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.

Yesterday, Australian IT ran a story suggesting that Senator Stephen Conroy is backing away from the ‘mandatory’ in his mandatory Internet filtering plan. The story refers to statements that Senator Conroy made in a Senates Estimates hearing suggesting that filtering could be implemented with a voluntary industry code.

To explain what he (probably) meant, I have set out how filtering is governed by a voluntary industry code today, how this can be changed to make filtering mandatory, and what exactly is ‘voluntary’ about this industry code.

Status Quo

The Broadcasting Services Act 1992 (Cth) sch 5, which is presently in force and has been for years, already provides that ISPs must filter ‘prohibited content’ and ‘potential prohibited content’ hosted overseas notified to them by ACMA.

However, that filtering is subject to any industry code (a code made by a body or association that represents ISPs) that sets out a notification scheme for such content and procedures that ISPs will follow when notified of such content.

In other words, the Act provides that ACMA can direct ISPs to filter out ‘prohibited content’ and ‘potential prohibited content’ hosted overseas unless ISPs have made a code that says that they will deal with the content in some other way.

The Internet Industry Association (IIA) has made such a code. The most recent version is the Internet Industry Codes of Practice 2005, and it’s registered by ACMA here. The Code provides that ACMA will notify the content to makers of IIA Family Friendly Filters, and that ISPs will distribute those filters to customers who want them at no more than cost. Effectively, this creates an opt-in filtering system.

What Senator Conroy was saying was that there are two ways to introduce mandatory Internet filtering: change the legislation so that ISPs have to filter despite any code or change the code to require mandatory filtering.

Voluntary Codes are Mandatory

But if the industry code is voluntary, how can it provide for mandatory filtering? The answer is that compliance with a registered industry code is not really voluntary.

The code is voluntary in that the IIA (or some other body or association that represents ISPs) would have to voluntarily make it (as opposed to legislation which is simply imposed by Parliament). However, once it’s made and registered by ACMA, ACMA can direct an ISP to comply with it.

While failure to comply with the code is not itself an offence, failure to comply with a direction to comply with the code is. The penalty is $5,500 for each day of contravention for an individual and $27,500 for each day of contravention for a body corporate.

Effectively, compliance with the code is mandatory.

Conclusion

In this way, even though the code would be voluntarily made, ISPs could be required to comply with it, making filtering effectively mandatory. And even if compliance with the code were truly voluntary, filtering could still be mandatory from the perspective of the end user if enough ISPs chose to comply with it.

None of this is to suggest that the IIA is likely to change the code to mandate filtering. Indeed, given the opposition to filtering, it’s unlikely that ISPs would volunteer to implement filtering on a mandatory basis (especially with the overbroad definition of ‘prohibited content’ in the current Act).

Unfortunately, though, it’s a little too early to celebrate victory over mandatory filtering.

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.

While I have attempted to write this post without bias, I am opposed to any plan for mandatory filtering of online content.

This article was originally published on 16 April 2009 on newmatilda.com.

When Senator Conroy announced a live pilot to assess, among other things, the technical feasibility of filtering the ACMA blacklist of so-called ‘prohibited content’, he described the list as containing ‘child sexual abuse, rape, incest, bestiality, sexual violence, and detailed instruction in crime’.

So, when three copies of the list were posted on Wikileaks, people were surprised to find it included ordinary pornography, horror movie clips, anti-abortion sites, pro-euthanasia sites, and poker sites.

These are not errors. These sites are on the blacklist because the definition of ‘prohibited content’ under the Broadcasting Services Act 1992 (Cth) is much broader than people assume.

‘Prohibited content’ is not just illegal content. It includes all content classified RC and X 18+; content classified R 18+ that is not subject to a restricted access system (which I’ll explain later); and certain commercial content classified MA 15+ that is not subject to a restricted access system.

A ‘restricted access system’ is a system that requires a person seeking access to online content to apply for that access and either declare that he or she is at least 15, or prove that he or she is at least 18 (for example, by providing a valid credit card number), depending on whether the content is classified MA 15+ or R 18+. This is in much the same way that cinemas require proof of age for screenings of certain films.

It should be clear from the definition of ‘prohibited content’ that such content, as a class, is not illegal. MA 15+ and R 18+ movies screen in public cinemas after all. But what about X 18+ and RC content? Most people have some idea of the type of content that’s classified MA 15+ and R 18+, but don’t necessarily know what’s classified X 18+ and/or refused classification (RC).

Any real depiction of actual sexual activity is classified X 18+, so long as it doesn’t feature any RC content.

Content that’s refused classification (RC) is quite diverse. It includes depictions of sexual fetishes, like body piercing, application of substances such as candle wax, golden showers, bondage, spanking, and fisting.

