Australia: Another Y2K Bug

With the expressed intent to provide a "workable and effective regime to prevent the publication of [offensive or illegal] material" on the Internet, the Australian Parliament passed the Broadcasting Services Amendment (Online Services) Bill on June 30, 1999. Slated to take effect on January 1, 2000, this legislation imposes codes of practice for Internet Service Providers (ISPs) that require them to block access to R- or X-rated material hosted overseas, through the cross-application of standards designed for classifying film and video. Specifically, X-rated content hosted overseas will be blocked "at the border" by ISPs, while R- and X-rated content hosted in Australia will be subject to a takedown order issued to the Internet Content Host (ICH).

According to the National Classification Code of the Office of Film and Literature Classification, R-rated material "deals with issues or contains depictions which require an adult perspective. . . Some material may be offensive to some sections of the adult community." The Code also stipulates that X-rated material is not restricted to pornography, but encompasses anything that would offend a reasonable adult or that would instruct someone to commit a crime. The Australian Broadcasting Authority (ABA) will ensure adherence to these guidelines; it is mandated to levy fines of up to $27,500 per day on ISPs hosting material deemed illegal. It is important to note that, under this legislation, libraries will be regarded as ISPs--in short, a public agency may be fined for making material accessible on its computers that a member of the public might freely borrow from its shelves.

Moreover, the codes of practice outlined by the Online Services Bill "must encourage service providers to offer differentiated services to filter out unacceptable content hosted overseas." In practice, this requirement for a "differentiated service" means that Internet Service Providers (ISP) are likely to install broad software filters to comply with these codes. Publication and access on the Internet will be governed by these filters: the private firms which produce them will become the ultimate arbiters of Internet expression in Australia.

In addition, these provisions of the Online Services Bill will also apparently govern the transmission and storage of bulk or list-based, but not personal, e-mail. A battle over the interpretation of these provisions will be waged in the courts.

Electronic Frontiers Australia (EFA) and the Australian Council for Lesbian and Gay Rights (ACGLR), in coalition with a host of other LGBT and other community groups in Australia, are gravely concerned that the Bill effectively mandates a privatized regime of censorship that relegates authority to ISPs and the producers of crude software filters--a move that ultimately may entrench discrimination against lesbians, gays, bisexuals, and transgender people. According to an ACGLR report submitted to the Senate, which was supported by the New South Wales Gay and Lesbian Rights Lobby, Sydney Gay and Lesbian Mardi Gras, Victorian Gay and Lesbian Rights Lobby, and Gay and Lesbian Equality (Western Australia):

There are no safeguards against inappropriate blocking or deletion of Internet content or to protect lesbians and gays from malicious and spurious complaints.ISPs as enterprises that are not in the business of censorship may also block or delete content arbitrarily and inappropriately, particularly because of differing interpretations as to what constitutes 'offensive' material.

This legislation will undoubtedly promote more widespread use of software filters, which search the content of websites, including the hidden programming code, for words or phrases that the filter maker has deemed inappropriate. This process is often supplemented by the compilation of lists of banned websites, which can never account for the ever-burgeoning number of websites on the Internet. According to activists in Australia, the likely surge in the use of software filters, given their crude reliance on banned words and phrases in scanning website content, could result in massive inappropriate blockage-in the language of the industry, "collateral damage" --affecting millions of websites originating in and reflecting the lesbian, gay, bisexual, and transgendered communities.

The US-based Gay and Lesbian Alliance Against Defamation, in its ground-breaking report "Access Denied: the Impact of Internet Filtering Software on the Lesbian and Gay Community," concluded, "The majority of software currently on the market, as well as new products in development, place informational Web sites serving the gay and lesbian community in the same categories as sexually explicit sites. The software developers are either unable or unwilling to consider that information about sexual orientation and identity (e.g., a gay square dancing site) has nothing to do with sexual behavior, and everything to do with cultural identity." In short, these filters conflate lesbian and gay identities, health, and cultures with sex.

