Censorship and the Net: are Australia's new Internet laws appropriate?

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Censorship and the Net: are Australia's new Internet laws appropriate?

Echo Issue Outline 1999 / 23: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.

Issue outline by J M McInerney

What they said ...
'The on-line revolution which represents so much of our future has a dark side ... It is the circulation and promotion of illegal and dangerous materials and ideas'
Clinton Porteous, commentator for The Herald Sun

'...Australian government [should] break the habit ... of trying to stop people from reading or seeing what the government thinks isn't good for them'
Frank Devine, commentator for The Australian

In May, 1999, the federal government introduced into parliament its new legislation designed to regulate and remove potentially offensive material on the Internet.
The bill is titled, Broadcasting Services Amendment (Online Services) Bill 1999.
Prior to the introduction of the bill, its foreshadowed content had been the subject of a Senate select committee inquiry which had invited submissions from all interested parties, including the information technology industry and various user bodies.
The select committee inquiry generated significant interest. The debate over how and what to regulate on the Internet has continued with the tabling of this legislation.

Background
Under the government's Broadcasting Services Amendment (Online Services) Bill 1999 material either rated X or refused classification (such as bomb-making instructions) will be banned and R-rated material will only be available to users over 18.
Complaints about content can be made to the Australian Broadcasting Authority, which will have the power to order Internet service providers to remove offending material.
Internet service providers and hosts could be fined up to $27,500 a day for not removing offensive material.
Further they are required to take 'all reasonable steps' to prevent access to prohibited content.

There are a very large number of Internet sites which deal with Australia's new Internet regulations. The vast majority of these are highly critical of the new laws.
Probably the best place to start for a brief summary of the new regulations and a favourable account of the rationale behind them is with a press release from the Minister for Communications, Information Technology and the Arts, Senator Richard Alston. Senator Alston was the minister who introduced the new legislation into Parliament on behalf of the Government.
The press release stresses the Government's 'responsibility to protect the nation's children'. It also lists in point form the main elements of the new regulations.
The press release titled, Legislation introduced to protect children online, has been reproduced on the AVS Network Web hosting site and can be found at http://avs.net.au/legis/media2.html

A much fuller account of the provisions of the new laws can be found in the Second Reading Speech given when the Broadcasting Services Amendment (Online Services) Bill 1999 was put before Parliament a second time.
This nine page speech explains in detail the elements of the new regulations and how they are expected to operate.
The speech can be found on the Department of Communications, Information Technology and The Arts site at http://www.dcita.gov.au/nsapi-text/?MIval=dca_dispdoc&pathid=%2fpolicy%2fonline2rs%2ehtml

Both the Labor Party and the Australian Democrats have voted against the new regulations in Parliament.
Prior to this the Democrats tabled a minority or dissenting report to the Senate Select Committee for Information Technologies. (The majority Select Committee report recommended the new regulations.)
The press release explains the reasons for the Democrats opposition to what were then proposed new regulations.
The Democrat's site contains a copy of the press release titled Internet censorship nightmare and written by the party's deputy leader and spokesperson for Information Technology and Attorney General, Senator Natasha Stott Despoja.
The press release can be found athttp://www.democrats.org.au/media/1999/05/0253nsd.htm

Perhaps the best place to start for an indication of opposition, outside political parties, to the new laws is with the Electronic Frontiers Australia Inc (EFA) site. EFA is a non-profit national organisation formed to protect and promote the civil liberties of users and operators of computer-based communications systems.
The EFA home page can be found at http://www.efa.org.au/

EFA have played a major role in opposing the new regulations. On July 1, 1999 (following the passage of the Broadcasting Services Amendment [Online Services] Bill through the House of Representatives) EFA issued a press release calling for the resignation of the Minister for Communications, Information Technology and The Arts, Senator Alston.
The press release, titled EFA calls for Minister's resignation, explains some of EFA's objections to the new legislation.
It can be found at http://www.efa.org.au/Publish/PR990701.html

EFA is a mine of information on the new legislation. If you go to http://www.efa.org.au/Campaigns/99.html you will find links to:
* government and parliamentary sites supplying official information on the new legislation;
* a wide range of commentary, opposing or questioning the new legislation (including submissions from a variety of groups and individuals to the Senate Select Committee for Information Technologies) and
* a collection of press releases and announcements opposing the legislation