It also covers extreme violence, sexual violence, child pornography, incest fantasies, and bestiality, as well as detailed instruction in crime and detailed instruction in the use of certain drugs.

The law regulating X 18+ and RC content in each state and territory of Australia is beyond the scope of this article. Suffice to say that in most places in Australia, possession of X 18+ and RC content is not an offence, though sale of X 18+ and RC content is. Possession of child pornography is, of course, illegal all over Australia.

So, if prohibited content, as a class, is not prohibited, what is it? The answer is that it’s merely a class of content in relation to which ACMA has certain powers when it’s found online.

Under the Broadcasting Services Act 1992 (Cth), when ACMA finds prohibited content hosted in Australia, it must issue a take-down notice directing the provider to cease providing the content to the public or, if it’s in relation to MA 15+ or R 18+ content, to make it subject to a restricted access system.

The provider must comply with the notice as soon as practicable, but no later than 6:00 pm on the next business day. Failure to do so can result in fines up to $11,000 per day (or $55,000 per day for corporations).

In addition to take-down notices, ACMA can also issue a service-cessation or link-deletion notice. These notices apply to live prohibited content (such as live video) and links to prohibited content respectively. They operate the same way, requiring the provider to cease providing the live content or the link.

When ACMA finds prohibited content hosted overseas, it notifies the content to the makers of the ‘Internet Industry Association Family Friendly Filters’ pursuant to an industry code that’s been registered under the Act. Under this code, each ISP provides at least one IIA Family Friendly Filter to users who want one, at cost.

IIA Family Friendly Filters are software packages approved by the IIA that users can optionally install on their systems to filter their Internet connections. It was from one of these filters, Integard, that the three ACMA blacklists posted on Wikileaks were extracted.

So, the regulation as it stands effectively creates an opt-in filtering regime for prohibited content hosted overseas, while at the same time making hosting prohibited content in Australia impractical, since providers have to remove such content when a notice is inevitably issued. Importantly, though, it’s not an offence to host or link to prohibited content in Australia. It’s only an offence to fail to comply with a notice from ACMA.

After Whirlpool was threatened with an $11,000 per day fine for linking to a blacklisted anti-abortion site, some people expressed concern that they’d be fined for linking to a site on a secret list, even though they had no way of knowing what was on that list.

As explained above, this isn’t the case. You could get a notice from ACMA if you host or link to prohibited content, but you won’t be fined unless you fail to comply with it. (Particular content may be illegal under state or territory law though. For example, possession and copying of RC content is illegal in Western Australia.)

Understanding that the ACMA blacklist is of prohibited content and that prohibited content is not just illegal content, it is clear why the sites mentioned earlier are on the list.

Ordinary pornography sites are on the list because they feature real depictions of sexual activity. Such content would be classified X 18+ or, if it featured a sexual fetish, RC.

A clip from a horror movie posted on YouTube is included because it would be classified R 18+. YouTube requires users to declare that they are at least 18 before viewing the clip, but in order for this site not to be listed as ‘prohibited content’ a restricted access system would have to require proof of age.

The anti-abortion sites on the list contain graphic images and video of abortions and aborted foetuses. The content is not subject to any restricted access system. Presumably, these images and videos would be classified R 18+ or RC.

The pro-euthanasia sites on the list provide detailed instruction in the use of drugs like Nembutal. Under current guidelines, such instruction is classified RC.

Finally, the list also contains some sites that don’t host prohibited content, like a Queensland dentist’s website and an astrology website. These sites were added to the list because, at the time, they had been defaced with prohibited content. The legislation makes no distinction between sites intentionally hosting prohibited content and those that have been defaced with such content.

But what about the poker sites? Poker sites, and other gambling websites, aren’t prohibited content under the Broadcasting Services Act 1992 (Cth), but they are ‘prohibited Internet gambling content’ under the Interactive Gambling Act 2001 (Cth).

Under that Act, ACMA has essentially the same powers in relation to overseas-hosted prohibited Internet gambling content as it does in relation to overseas-hosted prohibited content. That is, it notifies the content to makers of IIA Family Friendly Filters. This is why websites like PartyPoker.com end up on the blacklist too.

The most important thing about all of the above is that this is regulation that’s been in place since 2000. The current Government hasn’t clearly stated what it proposes to change.

Initially, the Government indicated it would mandate filtering of the existing ACMA blacklist. The Department of Communications website still says that ‘filtering would block content using a blacklist of prohibited sites … which are defined as “prohibited” under Australian legislation which has been in place since 2000’.

More recently, the Government said in a media release that it ‘has indicated an interest in [filtering] content that is Refused Classification’ (emphasis added). Senator Conroy made corresponding statements on SBS’s Insight and Triple J’s Hack programs. In the latter, he insisted that this has always been the case.

