• the extremity of the language, images or videos used; • the age and the characteristics of the individual concerned; • whether the electronic communication was anonymous; • whether the electronic communication was repeated; • the extent of circulation of the electronic communication; • whether the electronic communication is true or false; • the context in which the electronic communication appeared. Posting of intimate visual recording Section 25 (1) of the Bill provides that a person must not post or threaten to post an intimate visual recording of an individual. An individual who commits an offence by contravening the provisions of this subsection can be fined up to $20,000 or imprisonment for a term not exceeding 5 years or both and in the case of a body corporate a fine not exceeding $100,000 and for a director, chief executive officer, manager or officer in charge a fine of not exceeding $50,000 or to a term of imprisonment not exceeding 7 years or both. It is imperative to note that section 25 (3) provides that subsection (1) does not apply if the individual who is the subject of the electronic communications concerned consents to the specific post of the intimate visual recording but consent as articulated under 25 (4) must be “voluntary, expressed, and informed and does not include the consent of a child”. A further distinction must be made between consent to record and consent to post those recordings. So is Fiji an exception or have other constitutional jurisdictions considered the regulation of social media? Germany and the regulation of social media On 7 July 2017, the German Parliament passed an Act establishing an intermediary liability regime that not only requires the removal and blocking of what its criminal code defines as “clearly violating content” and “violating content” within time periods of 24 hours and 7 days respectively but also imposes penalties of up to 5 million Euros for these transgressions attracting criticism from human rights groups such as Article 19. Responding to the criticism that legislation is tantamount to the ‘privatization of censorship’, the Federal Government has argued that the States’ duty to protect victims of hate speech and criminal attacks on the internet and the obligations of platform operators to remove illegal content is consistent with international law and that legislation enforcing the respect for the law with regard to privacy, antidiscrimination and protection against crime should not be equated with censorship. The Act, which regulates the obligation of platform operators in relation to the complaints against illegal content, is premised on the argument that the same rationale must apply to social networks and that the proportionality of the fines does not hold much ground considering that fines are not applied to individual posts but only where a provider fails to properly organize a compliance system or to fulfil the reporting or supervising obligations. Fines are determined according to individual cases and subject to judicial review, which includes a proportionality test. Alluding to the fact that platform operators make serious profits, the Federal Government has also argued that fines must also consider the economic potential of the offender. While recognizing the importance of anonymity for freedom of expression, the Federal Government has argued that states have the right to put limitations on the right to anonymous expression where necessary to achieve legitimate objectives combating hate speech and holding those who post criminal content to account. They have cited the case laws from the European Court of Human Rights that has made it abundantly clear that hate speech is intolerable in a democratic society. The principle opposition to the Act from human rights groups emanates from concerns that the German Criminal Code uses broad concepts of hate speech, criminal defamation, insult and prohibitions in relation to “defamation of religion” including the deputizing of private companies to engage in censorship based on the Criminal Code. FIJI HUMAN RIGHTS & ANTI-DISCRIMINATION COMMISSION harm: ANNUAL REPORT 2018 41