Gilbert and Tobin, an Australian law firm, with a special interest in telecommunications, new technology and the media, has published on its website A Layman's Guide to Internet Censorship In Australia.
The article is written by Brendan Scott and dated July 7, 1999.
This analysis and comment is critical of the new legislation. The article details what Scott claims will be the regulations' probable negative impacts on Internet users and providers and their likely ineffectiveness in restricting access to pornography and other prohibited content.
Though nine pages long, the article is very clear and supplies a good deal of technical information in an accessible form.
It can be found at http://www.gtlaw.com.au/pubs/sobershock.html

Further, an interesting analysis of and comment on the new legislation can be found in M/C: A Journal of Media and Culture published on the Web and created at the University of Queensland.
M/C has published an article written by Peter Chen and titled Community without Flesh: First Thoughts on the New Broadcasting Services Amendment (Online Services) Bill 1999.
Though the language used in much of the article is quite sophisticated, its opening page contains a very clear listing of just what online content is being banned under the new regulations.
The article can be found at http://english.uq.edu.au/mc/9905/bill1.html

Finally, The Age newspaper has a collection of articles dealing with Censorship Online in its Issues99 special features section.
The index to these articles can be found at http://www.theage.com.au/special/censorship/netindex.html

Arguments against Australia's new Internet regulations
There are a number arguments offered against the Australian government's new Internet regulations.
Firstly it is claimed that the proposed regulations are heavy-handed and represent an unjustifiable intrusion into what should be private access to information or entertainment.
According to this line of argument, one of the major concerns about the current laws is that they do not simply attempt to classify Internet content, so that adult users can make informed choices.
Instead, it is claimed, the new laws actually call for the banning of some sites and materials.
This point has been made by Mark Walden, commentator for The Australian, who has argued, ' ... it's not about restricting access, which most would happily accept, but about controlling content.'
It has further been claimed that the content restrictions to be imposed on the Internet are more severe than those that currently apply to the print media.
This point has been made by Fiona Patten, a spokesperson for Eros, the adult industry body.
Ms Patten has claimed that the government's new regulations mean material legally available from newsagents would be illegal on the Internet.
Further it has been claimed that attempts should not be made to make the Internet a medium only suitable for access by children. According to this line of argument, if adults wish to access adult sites, such as those containing pornography, they should be able to do so.
This point has been made by Frank Devine, a commentator for The Australian, who has argued that governments have no right to attempt to decide what adults should or should not be able to view.
Mr Devine has stated, `...Australian government [should] break the habit ... of trying to stop people from reading or seeing what the government thinks isn't good for them.'
As an extension of this argument it is claimed that it is primarily the responsibility of parents, not lawmakers or Internet service providers, to monitor what children are accessing through the Internet.
It is argued that it is more possible, and appropriate, to tailor an Internet filter program to suit the requirements of a particular family than it is to use Internet filter programs to block whole categories of content from distribution to a mass, largely adult, audience.
This point has been made in an Australian editorial of June 3, 1999.
The editorial stated that filtering or blocking devices 'should be employed by parents, not governments.
If used in the home, such software will invest power where it belongs - in the hands of parents shielding children ...'
Another argument offered against the current legislation is that it is likely to be ineffective in removing offensive or undesirable sites.
According to this line of argument, action can be taken against those in Australia who put offensive material on the Internet, however, Australian laws have no jurisdiction in other countries and so cannot be used against overseas makers of, for example, child pornography.
It is claimed that the vast majority of potentially offensive sites originate outside Australia and so are outside the reach of Australian law.
It is also claimed that in response to the new legislation most Australian producers of pornography for the Internet are simply moving their operations off-shore.
As a way of over-coming this problem, the new legislation proposes to make Internet service providers responsible for the material that they carry, whatever its origin.
Internet industry spokespeople have claimed that this is not a reasonable expectation as there is no way that an Internet service provider can be aware of or block all potentially offensive material coming from other countries.
It has been claimed that sites' domain names often do not indicate the nature of their content. It has also been claimed that filtering devices are generally too crude to allow them to be employed to weed out potentially harmful material without limiting access to legitimate information.
What is meant by this is that most filtering devices look for a specified list of words which are likely to be found in suspect sites. The difficulty with this is said to be that these same words can be found in other sites that may be quite valuable.
This point has been by the Internet anti-censorship lobby group, Electronic Frontiers of Australia (EFA), which has claimed that while most filtering devices will remove sex sites they are also likely to block access to just about everything else, from the National Party's official homepage to all the user pages of Ozemail.
The same point has been made by Frank Devine, a commentator for The Australian, who has argued that most 'smut-hunting filters' will intrude upon or demolish 'morally spotless, even useful, sites'.
It has also been suggested that electronic means will be found of circumventing whatever blocks are put in the way of Internet pornography, in particular. One simple means suggested is that pornographic sites will rely even more heavily on images and avoid text that might be picked up by filters.
Finally, it has been claimed that the new regulations have the potential to damage the Internet industry in Australia.
It has been claimed that attempts to limit suspect material on the Internet will also impede the development of legitimate sites and so restrict the growth of the industry in Australia.
This point has been made by Mr James Steele, the director of Interactive Multimedia Pty Ltd.
Mr Steele has claimed, 'Senator Alston keeps talking about technology being available to filter Internet content without serious impact on our industry, but we don't know what it is.'
It has been claimed that in response to the new regulations multimedia publishers of legitimate material are moving out of Australia.
It has also been claimed that filtering systems may slow down the operation of Australian networks.
This point has been made by Bill McCarthy, the editor of a major United States Internet magazine.
Mr McCarthy has claimed, 'The harder you clamp down on information, the more sluggish your network performance will be.'