Even if that is the case, the nature of Internet filtering is such that any blacklist will have to be secret, mistakes will be made, and circumvention will be easy. And RC is a broad category that includes material that many Australians find unobjectionable.

Perhaps it would be better if each Australian could decide for him- or herself what is objectionable. This is how the Internet has always worked in Australia, and we haven’t descended into anarchy yet.

After ACMA issued a final link-deletion notice to EFA in relation to the AbortionTV website, it came out that the Classification Board had classified the relevant page R 18+. A number of people have suggested that you could still link to the AbortionTV website if you made the link subject to a restricted access system.

There are two problems with this under the current system in the Broadcasting Services Act 1992 (Cth) sch 7.

First, a restricted access system in relation to R 18+ content must require applicants for access to that content to provide proof of their age, not merely a declaration. Users aren’t going to hand out valid credit card numbers or copies of their birth certificates just to view links.

Second, the restricted access system must apply to the R 18+ content itself, and not to the link to the R 18+ content. That is, R 18+ content that’s not subject to a restricted access system is prohibited content. A link that’s subject to a restricted access system that points to R 18+ content that’s not subject to a restricted access system is still a link to prohibited content.

The test that ACMA applies when determining whether to issue a link-deletion notice is whether there is a link hosted in Australia that points to prohibited content. It’s not relevant whether the link itself is subject to a restricted access system or not.

I have provided details below.

Proof of Age

Under cl 14, ACMA has power to declare what is a ‘restricted access system’ in relation to particular classes of content. The most recent declaration is the Restricted Access System Declaration 2007.

Among seven requirements for restricted access systems in relation to R 18+ content, cl 13 provides

(1) Unless subsection 14(2) or (3) applies, the access-control system must verify that the applicant is at least 18 years of age by:

(a) requiring the applicant to provide evidence that the applicant is at least 18 years of age; and

(b) applying the risk analysis described in section 15.

So, a restricted access system in relation to R 18+ content must require proof of age, not merely a declaration. (Subsections 14(2) and (3) merely provide that the access-control system need not verify the applicant’s age more than once.)

What types of evidence? Clause 15(2) provides

The risk analysis must identify and assess the risk that a kind of evidence of age submitted to the access-control system could be held or used by:

(a) a person other than the person it purports to identify; or

(b) a person who is younger than the age which the form of evidence attributes to the person being identified.

Examples of sufficient evidence might include valid credit card numbers or copies of birth certificates, which, of course, users won’t be willing to provide to just any website.

Restricted Access Systems Don’t Relate to Links

Clause 20(1) states that content is ‘prohibited content’ if, among other alternatives,

(b) both:

(i) the content has been classified R 18+ by the Classification Board; and

(ii) access to the content is not subject to a restricted access system

From this, it’s clear that R 18+ content is prohibited content only if it’s not subject to a restricted access system. Division 5 then requires ACMA to issue link-deletion notices where

(a) end-users in Australia can access content using a link provided by a links service; and

(b) the content is prohibited content; and

(c) the links service has an Australian connection

So, the test is whether the content that is linked to is prohibited content, not whether the link itself is prohibited content.

If the content linked to were classified R 18+ and were subject to a restricted access system, then it wouldn’t be prohibited content and no link-deletion notice would be issued for the link.

However, if the content linked to were classified R 18+ but weren’t subject to a restricted access system, then it would be prohibited content and a link-deletion notice would be issued for the link. Here, it’s irrelevant whether the link itself is subject to any restricted access system.

In other words, the test for issuing a link-deletion notice is not whether you have a link that’s not subject to a restricted access system to R 18+ content. It’s whether you have a link to R 18+ content that’s not subject to a restricted access system.

There are only two scenarios for linking to the AbortionTV content that won’t risk a link-deletion notice. First, you can host the link itself outside of Australia. Then, the links service won’t have an ‘Australian connection’. Second, you can ask AbortionTV to require visitors to prove that they’re over 18. That won’t happen.

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.

While I have attempted to write this post without bias, I am opposed to any plan for mandatory filtering of online content.

Today, Electronic Frontiers Australia (EFA) announced that its host had received a final link-deletion notice from ACMA directing them to remove a link to a page on the AbortionTV website that EFA included in an article appropriately titled ‘Net censorship already having a chilling effect’.

EFA has since complied, replacing the original link with the following:

REDACTED. The original title of the page was “AbortionTV Pictures #6”, and can presumably be found using major search engines.

One of the ironies is that by issuing these notices, ACMA has probably driven more traffic to the AbortionTV website than any other organisation. If googling the text quoted above is too much trouble, people can always use the notice itself as a handy reference.

The other interesting thing about this notice, as Mark Newton points out, is that Andree Wright from ACMA testified at a Senates Estimates hearing on 23 February 2009 that the AbortionTV site was added to the blacklist because there was a substantial likelihood that it would be refused classification.

