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The South Australian Net censorship Bill is unjust and unworkable

By Irene Graham - posted Thursday, 15 March 2001


The provision is also inconsistent with Commonwealth law. The Australian Broadcasting Authority (ABA) has no power to issue a take-down notice to Internet Content Hosts (ICH) relative to content it considers "would be" classified R. However, the SA Bill enables prosecution of an Internet user to commence prior to the material being classified during which time it is legal for the ICH to continue to make the material available to both minors and adults. (ICH activities are regulated by Commonwealth law, not SA law.)

While it is a defence to a prosecution, in the SA Bill, for the defendant to prove that access to the matter unsuitable for minors was subject to an approved restricted access system, restricted access systems are administratively onerous to the extent that few Australian content hosts would be prepared to incur the costs involved in setting up and administering the relevant systems. It would be far easier to simply set up sites offshore in a country where such regulatory burdens are not imposed.

The only approved system to date is that of the ABA which is extraordinarily privacy intrusive, requiring users to provide personal identifying information that goes far beyond proof of age, while not meeting the objective of protecting children more effectively than standard restricted access systems presently in use. The SA legislation provides no privacy protection. On the contrary, it encourages infringement of users' privacy and, further, in conjunction with Commonwealth law creates defences for businesses and content providers who infringe privacy.

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There is no obvious means by which a content provider can prove a restricted access system was in place at any given time in the past. Enforcing the use of "restricted access systems" will be the death knell for Australian content (in Australia) which requires an "adult perspective" but does not contain pornography or violence. Meanwhile minors will continue to have unrestricted access to material provided by non-Australian content providers that would be classified R.

The SA Bill does not give content providers an opportunity to take material down when they have inadvertently mis-guessed the classification, but instead it criminalises them. The effect of the legislation is to implement a ban on adult discourse on social and political issues on Australian Internet sites, including on e-mail discussion lists that are archived and in newsgroups.

We recommend that:

  • The definitions of material excluded from the proposed legislation be widened so as to avoid the potential for Internet users to be prosecuted for participation in newsgroups or other discussion groups.
  • The South Australian Parliaments reject proposals to criminalise inability to foresee a non-unanimous decision of a group of people. The recklessness element of offence provisions presents an unjustifiable risk to the freedom of average Australians, since the matter of how any particular material "would be" classified is not a matter of fact, it is a matter of opinion, a value judgement.
  • Offences relative to "matter unsuitable for minors" be deleted from proposed State/Territory legislation. Regulation of R-rated content will cripple the Australian content-hosting industry and adversely affect Australian content providers. There is no benefit in criminalising Australian content providers, or attempting to restrict content and conversation on the Australian Internet to that fit for a kindergarten, when similar material will be readily available to children on overseas sites.
  • The reference to advertisements be deleted from proposed legislation. It criminalises activity that is legal offline. Attempts to criminalise advertisements on-line are very likely to result in a raft of undesirable and unintended consequences, ranging from well-intentioned content providers becoming victims of overzealous regulation to adversely affecting the development of the Australian on-line economy.
  • Internet Content not be classified as a "film". If content providers can be successfully prosecuted for making available "films" that consist of text and static images (e.g. Web pages), then under existing Classification law librarians and teachers (and others) who manage or supervise premises containing computers connected to the Internet can be prosecuted for events beyond their ability to control. Because it is an offence in all States/Territories to sell an unclassified film, newspaper publishers who presently sell electronic copies of archived newspaper articles online could be prosecuted.
  • State and Territory Governments not criminalise content providers who make available material that would be classified X. Many Australian adults wish to view such material and if Australian content providers are not permitted to make it available, Australian's will simply pay overseas content providers for access to such material (as well as access it on free overseas sites).

The proposed legislation contravenes Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The proposed legislation will not protect children, but it will infringe adults' rights to freedom of speech and the legislated principle in Australian law that adults should be free to read, see and hear what they want.

Legislative attempts to regulate content on the Internet should be abandoned. Publication of globally agreed illegal material can already be prosecuted under existing law, and regulations concerning contentious material are inappropriate in a world where cultural differences cannot be easily reconciled.

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This is the Executive Summary of EFAs analysis of the SA legislation. Click here for the full analysis.



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About the Author

Irene Graham is Executive Director of Electronic Frontiers Australia.

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Electronic Frontiers Australia
Libertus.net - About Censorship and Free Speech
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