Arguments in favour of Australia's new Internet regulations
The first argument usually made in support of any attempt to regulate or censor the Internet is that it currently carries much material which could be judged either pornographic, excessively violent or conducive to racial intolerance. It has further been noted that the Internet also carries instructions for the home manufacture of various bombs and other weapons.
This point has been made by Herald Sun commentator Clinton Porteous who has written, `The on-line revolution which represents so much of our future has a dark side ... It is the circulation and promotion of illegal and dangerous materials and ideas.
It is child pornography, bomb recipes, stalkers arranging real-life meetings...'
An Insight investigation has apparently revealed that there were as of June 1999 more than 500 Australian 'adult' sites, many containing X-rated material.
Another argument offered in support of the federal Government's attempts to regulate the Internet is that both those who produce material for the Internet and Internet service providers should adhere to the same sorts of restrictions as apply to the production and distribution of other forms of information and entertainment in Australia.
This point was made in The Australian editorial of March 25, 1999.
The editorial stated, `most Web surfers accept that the information delivered to their home, school or office via a computer should be subjected to the same rules and freedoms that apply to their reading material or television.
Internet providers seek to become part of our lives and their compliance with the law should not be a contentious request.
Similarly the Federal Government's announcement ... that it would attempt to apply the same standards to illegal material on the Internet as apply to other media should not have raised much concern.'
According to this line of argument, that the Internet is a new, growing and changing medium, an entirely electronic one and one which is difficult to regulate should not mean that no attempts are made to regulate it.
Those who hold this view maintain that there is nothing particular to the Internet which means its should be exempt from the sort of restrictions which are placed on other means of information dissemination.
It is further argued that the need to regulate the net is particularly important because the Internet is a form of mass information distribution that comes directly into the home and which is used regularly by children.
The desire to protect children and adolescents from exposure to potentially harmful or disturbing material carried on the Internet has been stressed by the Minister for Communications, Information Technology and The Arts, Senator Richard Alston
Senator Alston has stated, 'The Government's proposals are designed to protect Australian children from highly offensive and illegal material on the Internet in the same way that they are protected from such material on television, radio, films, videos, books and magazines.'
Further, it has been noted, the aim of Internet censorship is not simply to protect children from harmful or potentially disturbing material. There is, it has been claimed, content on the Internet which could incite or promote criminal behaviour and which adults should not have access to.
Referring to child pornography available on the Internet and its possible effect on paedophiles, Detective Senior Sergeant Chris O'Connor, the head of the Victoria Police child exploitation squad, has said, 'If they are downloading images and they haven't assaulted, they certainly will.'
It has further been suggested that regulating access to the Internet is not simply a matter of helping Net users make informed choices.
Those who support some materials actually being banned from the Internet, as is intended by Australia's new regulations, argue that many producers of potentially offensive or harmful material have domain names that disguise the nature of their sites.
In this way children or others may inadvertently stumble on undesirable material without having deliberately sought it.
This point has been made by Helen Razer, a commentator for The Australian.
Ms Razer has noted, 'The terrible thing [for those who have children in particular] is a user can stumble upon nauseating Web content without having any say in the matter.' (Please note, despite making this observation, Ms Razer does not support the greater regulation of material on the Internet.)
A similar point has been made by the operator of one of Australia's best-known adult sites, who has claimed that a lot of overseas sites distributing pornography 'use key words from kids' games ... to attract people doing searches for them'.
It is also noted that where it is the deliberate aim of the user to access offensive material, this is much easier to achieve through the Internet than in the real world where the material is more difficult to find and where, especially from a minor's perspective, the likelihood of detection is greater.
This point also is used to support the contention that Internet regulation requires some sites to be banned rather than simply classified.
Finally, it has been claimed that it is possible to electronically filter for offensive material and thus that Internet service providers will be able to meet the obligations that the new legislation places upon them.
Dr Darren Williams, the chief executive officer of Active Concepts, a Melbourne-based software company specialising in Internet surveys has claimed that by using an Internet survey engine his company has developed an Internet service provider could check the Internet for pornographic sites.
Mr Williams has said, ' any blacklist would have to be complied manually after each site was identified and checked. It could be done, but it would be a huge job.'