From memory, it was a page that contained no text, just pictures. The pictures were of aborted and dismembered foetuses. The graphic nature of the presentation without any contextualisation of the images meant that the images were judged on their own merits for their impact and their severity. We have kept a careful watching brief on the way the Classification Board has handled those types of images. On a previous occasion, we made a referral to the Classification Board on very similar material and it came back as ‘refused classification’. So we juxtaposed the two decisions and judged it on the images.

That meant that, at the time it was added to the blacklist, the content was ‘potential prohibited content’, which meant that the Classification Board had not actually classified the content.

This latest notice states that the content is ‘prohibited content’. That means that the Classification Board has now actually classified it, and the notice states that the classification is R 18+. Presumably, the Board classified this content after ACMA issued Whirlpool’s host an interim link-deletion notice.

Download: Sublime IP Final Link-Deletion Notice (298 KB)

Update: Nic Suzor pointed out that a summary of the Classification Board’s decision is available here.

In March 2009, ACMA issued a notice to Bulletproof Networks, who host the popular Whirlpool online discussion site. The notice required Bulletproof Networks to remove a link to a blacklisted anti-abortion site, and threatened an $11,000 per day fine if it failed to comply.

After this, some people expressed concern that they’d be fined for linking to a site on a secret blacklist. For example, this blog said

ACMA plans to fine any site that links to a blacklisted site up to A$11,000 per day. The catch is—doubtless you saw this coming, citizen—the blacklist’s contents are secret. If you link to its prohibited sites, you won’t know until ACMA fines you.

To explain why this isn’t the case, I have provided a summary of the regulation of prohibited content and potential prohibited content hosted in Australia found in the Broadcasting Services Act 1992 (Cth) sch 7.

I detailed the definition of ‘prohibited content’ and ‘potential prohibited content’ in a previous post that dealt with such content hosted overseas. Recapping briefly, ‘prohibited content’ is

• content rated RC or X 18+;
• content rated R 18+ and not subject to a restricted access system; and
• content rated MA 15+ provided by certain commercial services and not subject to a restricted access system.

When ACMA finds prohibited content or potential prohibited content, or links to such content, hosted in Australia, it issues the provider a notice that requires them to cease providing the content. The provider must comply with the notice by 6 pm the next business day or face fines up to $11,000 per day.

So it’s not an offence to host or link to such content in Australia. It’s only an offence to fail to comply with a notice from ACMA directing you to cease doing so. You won’t get a surprise fine.

Below, I provide a detailed look at the regulation.

Australian Connection

The first thing about the regulation of prohibited content and potential prohibited content in sch 7 is that it applies only to content services and hosting services that have an ‘Australian connection’. Clause 3 provides

(1) For the purposes of this Schedule, a content service has an Australian connection if, and only if:

(a) any of the content provided by the content service is hosted in Australia; or

(b) in the case of a live content service—the live content service is provided from Australia.

Note: A link is an example of content. If a link provided by a content service is hosted in Australia, the content service will have an Australian connection (see paragraph (a)).

(2) For the purposes of this Schedule, a hosting service has an Australian connection if, and only if, any of the content hosted by the hosting service is hosted in Australia.

Prohibited Content

The action taken by ACMA depends on whether the content is prohibited content or potential prohibited content. In relation to prohibited content, cl 47(1) provides

If, in the course of an investigation under Division 2, the ACMA is satisfied that:

(a) content hosted by a hosting service provider is prohibited content; and

(b) the relevant hosting service has an Australian connection;

the ACMA must:

(c) if:

(i) the content does not consist of an eligible electronic publication; and

(ii) the content has been classified RC or X 18+ by the Classification Board;

give the hosting service provider a written notice (a final take-down notice) directing the hosting service provider to take such steps as are necessary to ensure that a type A remedial situation exists in relation to the content

Essentially, a ‘type A remedial situation’ is one in which the provider no longer provides the content. Since the content has actually been classified by the Classification Board, the notice to stop hosting the content is final.

(d) if:

(i) the content does not consist of an eligible electronic publication; and

(ii) the content has been classified R 18+ or MA 15+ by the Classification Board;

give the hosting service provider a written notice (a final take-down notice) directing the hosting service provider to take such steps as are necessary to ensure that a type B remedial situation exists in relation to the content

A ‘type B remedial situation’ is essentially one in which the provider either no longer provides the content or makes the content subject to a restricted access system. This is because content classified R 18+ or MA 15+ isn’t prohibited content if it’s subject to a restricted access system.

