The government has not abandoned its efforts to win approval for its mandatory national Web filtering system and has persuaded Internet service providers to create a voluntary system. It has just received the recommendations of the Law Reform Commission which may put in question the type of content involved and enforce its application to all media. In parallel, the conclusions of an inquiry into the media, such as the creation of a “News Media Council” could turn out to be dangerous for freedom of information in the blogosphere.
Privatisation of censorship In the Australia chapter of the 2011 report on Internet Enemies, Reporters Without Borders expressed concern at the government’s readiness to create a repressive Internet filtering system which would be managed in a non-transparent manner by a government agency based on very broad criteria. Mandatory filtering appears still to be the government’s goal but it does not yet have the necessary political support. To bypass the political status quo, members of the Internet Industry Association introduced a voluntary system in July last year, based on Interpol’s blacklist rather than the one compiled by the Australian Communications and Media Authority (ACMA), the official body responsible for censorship. The voluntary system, already applied by the ISPs Telstra, Optus and Primus, blocks domain names and URLs. Like the proposed national filtering system, it blocks access to content deemed inappropriate by the government such as child pornography and sexual abuse. According to Senator Stephen Conroy, the minister for broadband, communications and the digital economy, the proposal has been rejected by only one ISP, with which the government is still negotiating. This is the first time in Australia that, as a result of cooperation from technical providers, the federal police are able to invoke section 313 of the Telecommunications Act to block domain names and URLs by identifying and collating online content for censoring. In this way it compels ISPs to remove the content concerned, effectively applying mandatory censorship. The Australian branch of the NGO Electronic Frontier Foundation, which campaigns against censorship of the Web, has asked the authorities for greater transparency in the way that the blacklists of domain names, URLs and websites are drawn up. According to Enterprise Features, a website that specializes in business computing, Australia spends 2.7 million dollars a year on Internet censorship. However, most of this is used to settle complaints by blacklisted sites. Classification of filtered content to be reviewed Officially, the application of the filtering system has been suspended since July 2010 while the Australian Law Reform Commission conducts a review of the criteria for the “refused classification” (RC) category. The justice minister, Robert McClelland, ordered the ALRC to review this category, while also conducting public consultation and evaluating the practices and codes of companies in the sector. The ALRC’s report, submitted at the end of last month, contains recommendations that the type of content targeted by the filtering rules should be restricted to that linked to paedophilia. It suggests that other types of content should be blocked by ISPs only when it is defined as “prohibited”. The Commission has recommended that the government review prohibitions on “the depiction of sexual fetishes in films and detailed instruction in the use of proscribed drugs” and to refine its ban on content that “promotes, incites or instructs in matters of crime” to be limited only to serious crime. A new media content classification act should cover the classification of all media in Australia on any platform, and spell out how those responsible for content, including Internet service providers, should rank prohibited content. The ALRC, said that, because of the large number of online media organizations, it would not be possible to classify everything and ISPs should “take reasonable steps” to identify prohibited content, including allowing users to report such content online. Reporters Without Borders is opposed to all mandatory and comprehensive filtering systems. The European Court of Justice has ruled that Internet filtering undermines freedom of information. In its ruling, the court states clearly that measures that oblige an ISP to carry out general monitoring of information that it transmits via its network were contrary to European law and infringe basic rights. Frank La Rue, the UN special rapporteur for the promotion and protection of freedom of opinion and expression, recommended in his report published in June 2011: “There should be as little restriction as possible to the flow of information via the Internet, except in few, exceptional, and limited circumstances prescribed by international human rights law.” He also said: “The right to freedom of expression must be the norm, and any limitation considered as an exception.” Media inquiry and judicial harassment of bloggers The report of the Inquiry into Media and Media Regulation by former Federal Court judge Ray Finkelstein and Professor Matthew Ricketson published on 4 March includes a basic recommendation that is fraught with danger for freedom of information in the blogosphere. Its proposed creation of an independent News Media Council, at a cost to the government of least 2 million dollars a year, represents a danger for the most financially vulnerable organizations and individuals. The council would have the power to order changes to published content, publication of a right of reply by anyone or any organization that makes a complaint, and the publication of an apology. Refusal to comply could result in the author, media organization or blogger being accused of contempt of the Council and tried by a court with the power to impose prison sentences. The impact of the News of the World scandal in the United Kingdom has strengthened the idea among those in favour of the new council that there is a need for an authority to regulate the media, given that the latter tend to abuse their power. For any Internet user who wants to appeal, once the case has been referred to court, the financial cost could remove any possibility of a fair defence by the author of content that is the subject of a complaint. Mark Pearson, professor of journalism at Bond University, commented: “And what if such a Council orders a leading environmental news site or magazine to publish an apology to a mining magnate for the ethical breach of publishing a ‘biased’ and inaccurate report about the company’s waste disposal practices, based on sensitive material from confidential sources? Where would the power and resources rest in a court appeals process in that situation?” This proposal amounts to converting the code of ethics of the Media Entertainment and Arts Alliance (MEAA), the union covering Australian media, into laws enforceable by the courts. Small publishers and bloggers could well feel coerced into publishing corrections or apologies because they may not have the time, energy or resources to defend themselves in court against a contempt charge.