Cacophony and Chaos
By Heath Gibson

Internet Censorship and Content Regulation

‘The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.’ – from the majority judgement in Reno v ACLU.

Internet censorship, or ‘content regulation’ as those who would disguise its true meaning refer to it, is a cause for concern not just for those with a direct stake in the online society, but for anyone with a concern for the ideals of freedom of expression and freedom of access to information. The major problem with current proposals to censor the internet is that they fail to appreciate the unique nature of the internet. This article will examine some of the censorship developments since early 1997, and will argue that censorship proposals, such as that put forward by the Department of Communications and the Arts (DoCA) in mid 1997, are impractical and unworkable and will only act to hamper freedom of expression and freedom of access by Australian internet users.

Internet censorship – developments in 1997

A number of developments took place in 1997 which set the scene for the DoCA proposals. The most important developments were the release of recommendations of the Senate Select Committee on Community Standards (SSCCS), the recommendations arising from the Wood Royal Commission in NSW, and the unanimous striking down of the Communications Decency Act by the US Supreme Court.

The Senate Select Committee

In June 1997 the Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies released its Report on Regulation of Computer On Line Services Part 3 (SSCCS 1997). This committee received over 40 submissions from the public, including many from individual internet users concerned about the extension of censorship to the internet.

The Senate Committee recommended not only that it be an offence to transmit material which is or might be Refused Classification or Restricted, but proposed to protect from prosecution internet providers who remove material from their sites which might cause offence, even if the material is not illegal.

Furthermore, it recommended the development of voluntary codes of conduct for the internet industry. However it also recommended fines of up to $100 000 for breaches of such a ‘voluntary’ code. To ensure that such a code is being adhered to it recommended the code be overseen by a body such as the Australian Broadcasting Authority (ABA) and enforced by random audits of online content by the state and federal police forces. It is difficult to say if the prospect of police being paid to ‘surf the web’ in search of offending material is more absurd because it would be draconian or because it would be a hideous waste of money, most sites of concern to censors being located in the USA or Europe.

It also recommended the development of an Australian internet content rating system which takes into account Australian values and the principles underlying the Office of Film and Literature Classification (OFLC) guidelines. This reappears in the DoCA proposal and the problem with such an approach will be examined at that time.

Finally, it recommends Australia closely follow the regulatory regimes adopted by our international peers. Included in the countries whose regimes we should emulate is that of Singapore, whose internet censorship laws allow censorship and blocking of politically controversial material.

The Wood Royal Commission

The second development was the release of the recommendations of the Wood Royal Commission in New South Wales. The report makes a number of recommendations in relation to the internet. Whilst not strictly dealing with censorship per se, the recommendations demonstrate a lack of understanding of the internet which is not uncommon amongst those who seek to regulate it.

The recommendations included the suggestion that it be made an offence to encourage a person under sixteen to engage in sexual activity. This is rather problematic. Aside from the vagueness and ambiguity of ‘encourage sexual activity,’ there is no reliable means for ordinary internet users to verify the age of someone they are corresponding with over the internet. This means people can both overstate and understate their age, each of which has its own problems.

But it is the attack on privacy and the lack of understanding of filtering technology which is of most concern. The report suggests allowing law enforcement agencies access to the usage logs of internet providers without a warrant, where the agency certifies it is reasonably necessary. This is analogous to allowing access to details of all addresses which an individual sends postal mail to or has received mail from, and at what time of day the letters were sent and received. Indeed, since the logs could also show connections to internet chat sites, it is the equivalent of monitoring every conversation of an internet user. This power represents a significant attack on the privacy of internet users and may discourage expression of controversial opinion by some users.

Perhaps the most confusing proposal is the development of a program to educate parents as to ‘what is on the Internet in terms of child pornography and the filter and blocking technology available to them’ (Wood Royal Commission 1997). The benefit in educating parents about the presence of child pornography is unclear, as is how filtering technology is supposed to fit into the picture, since such material is unlikely to be present on publicly accessible web sites.

Reno v ACLU – a victory for free speech

The one bright spot for freedom of expression in 1997 was the decision by the US Supreme Court finding the Communications Decency Act to be unconstitutional. Unfortunately for Australian internet users, the Senate Committee on Community Standards was making its pro-censorship recommendations at the same time as the US Supreme Court was highlighting the practical, legal and ethical problems with attempting to censor the internet.

The DoCA proposals

In 1997, the Department of Communications and the Arts announced guidelines for the establishment of industry codes of practice for Australian online service providers (DoCA 1997). These guidelines, based in part on the recommendations of the Senate Committee on Community Standards, are problematic and raise issues not just about their technical workability but also about the impact on free speech and freedom of access to information. The DoCA proposals are based on examination of content regulation proposals and practice in several countries and therefore a critique of them also provides a critique of many of the features of internet censorship which are common across the globe.

