On 20 June 2009, a young woman, Neda Agha-Soltan, was shot and killed during the Iranian election protests. Her death was captured on video, and spread virally on the Internet, becoming a rallying cry for the Iranian protests.
Given the notorious attempts by the Iranian government to censor the protests, both online and in the media, I thought it would be fitting to test Senator Stephen Conroy’s assertions that the Government’s proposed mandatory Internet filter was unlike the censorship that occurs in Iran and under other undemocratic regimes.
I submitted the following to ACMA:
I am an Australian resident. I believe the content at the following links is prohibited content or potential prohibited content hosted outside Australia within the meaning of the Broadcasting Services Act 1992 (Cth).
[URL 1: Boing Boing post with embedded YouTube video showing the death of Neda Agha-Soltan and associated commentary.]
[URL 2: YouTube video showing the death of Neda Agha-Soltan.]
[URL 3: YouTube video showing another angle of the death of Neda Agha-Soltan.]Each contains graphic video, apparently real, of a young girl shot in the chest and bleeding to death over the course of a couple of minutes.
The first link has no restrictions for viewing the video (but contains a textual warning). The second two links require registration and a declaration of date of birth (and also contain textual warnings).
The videos document the recent violence in Iran.
I have removed the URLs for legal reasons. If you haven’t already seen these videos, they’re easy enough to find (but be warned: they are graphic).
Today, 64 days later, I received a notice from ACMA confirming that the content was prohibited content.
As part of the ACMA’s investigation of the complaint, it applied to the Classification Board for classification of the content concerned. As a result of the Classification Board’s decision, and as the content is not subject to a restricted access system, it is prohibited content under clause 20(1)(b) of Schedule 7 to the Broadcasting Services Act 1992 (the Act).
The videos are certainly graphic, and I can see why there would be demand for a service that allowed people to avoid content such as this, if that is their individual choice.
However, under both the current and the proposed systems of Internet censorship in Australia, the Classification Board’s decision is binding, to varying degrees, on individuals. For instance, now, Australian-hosted sites cannot link to these videos.
Not the Classification Board or ACMA’s Fault
The Guidelines for the Classification of Films and Computer Games provide that the Classification Board classify violent content with an impact higher than ‘strong’ R 18+ and that the Classification Board refuse classification of content that contains gratuitous, exploitative, or offensive depictions of cruelty or real violence that are very detailed or that have a high impact.
The relevant video certainly does have a high impact, and I don’t see a problem with the Classification Board’s decision. It is reasonable.
Similarly, ACMA has an obligation to blacklist (ie, add to the list of websites containing prohibited content, which is distributed to makers of IIA Family Friendly Filters) any site hosting prohibited content overseas. ACMA has no discretion not to blacklist content that meets the statutory definition of prohibited content.
You can, however, blame the people responsible for the law: the members of parliament responsible for passing this law originally, and the members of parliament today responsible for not repealing it.
Not Refused Classification
Although the position was ambiguous initially (and is arguably still uncertain), Senator Stephen Conroy has now stated that the Government wants to constrain mandatory Internet filtering to content that is refused classification. (Though, refused classification content is much broader than his statements suggest.)
The notice that I received from ACMA indicates that the content was classified R 18+. It made reference to the Broadcasting Services Act 1992 (Cth) sch 7 cl 20(1)(b), which relates to R 18+ content that is not subject to a restricted access system.
Although it’s implied, it’s not absolutely clear that the classification for each of the three submitted URLs was the same.
Because this content was classified R 18+ and not refused classification, this content would not be subject to mandatory filtering under a regime that mandated filtering only of content that has been refused classification.
Banned?
The proposed mandatory Internet filtering will only apply to content hosted outside of Australia. Presently, prohibited content hosted outside of Australia is added to a blacklist that you can opt into. Under the proposed system, the subset of prohibited content that is refused classification content would be blocked mandatorily.
However, none of this applies to sites hosted in Australia. ACMA can still issue a take-down, or link-deletion notice, to any site hosting, or linking to, R 18+ content that is not subject to a restricted access system (or other prohibited content). And you can be fined $11,000 per day if you don’t comply with the notice by 6:00 pm the next business day.
There are also state laws that are relevant. For example, the Classification (Publications, Films and Computer Games) Act 1995 (SA) s 75D makes it an offence to make available or supply R 18+ content using an online service, unless the content is subject to a restricted access system. So, it appears that it’s illegal for South Australians to link to this video (unless they comply with the very onerous restricted access system requirements). The law in your state or territory may vary.
What’s the Point?
The point wasn’t to criticise the Classification Board’s judgment or ACMA’s judgment. They’re merely fulfilling their obligations under the law. The point was to demonstrate how Australian classification law can affect your ability to view significant material because it is disturbing.
It also illustrates the hopeless of trying to suppress content on the Internet. It took 64 days for ACMA to respond to the complaint, and it’ll take even longer before the content is actually added to the IIA Family Friendly Filters.
Of course, it’s trivial to bypass IIA Family Friendly Filters, and it’ll be just as trivial to bypass any mandatory filter. And there are many sources for this particular content, other than the three URLs that ACMA has now blacklisted.
The final and most important point is that all of this is merely anecdotal. The treatment of this particular content is irrelevant. The question is whether you want to decide what content is significant, and what content is too disturbing, for yourself. Or would you like the Classification Board’s decision to be binding on you?
This post is not intended as legal advice. I make no representations whatsoever as to its quality, and will not be liable for any loss, injury, or damage howsoever resulting from it. Seek independent legal advice.