(e) if:

(i) the content consists of an eligible electronic publication; and

(ii) the content has been classified RC, category 2 restricted or category 1 restricted by the Classification Board;

give the hosting service provider a written notice (a final take-down notice) directing the hosting service provider to take such steps as are necessary to ensure that a type A remedial situation exists in relation to the content.

The different classification level here matches the different definition of prohibited content applicable where the content is an eligible electronic publication, as explained in my previous post. Briefly, an ‘eligible electronic publication’ is an electronic version (or an audio recording) of a book, magazine, or newspaper that is or was available to the public in Australia.

Potential Prohibited Content

In relation to potential prohibited content, the procedure is essentially the same, except that the notice is only an interim notice until the content is actually classified by the Classification Board. Clause 47(2) provides

If:

(a) in the course of an investigation under Division 2, the ACMA is satisfied that:

(i) content hosted by a hosting service provider is potential prohibited content; and

(ii) the relevant hosting service has an Australian connection; and

(b) the ACMA is satisfied that, if the content were to be classified by the Classification Board, there is a substantial likelihood that:

(i) if the content does not consist of an eligible electronic publication—the content would be classified RC or X 18+; or

(ii) if the content consists of an eligible electronic publication—the content would be classified RC or category 2 restricted;

the ACMA must:

(c) give the hosting service provider a written notice (an interim take-down notice) directing the provider to take such steps as are necessary to ensure that a type A remedial situation exists in relation to the content until the ACMA notifies the hosting service provider under subclause (4) of the Classification Board’s classification of the content; and

(d) apply to the Classification Board under clause 22 for classification of the content.

Type A and type B remedial situations are the same as for prohibited content, so the effect of the above is that the provider must cease providing the content until it’s actually classified by the Classification Board.

Clause 47(3) continues

If:

(a) in the course of an investigation under Division 2, the ACMA is satisfied that:

(i) content hosted by a hosting service provider is potential prohibited content; and

(ii) the relevant hosting service has an Australian connection; and

(b) the content does not consist of an eligible electronic publication; and

(c) the ACMA is satisfied that, if the content were to be classified by the Classification Board, there is a substantial likelihood that the content would be classified R 18+ or MA 15+;

the ACMA must:

(d) give the hosting service provider a written notice (an interim take-down notice) directing the provider to take such steps as are necessary to ensure that a type B remedial situation exists in relation to the content until the ACMA notifies the hosting service provider under subclause (4) of the Classification Board’s classification of the content; and

(e) apply to the Classification Board under clause 22 for classification of the content.

The effect here is that the provider must either cease providing the content or make it subject to a restricted access system until the content is actually classified by the Classification Board.

Actual Classification

Once the Classification Board classifies the content (which used to be potential prohibited content), ACMA must notify the provider and, if the classification is such that the content is now prohibited content, issue a final take-down notice.

Clause 47(4) provides

If, in response to an application made as required by subclause (2) or (3), the ACMA is informed under paragraph 23(b) of the classification of particular content, the ACMA must:

(a) give the relevant hosting service provider a written notice setting out the classification; and

(b) in a case where:

(i) the content does not consist of an eligible electronic publication; and

(ii) the effect of the classification is that the content is prohibited content because it has been classified RC or X 18+ by the Classification Board;

give the hosting service provider a written notice (a final take-down notice) directing the provider to take such steps as are necessary to ensure that a type A remedial situation exists in relation to the content; and

(c) in a case where:

(i) the content does not consist of an eligible electronic publication; and

(ii) the effect of the classification is that the content is prohibited content because it has been classified R 18+ or MA 15+ by the Classification Board;

give the hosting service provider a written notice (a final take-down notice) directing the provider to take such steps as are necessary to ensure that a type B remedial situation exists in relation to the content; and

(d) in a case where:

(i) the content consists of an eligible electronic publication; and

(ii) the effect of the classification is that the content is prohibited content because it has been classified RC, category 2 restricted or category 1 restricted by the Classification Board;

give the hosting service provider a written notice (a final take-down notice) directing the provider to take such steps as are necessary to ensure that a type A remedial situation exists in relation to the content.

Since the content has now actually been classified by the Classification Board, the notices are all final.

Type A and Type B Remedial Situations

I have briefly summarised what type A and type B remedial situations are, but the specific wording of the definitions may be important. Clause 47(6) provides

For the purposes of the application of this clause to a hosting service provider, a type A remedial situation exists in relation to content at a particular time if:

(a) the provider does not host the content; or

(b) the content is not provided by a content service provided to the public (whether on payment of a fee or otherwise).

And cl 47(7) provides

For the purposes of the application of this clause to a hosting service provider, a type B remedial situation exists in relation to content at a particular time if:

(a) the provider does not host the content; or

(b) the content is not provided by a content service provided to the public (whether on payment of a fee or otherwise); or

(c) access to the content is subject to a restricted access system.

