[ Reposted from the EFA site. ]

Today EFA's hosting provider received a Final Link Deletion Notice from ACMA, requiring us to remove a link to a page that contains images of aborted foetuses from our website. We have complied with this notice because it exposes our host to fines of up to $11,000 per day that we do not remove the link.

The ACMA advises that the page we linked to has been classified by the Classification Board as being R18+ content. A summary of the classification decision is available at the OFLC site, classification Number 56671019. The description of the content we received was that it contained “gratuitous, exploitative and offensive depictions of violence, which have a very high degree of impact.”

In our original post, we explained that we were concerned that the ACMA blacklist included not just child sexual abuse material, but also political speech. We believe that the page we linked to, hosted at AbortionTV.com, was political speech. It is a set of images of aborted foetuses, designed to shock, aimed at furthering the organisation's messages that women should not terminate pregnancies and that abortion should be criminalised.

Our linking to the AbortionTV page, however, was not to support this message. We used the page as an example of over-blocking of political speech by the current and proposed censorship regimes. We are extremely concerned that Australian websites are currently being required to remove links to what we believe is legitimate political speech, even where that speech is offensive. We are also extremely concerned that, if the Government's plan for mandatory ISP filtering goes ahead, such websites will be blocked without any transparency or avenue for review.

We believe that linking to the blocked page was essential to communicate our message. We believe that Australia's current and proposed censorship regimes result in the illegitimate blocking of political speech. To illustrate this point, we need to link to what we believe to be an example of a page that has been illegitimately blocked.

Linking to the actual blocked page is important. We could have described the content of the page, but we believe that this would not have been sufficient to let Australians make up their own mind about whether the current or proposed censorship regimes are appropriate. We responded directly to comments by the Minister and others in the current debate that material on the ACMA blacklist is 'illegal' material, and that the proposed filter will not block any political speech. The images on the linked page, being R18+ rated political speech, clearly demonstrate that both of these claims are false. While they may be offensive, they are political in nature and they are certainly not illegal to possess. No amount of textual description would have been as effective at demonstrating this point.

We believe we may have a colourable claim under the implied freedom of political communication. Clause 121(1) of Schedule 7 of the Broadcasting Services Act 1992 (Cth) (BSA) explicitly provides that the takedown scheme “does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.”

The High Court considered the scope of the implied guarantee of political speech in a series of cases in the 1990s. The test developed in Lange v ABC means that laws that laws that “effectively burden freedom of communication about governmental or political matters, either in its terms, operation or effect” must be “reasonably appropriate and adapted to serve a legitimate end”, the fulfillment of which is compatible with the constitution.

It is apparent that Schedule 7 of the BSA “effectively burden[s] freedom of communication about governmental or political matters”, as demonstrated by this takedown notice. We might be able to assume that Schedule 7 of the BSA generally serves a legitimate purpose. However, whether it is 'reasonably appropriate and adapted' to that purpose is not clear. In Levy v Victoria, a restriction on protests against duck hunting was appropriate because it was adapted to avoid physical harm to members of the public in hunting areas. This is not such a case. Any potential harm of somebody finding the publicly available R18+ rated images through a link on our website would seem to be far outweighed by the detrimental effect that the takedown notice has on our ability to engage in informed debate about the legitimate scope of our current and proposed censorship regimes.

All this is complicated by the fact that EFA cannot directly appeal this decision. Because EFA does not host its own websites, our provider is the “links service provider” within the meaning of Schedule 7. Under cl 113(5), an application can be made for a review to the Administrative Appeals Tribunal, but it “may only be made by the links service provider concerned” (cl 113(6)).

We are currently investigating potential means of appealing this decision. As Colin already mentioned, this is certainly a worrying example of the dangers of Australia's current and proposed censorship regimes.

(Image uploaded by Wild to OCAU)

So it appears that the ACMA blacklist has been leaked (scoop by Asher Moses and Wikileaks). This is the secret list of sites that have been deemed to be prohibited by the communications regulator, and are slated to be blocked by Senator Conroy's proposed filter. Senator Conroy has now said that this leaked list is not the ACMA blacklist. Conroy did confirm that the list shared some URLs with the ACMA list, but had many others that were not added by ACMA.