{ 10 comments… read them below or add one }
For what it’s worth, ACMA told me that exactly the same video was banned as far back as 8 July 2009.
This is the answer to any Government-weenies who claim that the Government isn’t interested in political censorship. Absolute bollocks. Australia’s censorship system is so messed up on so many levels that it can’t help but to hoover-up political material, regardless of whether or not that’s what politicians intend.
The “Biggles9″ (Illingsworth) case in Qld has shown that someone can be criminally prosecuted for making child abuse material available even if the Classification Board says it’s rated MA. The “Peaceful Pill” euthanasia classification decision shows that even RC material is legal to own and view, and is no way associated with child abuse.
Put all these examples together and you end up with a big mess, but one thing is very clear: Any argument that says Australians broadly support the existing classification system can only be made with caveats, and the Government has no intrinsic moral authority to decide what should and shouldn’t be banned.
– mark
@Mark Newton: I agree with the sentiment, and in particular with:
It doesn’t matter whether the Government intends to censor political content (or content to which reasonable Australians don’t object), as Senator Conroy insists it doesn’t. If it passes laws that have that practical effect, the rest doesn’t really matter.
I think the logic behind this decision is not necessarily unsound. I mean, would you really want your 6 year old kid stumbling upon that particular video? That once again raises the question of who is responsible for internet supervision – the State, by means of a blanket ban for everyone (ie a mandatory filter) that would, in theory, solve the problem; or you could ask what the hell is your 6 year old doing surfing the net unsupervised anyway?
The politicians just go for what they’ve always done – regulating and banning – historically, we are a nation of regulations and bans on everything. It’s just our way of making problems go away without having to think about fixing them too much, where having to think and debate would require significant downtime from watching the footie and drinking another tinnie. Except in this case the proposed regulation is just ludicrously unworkeable and a total waste of more than $100 million of “our” money (think about it: if the budget for this filter is $130 million, then every taxpayer in this country is contributing around $8 to creating this filter which is going to be a total failure). In my opinion, that totally sux.
“I think the logic behind this decision is not necessarily unsound.” – Daniel
There are a multitude of angles to see the decision as. One is that (almost) nobody would actually want to watch something like that, so what difference does it make if it is banned. But one overriding angle is that if we allow the government to ban everything ‘bad’ that everyone agrees on, where do we draw the line? We can’t, as many people have different interpretations of ‘bad’ content. One person may be shocked and horrified at a T&A movie, while another will be bored and want something more exciting. One may think that all religions are cults and thus evil, while others (quite rightly) are entitled to believe in whatever they want (as long as they don’t tell us we are going to hell if we don’t subscribe to their beliefs).
Your comment is very true in that governments typically see the only solution is to ban things to make problems go away.
Also, the censorware will become screwed up when angry Australians want to tear it down, meaning that ISPs will have to purchase additional censorware and invest in additional maintenance costs, all of which taxpayers and ISP customers will have to fork out. If the government is serious about censoring whatever they don’t like (and evidently they do otherwise it would never have come this far), i easily see this policy going into the $200m figure and even higher depending on whether they concede defeat or not. Whirlpool states that there are currently 225 ISPs in Australia, and with all of those ISPs being required to censor the internet, that is a lot of money on something that is useless, unwanted, and downright dangerous to a democratic society.
@Daniel:
I don’t have a problem with the Classification Board’s decision in itself or ACMA’s decision in itself either. This is graphic content, and there’s nothing wrong with labelling it accordingly. I only have a problem with the consequences of those decisions, which lead to varying restrictions for everyone (not just six year olds).
@Ben:
It would be difficult to find someone who watched content like this for pleasure. But of course this content wasn’t distributed to provide entertainment. It was distributed so that the world could see, in graphic detail, what it means when a newsreader says, ‘A protester was killed in Iran today…’
@Daniel:
The logic is sound, in an environment where the standards appropriate for a 6 year old aren’t applied to (say) 50 year olds.
But a wider question I’d ask is this: Is it the Government’s place to make decisions about what’s appropriate for a 6 year old?
It’s a serious question. Other countries don’t have Government authorities making these kinds of judgements. Are our parents uniquely unqualified to make those kinds of decisions for themselves? Our our 6 year olds uniquely vulnerable? What is it about Australian families that’s so different from (say) British families which necessitates the Government stepping in to separate Internet content into age-buckets?
There’s plenty of existence-proof of other jurisdictions full of eminently successful families devoid of such Government “assistance.” So what’s the justification for mandating it here?
(would, for example, CyberPatrol suffer if the Australian Government wasn’t sending them URLs?)
– mark
What 6 year old child uses the internet without a parent? I understand what you’re getting at, but to think that a child as young as that, or even up to 10 or so, is going to be ‘exposed’ to content like that by accident is a bit ridiculous.
But the problem with the proposed filter is that it’s mandatory for all adult Australians. If this were an opt-in filter, there wouldn’t be a problem with political videos like this one being on the blacklist. And it wouldn’t really be a problem that the government was deciding what was appropriate for a six-year-old, because the parents could choose to use the filter or not (or to use an alternative, whether more or less restrictive).
As long as adults cannot opt-out, this isn’t a debate about online safety for children.
Interestingly I submitted the same video which appeared on a news.com.au website (and still does) They said it wasn’t prohibited content. What gives?
I assume a different reviewer assessed the content in my case. Alternatively, ACMA may have reviewed their internal policies since I submitted this video. It’s not really surprising that some of these decisions appear arbitrary, though…
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