Compliance

Clause 53 provides

(1) A hosting service provider must comply with an interim take-down notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.

(2) A hosting service provider must comply with a final take-down notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.

Clause 53(6) provides that subclauses (1) and (2) are designated content/hosting service provider rules.

Criminal Offence

Clause 106 then provides

(1) A person commits an offence if:

(a) the person is a designated content/hosting service provider; and

(b) the person engages in conduct; and

(c) the person’s conduct contravenes a designated content/hosting service provider rule that applies to the person.

Penalty: 100 penalty units.

(2) A person who contravenes subclause (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

Since the Crimes Act 1914 (Cth) s 4AA(1) defines ‘penalty unit’ as $110 and s 4B(3) provides that the maximum penalty is five times the specified amount when the person convicted is a body corporate, the maximum penalty here is $11,000 per day for an individual and $55,000 per day for a body corporate.

Civil Penalty

Clause 106 discussed above creates a criminal offence that requires the prosecution to prove its case to the criminal standard (that is, beyond reasonable doubt). In addition to cl 106, cl 107 provides

(1) A person must not contravene a designated content/hosting service provider rule if:

(a) the person is a designated content/hosting service provider; and

(b) the rule applies to the person.

(2) Subclause (1) is a civil penalty provision.

(3) A person who contravenes subclause (1) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.

Section 205F(1) of the Act provides that where a person contravenes a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty on application by ACMA. This is called a ‘civil penalty order’.

The most important thing about civil penalty orders is that the Court will apply the civil rules of evidence and procedure during the hearing, as provided by s 205K. This means that the Court has to be satisfied of the contravention only to the civil standard (that is, on the balance of probabilities).

Section 205F(3) lists the factors relevant to determining the amount of the penalty, but sub-s (4) provides that the amount cannot be higher than the maximum penalty for the corresponding criminal offence.

Finally, s 205L provides such an order cannot be made against a person if that person has been previously found guilty of the corresponding criminal offence. Though, s 205N provides that a person can be convicted of the corresponding criminal offence after a civil penalty order has been made.

Links Services and Live Content Services

The regulation summarised above is the general regulation. There are separate provisions dealing with links services and live content services, which I won’t set out in as much detail since they operate much the same way.

A ‘links service’ is merely a content service that provides one or more links to content. Under pt 3 div 5, ACMA must issue a link-deletion notice if

(a) end-users in Australia can access content using a link provided by a links service; and

(b) the content is prohibited content or potential prohibited content; and

(c) the links service has an Australian connection.

Essentially, this means that ACMA will issue a link-deletion notice if a link hosted in Australia allows end-users in Australia to access prohibited content or potential prohibited content irrespective of where that content is actually hosted.

Relevantly, the definition of ‘content service’ in cl 2 explicitly excludes Internet search engines and directories, so long as they don’t specialise in prohibited content or potential prohibited content.

A ‘live content service’ is a content service that provides live content, unsurprisingly. Under pt 3 div 4, ACMA must issue a service-cessation notice if

(a) live content provided by a live content service is prohibited content or potential prohibited content; and

(b) the live content service has an Australian connection.

Both link-deletion notices and service-cessation notices operate fundamentally the same way as take-down notices. That is, a final or interim notice is issued depending on whether the content has actually been classified by the Classification Board and the provider must comply as soon as practicable but no later than 6 pm the next business day or risk a fine or civil penalty.

Maintaining Our Implied Freedoms

Finally, because Parliament had a sense of humour, cl 121(1) provides

This Schedule does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

We don’t have a right to freedom of expression in Australia. We only have a limited implied freedom to communicate on political matters, which is much narrower in scope:

Conclusion

While it’s not an offence to host or link to prohibited content or potential prohibited content in Australia, the effect of the regulation is that prohibited content and potential prohibited content isn’t hosted in Australia. No one will invest time or money in such a site, only to be required to take it down when ACMA inevitably issues a notice.

However, the definition of ‘Australian connection’ is such that Australian-controlled sites can still provide prohibited content and potential prohibited content to Australians, so long as all of the content that the sites provide is hosted outside Australia.

As explained in my previous post dealing with overseas-hosted prohibited content and potential prohibited content, it’s not an offence for Australians to view such sites, so long as the content in those sites isn’t illegal under some other law.

Update: You can see an example of a final link-deletion notice here.

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.

While I have attempted to write this post (except the cartoon) without bias, I am opposed to any plan for mandatory filtering of online content.

There’s been some confusion surrounding the government’s use of the phrase ‘prohibited content’ to describe what’s on the ACMA blacklist.

The phrase suggests content that is illegal to view or possess, and that misconception is furthered by Senator Stephen Conroy’s constant references to the contents of the ACMA blacklist as being mostly child pornography and the ‘worst of the worst’.