This suggests that the leaked list may be a combined filtering vendor's list, containing parts of the ACMA list and URLs added by the vendor or from other sources. Unfortunately, we have no way of knowing which URLs, if any, were added by ACMA and which were added by any third parties.

The list is apparently from late last year, and contains just over two thousand URLs (about double the size of the current list). On the list are some sites which look like they may possibly contain some child sexual abuse material. Unfortunately, there are also a very high number of innocuous sites – dentists, tuckshops, dog kennels, favourite collections of lolcats. Reports are coming out that these sites may have been hacked in the past and found their way on to the blacklist. This raises an immediate problem – what happens when the website owner fixes its security hole and removes prohibited content? How do you (a) find out you're on the blacklist; and then (b) get your site removed?

Then there's another category of sites on the list – sites that appear to have been wrongly categorised – legitimate adult sites, poker and betting sites, the Encyclopedia Dramatica, 4chan, and many more.

There is a real legitimacy problem if the Australian public are not allowed to know what is blocked, and there is no recourse for blocked sites to appeal decisions by ACMA.

What makes this much, much worse is that we face serious repercussions for simply wanting to examine the list and point out mistakes by ACMA or undesirable effects of the censorship regime. ACMA says that “Australians caught distributing the list or accessing child pornography sites on the list could face criminal charges and up to 10 years in prison.”

Last week, we saw ACMA threaten whirlpool's hosts with fines of up to $11,000/day if it did not remove links to a page that links to a another site on the current ACMA blacklist.

Today, Senator Conroy said that

ACMA is investigating this matter and is considering a range of possible actions it may take including referral to the Australian Federal Police. Any Australian involved in making this content publicly available would be at serious risk of criminal prosecution

This is extremely worrying from an accountability and legitimacy point of view. Australian have effectively been asked to take it on faith that the ACMA list is legitimate and only contains so-called 'illegal' sites, does not result in over-blocking, and is both accurate and up-to-date. Any citizen who wants to investigate those claims is faced with the threat of criminal prosecution.

This is not only bad policy, but it's bad democracy. Solving the problem caused by leaked lists by silencing critique is not best way forward.

Despite the best efforts of ourselves and others, reports are still coming in that the mandatory filtering plan has now been 'scuttled', and twitter (and I'm sure many other social media outlets) is still on fire with the celebratory news. Here's an update of some of the things that people have been doing to continue the opposition to Labor's mandatory filtering proposal:

• EFA has launched SiteBlocker.org, which shows a facetious look at what the mandatory filter may look like. See a demonstration here, or go to the siteblocker site to create your own customised blocked site.

• Tomorrow UNSW will host a second forum on mandatory filtering, which looks like it will be a great event. Keep your eyes open for live coverage and reports of the event. Update: live twitter stream available at #filteringforum

• I'll be speaking at a forum on filtering in Brisbane on 26 March. Details have not been released yet, but the organiser plans to run similar forums in March in Brisbane, Sydney, Melbourne, and Adelaide. Stay tuned for details.

• The Digital Liberty Coalition is organising a March in March, a public protest against mandatory filtering in Canberra at 1pm on 21 March. If you can get there, I recommend you make the effort to turn up and make yourself heard.

• EFA is producing a set of fact sheets for politicians about the mandatory filtering proposal. This is something that we could use some help with. Being a volunteer organisation, we often struggle to find the time to do what needs to be done. So I've created a wiki to reach out for help from the public in our campaigns. If you think you can help with writing (or even fact and copy checking) some high quality fact sheets, please help us out.

Last week Dale Clapperton and myself gave evidence to the Senate Select Committee on the National Broadband Network. EFA had previously provided a written submission to the Senate, voicing concerns about the increased cost to users and the potential anti-competitive effects of the proposal.