‘Community standards’ in a global community

The DoCA proposals set, as an objective, encouraging on-line service providers to respect community standards. The weakness of this becomes apparent when one asks the question ‘Whose community standard? … the standard of which community?’ Whether one chooses to define community by ethnicity or race, religion, political beliefs, geographic location or some other measure, Australia is made up of many different communities. Attempting to define a common set of community standards for Australia alone would be a futile exercise. Attempting to apply this set of standards to the internet, which is global, is even more problematic.

Internet users have become their own community, with their own social rules and norms. Many internet users, including the author, see ‘free speech’ as being one of the fundamental social values of the online society. It is not surprising then that censorship proposals are unpopular with many internet users.

The internet is a global medium and hence includes participants from a wide range of cultures and beliefs, some more liberal than Australia and some more conservative. Attempting to impose ill-defined Australian community standards on internet users who have become accustomed to its social and political diversity may well provoke a backlash from internet users who have become a part of this wider community.

Protecting minors and adult freedoms

The perceived need to protect minors from unsuitable content has been used to justify controls on what adults see and read so many times that many on the internet have come to regard it as a trademark of government and censors. It is an area of concern to both sides of the censorship debate. What differs greatly is the approach each side argues should be taken.

Those in favour of censorship argue it is necessary to ensure that all children are protected, essentially at whatever cost to adult freedom. Running against this is the argument that the decision as to what is or is not appropriate content should rest with parents. Education and involvement in children’s internet usage offer the best response to content concerns on the internet. Supervision of access by children and an education that empowers children to respond to diverse content are responses that ‘protect’ children without abridging adult freedoms. These aims are not mutually exclusive.

Much the same applies to the perceived problem of child pornography. Those opposed to internet censorship support the sentiment of their opponents, but reject the method. Existing criminal codes already provide a basis for prosecuting anyone engaged in the distribution of child pornography and would be a preferable method of addressing any such concerns. This is especially so where the alternative is the system alluded to by the Wood Royal Commission and involves serious breaches of users’ privacy.

Complaints – who is responsible for content?

The guidelines also set out the establishment of a complaints mechanism. The first point to make here is that internet users have always had the capacity to complain about content. What differs is who these complaints are addressed to.

Traditionally, internet users who have been sufficiently enraged by some particular action or content would complain either to the originator of the content or to the internet service provider (ISP) of the offending content provider. Where the DoCA proposals differ is that internet users are expected to complain to their ISP and it is their ISP who is expected to take action to block access to the material. This proposal makes internet providers responsible for handling complaints not only about domestic content accessed through their services, but also for content originating outside Australia. How internet providers can be expected to be responsible for content outside their site, let alone material from another country, is unclear. If internet providers are expected to block access to certain sites (which indeed they may do, since the next level in the complaints procedure involves the ABA) then this has ramifications for freedom of access to information by Australian internet users.

Further, as mentioned before, internet users have become accustomed to the culture of the internet, which promotes free speech and freedom of access. Blocking the access of all users, based on the selective complaints of some, is likely to disturb those accustomed to the more liberal internet culture.

What potentially makes this blocking more insidious is that internet users may not be aware that they are being censored. Unless users receive a warning that their access has been blocked due to censorship laws, the act of censorship will become virtually invisible. Without an explicit message, many users will probably assume their inability to access certain material is due to technical difficulties or the material having been relocated, rather than to censorship.

The problem of defining content

Defining content appears deceptively straightforward. Indeed, DoCA defines content as including ‘material transmitted in the form of text; data; speech, music or other sounds; graphics or other visual images, whether static, moving or otherwise; software; and such other forms of content that are determined by the Minister by disallowable instrument.’ The problem isn’t so much with the extensive list of what constitutes content, but what classification/censorship regime applies to multimedia communication.

Consider for example a web page that contains text, images, sound and perhaps an interactive ‘game’. This poses real problems for classification. Classifying print publications is fairly straightforward, in most cases a matter of unrestricted, restricted (with sub-categories) or RC (refused classification, i.e. banned). Films classified by the OFLC range from General audience through to Restricted (18+), NVE (Non-violent Erotica) and RC. Computer games are Refused Classification if they contain content which would cause them to be rated higher than Mature Adult (15yrs +). But where does this leave the producer or designer of a web page?

The answer is – confused. Material that might push the upper bounds of unrestricted text could well find itself in the MA or possibly even R category if it has to be rated as if a film. The same goes for static images. What about an interactive crossword puzzle – is it rated as a game, as printed text or using the system for films? How about sound or music recording – is it to be self regulated as the off-line music industry is, or will it be rated somehow?