AGCLR underscores the particular impact of this legislation on LGBT youth. According to its report to the Senate, " We are already seeing the impact of software filters in the blocking of access to health, welfare, and other information for lesbian and gay teenagers and adults." As the Gay and Lesbian Alliance Against Defamation reminds us, LGBT youth are among those most threatened by the imposition of filtering software: "The resources available on the Internet-websites, chats, and educational resources-are literally life-saving to these young people, who may live in isolation, not only geographically but emotionally as well." The stakes are illuminated by several well-known studies indicating that lesbian and gay youth are two to three times more likely to attempt suicide than their heterosexual counterparts.

The impacts, though, may transcend LGBT communities; many software filters on the market automatically block access to rape crisis centers and information about breast cancer, based on screenings of the words "rape" or "breast"; some popular filters such as NetNanny prevent subscription to HIV/AIDS or feminist mailing lists. AGCLR further maintains that most software filters were developed in and reflect the unique cultural biases of the United States--and as such, are not appropriate for deployment in Australia.

This denial of access constitutes a violation of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which states, "Everyone should have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

The ICCPR enumerates a number of conditions under which the right to freedom of expression may be restricted, but specifies that.these restrictions must be lawful--that is, embodied in law and not arbitrary--as well as necessary to a democratic society. In allowing ISPs (and the producers of filters) to impose their own judgment on the filtering of sites, with the implicit understanding that economic exigencies will compel that judgment to cast as wide a net of restrictiveness as possible, the state is abdicating extensive control over freedom of expression (as well as extensive power over its protection) to private bodies. In doing so it is not only opening the door to restrictions that are arbitrary and literally unlawful--for, despite the motive force behind censorship being an Act of Parliament, that Act surrenders the powers to standardize and censor to private corporations. It also creates restrictions which are unnecessary to, and indeed fundamentally opposed to, the aims of a democratic society. Australia defines itself as not only a democratic but a "multicultural" state, with a political system committed to the preservation of diverse cultural identities. This legislation invites private agencies to suppress the expression of those identities, with a new system of social control predicated on a dictionary-based witch hunt: a frantic hunt for offensive nouns, indifferent to the semantic richness, social complexities, and living communities and context those words may represent. In sum, the legislation abandons democratic process to the whims, prejudices, and profit-making needs of corporations.

While this legislation will take effect on January 1, 2000, the opposition parties in the Senate (Australian Labor Party and Democrats) have forced a requirement on the parties in government (Liberal and National) to conduct six- monthly reviews of the effects of the legislation. The opposition has indicated that, at some point in the future, it may call for a repeal.

AGCLR and EFA urgently request letters demanding an immediate repeal of this legislation. Letters should be addressed to:

Senator Hon Richard Alston MHR
Minister for Communications, Information, Technology and the Arts
Parliament House, Canberra, ACT, 2600
Fax (03) 9650 0220
Senator.Alston@aph.gov.au

with copies to

Senator Kate Lundy
Shadow Minister for Information Technology
Parliament House, Canberra, ACT, 2600
(02) 6230 0413 Fax
Senator.Lundy@aph.gov.au
Senator Natasha Stott-Despoja
Deputy Leader Australian Democrats
Parliament House, Canberra, ACT, 2600
(08) 8232 7601 Fax
Senator.Stottdespoja@aph.gov.au

and

Senator Bob Brown
Leader Australian Greens
Parliament House, Canberra, ACT, 2600
(03) 6234 1577 Fax
Senator.Brown@aph.gov.au

Letters should make the following points about the Online Services Bill:

  • The crude form of censorship imposed by current filtering software places informational and social/support Web sites for the gay and lesbian community in the same categories as sexually explicit sites, resulting in massive inappropriate blocking.
  • If implemented, these measures could deny access to vital, even life-saving, representations and information, particularly for lesbian, gay, bisexual, and transgendered (LGBT) youth.
  • The rights and expression of the lesbian, gay, bisexual, and transgendered communities are not an acceptable 'trade off' to satisfy concerns about the protection of minors from viewing material considered offensive.
  • The provisions of the Online Services Bill violate the right to freedom of expression as enshrined in the International Covenant on Civil and Political Rights and contravene Australia's international human rights obligations.
  • This legislation imposes a level of censorship on Internet use that is unprecedented among Western democracies and places Australia out of line with emerging international norms, which urge the avoidance of excessive regulation.