We noted that the NBN would be likely to significant increase internet access costs to users, and that what we should be focusing on at the moment is increasing download quotas and upstream speeds:

Mr Clapperton—We are saying that least some of that 98 per cent of Australians would be disadvantaged, not only our members. In the market people can already get internet services of approximately the same speed as would be available under the NBN and can get it so much cheaper. Certainly that proportion of the market would be worse off under the NBN because they would be in a position of either paying more for what they currently have or having less than they currently have because they cannot afford to pay more. I do not have any firm statistics on the number of people who currently have access to what you might call NBN-grade services, but it is certainly a non-trivial number. Those people would be disadvantaged. For the people who cannot currently get what you might call an NBN grade service the question is going to be: they might be able to get it under the new environment but can they afford it? There is really only so much that your average household might be willing to pay for internet access. I am currently paying $50 a month. Under the NBN environment the most recent pricing that I have seen, a suggestion by Telstra, is that their wholesale price for a service of comparative speed to a reseller would be more than I am paying retail at the moment, so my cost would certainly go up. I think a lot of people would be in the situation of saying, ‘Yes, fine. We can get a 12 megabit service under the NBN, but we just can’t afford it. Even if we could afford it, we could only use it for an hour or so a month at full speed and then we will have to put our hand in our pocket again to pay for it.’ There is unfortunately something of a fallacious public perception at the moment that the cost of a fast notionally unlimited internet connection is $50 or $60 a month, when that is quite simply not the case. That is only sustainable at a retail level because ISPs are really oversubscribing their services. That is why you see things such as download limits. The true cost of even a one megabit internet service that you can use at one megabit all month is not less than $100. It is probably over $1,000.

Mr Suzor—The reason we are critically concerned about download quotas and upstream capabilities is that the use of the internet is changing in Australia. It is not just about having a high-speed network to browse the occasional webpage. We are looking at connections that are always on. We are looking at cloud computing, where people are increasingly moving their applications away from their desktop and onto the internet via various servers around the world. All of this takes upstream processing. We are looking at people who are participating in various multimedia and content rich services, so people who are uploading and downloading videos and participating in a real global conversation. As these sorts of activities increase we have to be very careful about the very high costs that we currently pay in Australia for upload content and download quotas—cents per megabytes above a certain quota and upstream speeds—in order to participate in participatory communication. This is something we are very concerned about at the moment.

We suggested that the proposed $4.7bn investment would be better spent bringing access to rural areas and increasing infrastructure based competition.

The full text of the hearing is available on the Hansard Senate website (direct link to PDF).

A recent report indicates that the South Australian Attorney-General, The Hon Michael Atkinson MP, has dug in his heels and refused to make the discussion paper on Australia's lack of an R18+ rating for games public.

A spokesperson for the Victorian Attorney-General, Rob Hulls, has said that “it now appears unlikely that there will be unanimity from all jurisdictions to proceed further at this stage with introducing an R18+ category for computer games.”

The article notes that “Mr Atkinson has opposed the introduction of an R18+ rating for games for many years, telling parliament earlier this year that he knew it denied Australian adults choice but was necessary to help restrict children's access to 'potentially harmful material'”.

The article also notes Mr Atkinson's reliance on the unfounded assumption that “Games may pose a far greater problem than other media – particularly films – because their interactive nature could exacerbate their impact”. Atkinson continued, saying that “The risk of interactivity on players of computer games with highly violent content is increased aggressive behaviour.”

I have now launched EFA's campaign to introduce an R18+ rating for games in Australia.
We call on each of you to let your Attorney-General know that we do not think that the fate of Australia's classification scheme should be determined by one state politician's unfounded beliefs. The public debate on this issue has now been cut short, without sufficient reason. It is now time to call upon the Standing Committee of Attorneys-General to make the discussion paper public, and see what Australians really think about an R18+ rating for games.

We lodged a submission with AGD about the format shifting exceptions for photographs and films.

Press release is available at the EFA site.

In short, we argued for a digital-to-digital private copying exception.

If the purpose of copyright is to provide incentives for creators, then preventing consumers from watching their purchased films and photos on the device of their choice adds little to no incentives but imposes a large cost to consumers. Expecting consumers to purchase a separate copy of each film or photo for each device (electronic photo frame, set-top-box, computer, portable player, etc) will have three effects: some consumers will get ripped off by having to buy the same thing more than once, some consumers will be impoverished because they can't enjoy their media on their device of choice, and some consumers will simply disregard copyright law in the knowledge that it is currently very difficult to police private copying. In one of these cases, the copyright owner earns more fees for no additional investment.

I would like to see a serious argument that copyright owners need the additional licence fees that they are likely to earn from families purchasing more than one copy of any given film or photograph.

Failing any significant evidence that I haven't heard of on that point, I firmly believe that the balance favours allowing private copying.