Just how does one rate material such as that contained in popular magazines like Cleo and Cosmopolitan? In print form these are unrestricted publications, but what if they were rated by the system applied to films and television? They may well rate in the MA category because of their explicit discussions and depictions of sexual matters. But a web page can incorporate all these different media in the one page! Clearly, attempting simply to apply existing OFLC guidelines and state censorship laws would raise interesting problems.

Even if a consistent content rating system could be developed, applying it is still going to be problematic. Content provision on the internet is often undertaken by individuals with no training in rating content. Providing suitable training to everyone in Australia who publishes some form of content on the internet could prove an expensive venture, irrespective of whether the ISP or the ABA/OFLC assumes responsibility for the task. The possibility of punishment for those who inaccurately rate material could act as a deterrent to content provision by individuals and hence a reduction in content diversity.

One form of content the proposals are correct in excluding from coverage is e-mail. Attempting to censor what is essentially private communication would be regarded by most people as inappropriate. But the guidelines do not exclude internet relay chat (IRC) and web based chat forums. IRC allows users to engage in real time text based conversations on ‘channels’ or ‘chat rooms’. Without going into a detailed explanation it is probably sufficient to say that IRC (and its web based equivalents) is the virtual equivalent of people going to pubs/clubs/friends’ houses and engaging in conversations as diverse as human thought can be. What it is important to appreciate is that there are no exclusions from censorship for these conversations. Attempting to apply any sort of restriction to these particular applications of the internet is clearly impractical and should not be tolerated in a society with any value for freedom of communication and privacy.

The problem of lowest common denominator

Another problem is that the proposals make it illegal to publish content which is illegal in any Australian state or territory. The DoCA proposal makes it compulsory that any industry code of practice make it an offence for online service providers to publish content that is RC under the OFLC guidelines or is illegal under a State or Territory law.

The problem here is that it establishes a lowest common denominator standard for what content can be published. It also potentially compounds the confusion for content providers. For example, a content provider in NSW, besides having to understand the restrictions imposed on them by the laws of their own state, must understand what content is prohibited under the laws of other states. The problem for content providers becomes even more complex when trying to decide whether a hypertext link to a site possibly containing controversial material will raise the rating of the content provider’s web page.

This is then compounded by the existence of web pages that use ‘frames’. A framed page splits a web page into several smaller windows and the content displayed in a particular frame need not be on the content provider’s web site. A similar problem is raised by remotely sourced images, i.e. images that appear when a particular page is loaded but are in fact located on a different computer (possibly in another country) to the page being viewed. All these add up to make the system impractical and unworkable.

Ordinary citizens as content providers

The diversity of content available on the internet can be attributed to the diversity of providers and the multitude of reasons they have for being involved with the internet. Content providers do not merely consist of commercial organisations and on-line versions of the conventional media. They include individuals and organisations with a wide range of interests who may be providing content for a multitude of reasons beside commercial profit. Examples could include informal support groups and information for sufferers of medical conditions, ‘unofficial’ fan sites for television shows and personalities, or information about a charitable group or organisation. Thus, although an increasing amount of content provision is by professionals and conventional media organisations familiar with the OFLC guidelines, there is still a great deal of content on the internet which is provided by individuals, hobbyists and small organisations both commercial and non-profit.

These groups are unlikely to be familiar with the finer details of content classification under either state censorship laws or the guidelines of the OFLC. For many individuals or non-profit groups, the penalties which can be associated with incorrectly classifying material may be such that it is no longer viable to publish information on the internet.

Australian internet censorship could also lead to much Australian content going overseas. There already exist many organisations, principally based in the US, which provide web space, e-mail addresses and newsgroup posting services either for free or as commercial services. Individuals may find themselves forced to use these overseas services in order to avoid uncertain or burdensome rules applied to them in Australia. They may also choose this option where they wish to express opinions or display content that may be controversial or of uncertain legal standing in Australia, but which would be protected in the USA under the First Amendment. The decision in Reno v ACLU has ensured that, for the time being at least, the US portion of the internet will remain a free speech zone.

Attorney-Generals’ Conference – December 1997

Although the core framework for regulating the internet remains the 1997 DoCA proposals, a number of recent events should be mentioned. In December of 1997 the Commonwealth Attorney-General’s Office issued a press release (A-G’s Office 1997) which affirmed the commitment of both Federal and State governments to a ‘tough’ regulatory stance, whilst at the same time continuing to claim an approach of industry self-regulation.

The press release continues to show a lack of appreciation of the practical problems facing ISPs. The release states that ISPs should be liable where they knowingly and passively permit offensive or illegal material to be placed on their system. This creates potential hazards to free speech. Firstly, the statement suggests that ISPs and content providers could be charged with an offence even though the material they are distributing is not actually illegal, merely offensive. As highlighted earlier, what standard do you use for determining offensiveness when you are dealing with a global community? Regulators evidently still fail to appreciate the inappropriateness of attempting to impose subjective local standards of ‘offensiveness’ on users now accustomed to the free speech and openness of other jurisdictions, particularly the United States and certain parts of Europe.