In fact, ‘prohibited content’ is a legislative phrase defined in the Broadcasting Services Act 1992 (Cth) sch 7 cl 20. Briefly, it is

• content rated RC or X 18+;
• content rated R 18+ and not subject to a restricted access system; and
• content rated MA 15+ provided by certain commercial services and not subject to a restricted access system.

When ACMA finds prohibited content hosted overseas, it adds it to its blacklist. (The procedure dealing with Australian hosted content is different, and I don’t propose to deal with it in this post. I deal with it here.)

Under the present system, the ACMA blacklist is provided to the makers of IIA Family Friendly Filters. ISPs have an obligation to provide those filters to their customers at cost on an opt-in basis or face fines of up to $27,500 per day.

No other (relevant) legal consequences flow from content hosted overseas being ‘prohibited content’. Thus, it’s not illegal to view, distribute, or provide access to online content merely because it’s prohibited content.

The caveat is that accessing or distributing certain content is illegal for other reasons. The most obvious example is that it’s illegal to produce, disseminate, or possess child pornography.

Below, I have posted a detailed look at the law that governs what ends up on the ACMA blacklist and what ISPs must do about content on that blacklist.

What Is Prohibited Content?

The general definition of ‘prohibited content’ is found in the Broadcasting Services Act 1992 (Cth) sch 7 cl 20(1). That subclause provides that generally content is ‘prohibited content’ if

(a) the content has been classified RC or X 18+ by the Classification Board

In other words, all content refused classification or rated X 18+ by the Classification Board is prohibited content.

(b) both:

(i) the content has been classified R 18+ by the Classification Board; and

(ii) access to the content is not subject to a restricted access system

Content rated R 18+ by the Classification Board is prohibited content unless access to it is subject to a restricted access system.

Under cl 14, ACMA has power to declare what is a ‘restricted access system’ in relation to particular classes of content. The most recent declaration is the Restricted Access System Declaration 2007.

It provides guidelines that specify risk analysis factors that content providers must consider when assessing whether particular evidence is sufficient to verify the age of a person applying to access the content. (See here for more information.)

(c) all of the following conditions are satisfied:

(i) the content has been classified MA 15+ by the Classification Board;

(ii) access to the content is not subject to a restricted access system;

(iii) the content does not consist of text and/or one or more still visual images;

(iv) access to the content is provided by means of a content service (other than a news service or a current affairs service) that is operated for profit or as part of a profit-making enterprise;

(v) the content service is provided on payment of a fee (whether periodical or otherwise);

(vi) the content service is not an ancillary subscription television content service; or

(d) all of the following conditions are satisfied:

(i) the content has been classified MA 15+ by the Classification Board;

(ii) access to the content is not subject to a restricted access system;

(iii) access to the content is provided by means of a mobile premium service.

These last two paragraphs essentially provide that content classified MA 15+ by the Classification Board provided by certain commercial services is prohibited content unless access to it is subject to a restricted access system.

What If the Content Isn’t Classified?

Each of the subclauses above refers to content having been classified by the Classification Board. Since most Internet content wouldn’t be so classified, cl 21(1) provides:

For the purposes of this Schedule, content is potential prohibited content if:

(a) the content has not been classified by the Classification Board; and

(b) if the content were to be classified by the Classification Board, there is a substantial likelihood that the content would be prohibited content.

ACMA’s relevant powers in relation to content hosted overseas are the same with respect to prohibited content and potential prohibited content.

Eligible Electronic Publications

The definition of ‘prohibited content’ in cl 20(1) does not apply to eligible electronic publications. An ‘eligible electronic publication’ is an electronic version (or an audio recording) of a book, magazine, or newspaper that is or was available to the public in Australia.

A more constrained definition of ‘prohibited content’ is provided in cl 20(2) in relation to eligible electronic publications:

For the purposes of this Schedule, content that consists of an eligible electronic publication is prohibited content if the content has been classified RC, category 2 restricted or category 1 restricted by the Classification Board.

The definition of ‘potential prohibited content’ in cl 21(1) is correspondingly constrained in relation to eligible electronic publications by cl 21(2):

… content is not potential prohibited content if:

(a) the content consists of an eligible electronic publication; and

(b) the content has not been classified by the Classification Board; and

(c) if the content were to be classified by the Classification Board, there is no substantial likelihood that the content would be classified RC or category 2 restricted.

Why, for example, an electronic version of a printed newspaper should be treated differently than an online-only news website is not clear.

What’s Prohibited about Prohibited Content?

