Silenced - Australia

21/09/2003

Australia

Internet censorship laws were passed by the Federal Commonwealth Parliament in 1999 and commenced operation on 1 January 2000. The Broadcasting Services Act was amended to give the television regulator, the Australian Broadcasting Authority (“ABA”), the power to order Australian ISPs to remove content hosted on their networks, including usenet messages. It also provides the power to to the ABA to order Australian ISPs to take-down images and text from websites and newsgroup servers on threat of fines of up to AUD$27,500 per day.

The scheme is complaints-based and information subject to banning includes material deemed unsuitable for minors (under 18 years) unless access is restricted by an ABA- approved adult verification system. Other material is subject to banning whether or not access is restricted. This includes: non-violent sexually explicit material involving consenting adults; material that depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they challenge the standards of morality, decency and propriety generally accepted by reasonable adults; and material that promotes, incites or instructs in matters of crime or violence.

In November 2002, the NSW Police Minister called for the banning of web sites being used to organise protests for the World Trade Organisation meeting in Sydney, claiming the sites were inciting physical attacks on the police. However, the ABA found that the sites did not breach the censorship laws that include provision for banning information that instructs, promotes or incites in violence or crime.

In November 2002, Electronic Frontiers Australia issued a report finding that the scheme had been largely ineffective. The ABA had spent most of its Internet censorship efforts investigating complaints about content on overseas-hosted websites over which it had no control. Some banned Australian websites had simply moved overseas to escape control by the national body. When Electronic Frontiers Australia requested information under the Freedom of Information Act about banned and permitted content of the same type adults are permitted to access in magazines and videos, the ABA refused. In mid 2002, the Administrative Appeals Tribunal upheld the ABA’s refusal. Soon after, the Government introduced a bill that would specifically exempt information concerning administration of the censorship law from the FOIA. The bill is due to be debated by the Senate in mid 2003 and opposition parties have indicated that they will not support the Government’s attempts to further prevent public scrutiny of operation of the censorship laws.

Online content censorship laws are also in force in four of the eight States and Territories. Most recently, the South Australian ‘Classification (Publications, Films and Computer Games) Act’ was amended. The amendments, effective from December 2002, criminalise making “matter unsuitable for minors” available online. Penalties include a fine of up to AUD$10,000. Victoria, Western Australia and the Northern Territory have had somewhat similar laws in place since 1996. A New South Wales law, almost identical to the South Australian law, was put on hold in June 2002 for re-consideration following a NSW Parliamentary Committee recommendation that it be repealed. Among other things, the Committee found that the law “could have a significant effect on the legitimate use of the Internet and may affect the fair reporting of news and current affairs”.

In December 2002, the High Court ruled that Australian businessman Joseph Gutnick could sue the Dow Jones US media group for libel in Australia for an article that appeared on the website of the group’s Barrons magazine, because the online article could be read in Australia. The decision upheld a ruling of the Victorian Supreme Court, that had been appealed by Dow Jones. Dow Jones’ lawyer warned that the ruling was a serious precedent that would threaten online media worldwide.

The Commonwealth Cybercrime Act, approved in September 2001, includes provisions to force individuals to provide their encryption keys or decrypt data, contrary to the common law privilege against self-incrimination. In 2002, the Federal Government introduced a bill that would have allowed interception of electronic communications stored during transit (e.g.for example, email, voice mail and SMS messages) without a court order. The government was unable to obtain sufficient support in the Senate to pass the bill, and stated that it would try again at a later date. Earlier in 2002, it had been revealed that phone companies were providing law enforcement agencies with the phone call records of around 2,000 people every day, although according to the Australian Federal Police “it is not feasible to attempt to measure the number of arrests or convictions that might have eventuated” as a result of such disclosures.

References

Electronic Frontiers Australia

http://www.efa.org.au/

Cybercrime Act 2001

http://scaleplus.law.gov.au/html/pasteact/3/3486/pdf/161of2001.pdf

Broadcasting Services Act.

http://www.aba.gov.au/legislation/bsa/

Roger Clarke, Defamation on the Web: Gutnick v. Dow Jones

http://www.anu.edu.au/people/Roger.Clarke/II/Gutnick.html

Australian Privacy Foundation

http://www.privacy.org.au/