The term ‘knowingly’ may also create problems. What will the legislation define as ‘knowingly’ permitting material to be placed on the system? Consider the situation where an ISP receives e-mail complaining of offensive content on one of its users’ web pages. Is the ISP knowingly permitting the material to be available if it does not immediately investigate the matter? What if the ISP incorrectly decides the material is not offensive?

Requiring ISPs to make decisions about what is or is not offensive, and making them liable for getting it wrong, is likely to lead to a stifling of free speech. It is not hard to imagine that the likely response of most ISPs will be to err on the side of caution, thereby impinging on the free expression of radical or extreme views.

Some of the problems of the DoCA framework also remain. The statement says that Commonwealth legislation ‘will not override State or Territory laws applying to people who place offensive or illegal material on the Internet.’ This appears to still leave open the problem of the standard for local content being set by the most restrictive jurisdiction, rather than the most permissive.

1998 Senate Select Committee on Information Technology

In early 1998 the Senate Select Committee on Information Technology was established and its first inquiry established was into self regulation in the information technology and communication industries. Although the focus of the inquiry’s terms of reference is on the industry codes of practice for television and radio, it also mentions that:

The transmission of information by new telecommunications technologies, especially those utilising the Internet, raises important questions concerning intellectual property, safeguarding community standards regarding content, and personal and professional privacy (SSCIT 1998a).

This committee is yet to present its report in relation to this matter. However a preliminary reading of Hansard from the inquiry’s Adelaide session, where it called witnesses from Electronic Frontiers Australia, suggests that at least certain members of the committee are still in favour of internet censorship and holding ISPs liable for internet content even where it is outside their direct control. (SSCIT 1998b: 484)

Conclusion

Censorship of the internet, despite its practical and ethical limitations, still appears to be an objective of both Federal and State governments. In a country without a constitutional protection of free speech, the internet offers the opportunity to be involved in a medium that allows and promotes both freedom of expression and freedom of access to information. Whilst the concerns of some elements of the community with regard to content should be respected, government enforced censorship is not the appropriate response.

Greater internet usage will hopefully serve to promote an appreciation of the value of free expression and enrich members of the community through access to a greater diversity of content than would be available in a sanitised and censored internet. The internet has been championed as the greatest tool for mass participatory democracy (Dalzell J in ACLU v Reno), and those who seek to regulate it should take the time to understand the nature of the internet and the opportunity it offers before bowing to the temptation to act simply to be seen as doing something.
 
Bibliography and related web sites

ACLU v Reno (US District Court Eastern District No. 96-963, 11 June 1996) Available : http://www.eff.org/pub/Censorship/Internet_censorship_bills/HTML/960612_aclu_v_reno_decision.html

Attorney-General’s Office 1997, Tough Laws for Offensive Internet Material [On-line], Commonwealth Attorney General’s Office. Available: http://www.law.gov.au/aghome/agnews/1997news/376.htm

Department of Communications and the Arts 1997, Principles for a Regulatory Framework for On-line Services in the Broadcasting Services Act 1992 [On-line], Department of Communications & Arts; available: http://www.dca.gov.au/nsapitext?MIval=dca_dispdoc&pathid=%2fpolicy% 2fframework%2ehtml

Electronic Frontiers Australia. http://www.efa.org.au

Electronic Freedom Frontiers. http://www.eff.org

Reno v ACLU (US Supreme Court No. 96–511, 26 June 1997) Available: http://www2.epic.org/cda/cda_decision.html

Senate Select Committee on Community Standards 1997, Report on Regulation of Computer On Line Services Part 3 [On-line], Parliament of Australia. Available: http://www.aph.gov.au/senate/committee/comstand_ctte/online3/index.htm

Senate Select Committee on Information Technologies (SSCIT) 1998a, Self Regulation in the Information and Communications Industries Inquiry: Background to the Inquiry, Parliament of Australia; available: http://www.aph.gov.au/senate/committee/advert/ it_inq.htm#SECTION 4

Senate Select Committee on Information Technologies (SSCIT) 1998b, Self Regulation in the Information and Communications Industries Inquiry: Hansard 27 April 1998, Parliament of Australia; available:
http://www.aph.gov.au/Hansard/senate/commttee/ s1688.pdf

Wood Royal Commission 1997,Volume V: The Pedophile Inquiry [On-line], NSW Government; available: http://www.nsw.gov.au/premiers/police_royal_commission/volume5.html

About the author:
Heath Gibson is a PhD student with the Department of Economics, Newcastle University. His research interests include economic aspects of the internet and information technology, as well as internet and information technology policy. He can be contacted via e-mail at randyte@hunterlink.net.au or visit his website at http://www2.hunterlink.net.au/~ddhrg/randyte.html

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