I’m only dealing with content hosted overseas in this post. And sch 5 cl 40(1) answers this question in relation to such content:

If, in the course of an investigation under Division 2 of Part 3 of Schedule 7, the ACMA is satisfied that Internet content hosted outside Australia is prohibited content or potential prohibited content, the ACMA must:

(a) if the ACMA considers the content is of a sufficiently serious nature to warrant referral to a law enforcement agency (whether in or outside Australia)—notify the content to: [police or an authorised person or body]

The above is fairly straightforward. The next paragraph is the most important.

(b) if a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2)—notify the content to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be

Part 5 authorises bodies and associations that represent ISPs to make codes dealing with certain matters. Those codes may be registered by ACMA. If there is no code, ACMA can determine a standard (basically a code, except that it’s made by ACMA). Why is this code or standard so important?

(c) if paragraph (b) does not apply—give each Internet service provider known to the ACMA a written notice (a standard access-prevention notice) directing the provider to take all reasonable steps to prevent end-users from accessing the content.

In other words, ACMA already has the power to direct ISPs to block prohibited content and potential prohibited content, but only so long as there is no code or standard under pt 5 dealing with the cl 60(2) matters.

What Are cl 60(2) Matters?

Those matters are found in paras (c) and (d) of cl 60(2), which provides

The Parliament intends that, for the Internet service provider section of the Internet industry, there should be:

(a) an industry code or an industry standard that deals with; or

(b) an industry code and an industry standard that together deal with;

each of the following matters:

(c) the formulation of a designated notification scheme;

(d) subject to subclause (8A), procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 40(1)(b) of this Schedule or clause 46 (for example, procedures to be followed by a particular class of Internet service providers for the filtering, by technical means, of such content).

(Subclause (8A) simply provides that the Minister can declare that filtering is not viable in relation to particular devices, like mobile phones.)

In other words, cl 60(2) allows a code or standard to provide that, instead of ACMA issuing a standard access prevention notice, some other procedure will be followed when ACMA finds prohibited content or potential prohibited content hosted overseas.

The Internet Industry Association (IIA) has made such a code. The most recent version is the Internet Industry Codes of Practice 2005, and it’s registered by ACMA here.

Clause 19 of this Code provides an opt-in scheme, whereby ISPs provide IIA Family Friendly Filters at cost to customers who request them. This effectively replaces the access-prevention notice regime, which would otherwise be mandatory, with an opt-in system.

What Are ISPs’ Obligations?

If there were no registered code or standard dealing with the cl 60(2) matters, ACMA would have the power to issue access-prevention notices. Clause 48(1) then provides

An Internet service provider must comply with a standard access-prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.

However, ACMA doesn’t have that power because there is a code dealing with the cl 60(2) matters. Compliance with that code is effectively mandatory. Clause 66 provides:

(1) If:

(a) a person is a participant in a particular section of the Internet industry; and

(b) the ACMA is satisfied that the person has contravened, or is contravening, an industry code that:

(i) is registered under this Part; and

(ii) applies to participants in that section of the industry;

the ACMA may, by written notice given to the person, direct the person to comply with the industry code.

(2) A person must comply with a direction under subclause (1).

Clause 72 similarly provides that a person must comply with any applicable ACMA standard.

What Are the Penalties?

Clause 79 provides that the clauses requiring compliance with access-prevention notices, codes, and standards are online provider rules. Clause 82 then provides

(1) A person is guilty of an offence if:

(a) an online provider rule is applicable to the person; and

(b) the person engages in conduct; and

(c) the person’s conduct contravenes the rule.

Penalty: 50 penalty units.

(2) In this clause:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

The Crimes Act 1914 (Cth) s 4AA(1) defines ‘penalty unit’ as $110. And s 4B(3) of that Act provides that the maximum penalty is five times the specified amount when the person convicted is a body corporate. Thus, the maximum penalty here is $5,500 for an individual and $27,500 for a body corporate.

Finally, cl 86 provides

A person who contravenes clause 82 or subclause 83(4) is guilty of a separate offence in respect of each day (including the day of a conviction for the offence or any later day) during which the contravention continues.

In other words, the maximum penalty for failing to comply with an access prevention notice, code, or standard is $5,500 for each day of contravention for an individual and $27,500 for each day of contravention for a body corporate.

Conclusion

Presently, the obligations of ISPs in relation to the ACMA blacklist of prohibited content and potential prohibited content hosted overseas end with provision of IIA Family Friendly Filters at cost to customers who request them.

It’s also notable that the existing legislation could provide for mandatory filtering if the existing code is, at least to the extent that it deals with the cl 60(2) matters, removed. (Though, that’s unlikely given ISPs’ resistance to mandatory filtering.)

I hope that explains how the ACMA blacklist works in relation to overseas content. In a future post, I’ll cover ACMA’s powers in relation to prohibited content and potential prohibited content hosted in Australia.

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.

While I have attempted to write this post without bias, I am opposed to any plan for mandatory filtering of online content.