Further implications
Australia's new Internet regulations are very much a matter where the proof of the pudding will be in the eating.
Only once they are in operation and attempts are made to implement them, and evade them, will it be possible to gauge both how effective they are and what negative impacts they are likely to have on the Internet industry.
It remains to be seen how the Australian Broadcasting Commission and others will determine whether 'all reasonable steps' have been taken by an Internet service provider to prevent access to prohibited sites.
It remains to be seen just how inventive the producers of pornography and other restricted material become in circumventing legal and technical restrictions imposed upon them.
It also remains to be seen whether the new legislation will have the dampening effect on the Australian Internet industry which its critics fear.
It is interesting to note that the users, suppliers and distributors of Internet material seem to see this medium as a special case which, by nature of its free and unregulated origins and open and changing form, should not be subject to government regulation.
It is almost equally interesting to note that civil liberties groups outside the Internet industry have not taken up the cause of Net freedom of speech and artistic expression in the way they normally would over a censorship issue in the real rather than the virtual world.
On the immediate question of whether Australia is undergoing a conservative backlash, which has made censorship more acceptable it is difficult to say. It has been suggested that one of the reasons why the current government has advocated censorship in a variety of contexts has been to win the support of independent Senator Brain Harradine.
Once the Australian Democrats and not independent senators hold the balance of power in the Senate it will be easier to judge just how socially conservative the current government is.

Sources
The Age
3/2/99 page 10 news item, 'Free speech defeats US anti-porn laws again'
19/2/99 page 3 news item by Garry Barker, 'Porno Net sites lure children'
19/3/99 page 7 news item by Adrian Rollins, 'Cabinet to ban cyberporn'
19/3/99 page 7 analysis by Garry Barker, 'The logistics of filtering the Net'
24/3/99 page 8 news item by Garry Barker, 'Canute stance on Net porn "futile"'
20/4/99 page 5 news item by Garry Barker, 'Bid to block Net porn under fire'
2/5/99 page 24 comment by Chris Wright, 'Buying Brian, defying logic'
18/5/99 page 8 news item by Garry Barker, 'Censorship may stifle local Internet growth, developer claims'
26/5/99 page 6 news item by Garry barker, 'Net laws "no block to porn fanciers"'
27/5/99 page 4 news item by Adrian Rollins, 'Harradine vote passes "flawed" Internet control'
27/5/99 page 16 editorial, 'Shooting the message system'
30/5/99 page 11 analysis by Garry Barker, 'In cyberspace, no one can hear you scream'
3/6/99 page 3 news item by Paul Conroy, 'Police alarm on Net child sex sites'
3/6/99 page 15 analysis by Paul Conroy, 'Every parent's nightmare'
9/6/99 page 1 news item by Mark Forbes, 'Porn merchants ready to slip through the net'
9/6/99 page 15 analysis by Mark Forbes, 'www.sexlaws.not.on'

The Australian
23/3/99 page 17 comment by Helen Razer, 'Click here to get real, Brian'
25/3/99 page 14 editorial, 'Internet controls must begin at home'
29.4/99 page 11 comment by Mark Armstrong, 'Net censors hit the wrong target'
27/5/99 page 2 news item by Wayne Adams, 'Internet censorship put online'
3/6/99 page 10 editorial, 'Internet laws only window-dressing'
7/6/99 page 3 comment by Murray Walden, 'Intellects off-line over Net'
7/6/99 page 13 comment by Frank Devine, 'Bumbling over cyber sex hammers free speech'

The Herald Sun
13/4/99 page 19 comment by Clinton Porteous, 'The dark side of the Net'
20/4/99 page 23 news item by John Masanauskas, 'Move to ban Internet porn'
28/4/99 page 29 news item, 'Industry warns on Web bans'
27/5/99 page 3 news item by Kate Hannon, 'Net porn hosts face massive fines'
8/6/99 page 18 comment by Mark Briskin, 'As evil as porn'