to make harassing posts about a person. X has facilitated the conduct of online harassment. (b) X administers a chat group inviting users to share intimate images of women. Although X requires users to confirm that the images are shared with consent, the profile of the users and the nature of the materials communicated in this group is such that X knows that it is likely that one or more persons will share these images without the consent of the women. X has facilitated the conduct of intimate image abuse in the chat group with the knowledge that such activity is likely to be conducted. (c) X administers a website for users to post job advertisements. Many users begin posting advertisements offering the sale of intimate images taken without consent. X is aware of those advertisements and the nature of what they offer. Even though intimate image abuse is prevalent on X’s website, X takes no steps to moderate the website. X has permitted the conduct of intimate image abuse at the website with the knowledge that such activity is likely to be conducted. (d) As in illustration (c), but X promptly takes down any offending advertisement within an hour, bans the accounts of those who post such advertisements, and issues warnings to users against posting such advertisements. X has not facilitated or permitted the conduct of intimate image abuse at the website.

(3)If a person contravenes subsection (1) (called in this section the respondent), a victim of any applicable online harmful activity conducted at the online location mentioned in that subsection may bring civil proceedings in a court against the respondent.

(4)In any civil proceedings mentioned in subsection (3), it is a defence for the respondent to prove that the respondent’s conduct was reasonable in the circumstances.