“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.”
Yesterday, I said that
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.
Today I would like to examine exactly what the AFP would need to prove in order to secure a conviction against an Australian for distributing the blacklist.
The first place to start looking is s 474.22 of the Commonwealth Criminal Code, 'Using a carriage service for child abuse material'. This provision makes it an offence, punishable by up to 10 years, to deal with child abuse material, including ”[using] a carriage service to make [child abuse] material available” or ”[using] a carriage service to publish or otherwise distribute [child abuse] material”.
S 474.22(2) provides that intention to 'make available' or 'publish' or 'distribute' is required, but the defendant need only be reckless as to whether the material is child abuse material (ie., should have known, not actual knowledge).
So this raises an interesting question. Is publishing a list of sites that appear to be a superset of the ACMA blacklist 'making available', 'publishing', or 'distributing' the material on the list? If so, is the material on the list 'child abuse material'?
Unless the blacklist is itself 'child abuse material', then it would not appear that distributing the list was the same as 'publishing' or 'distributing' the material on the list. But here's where we run into a bit of a problem. It's not clear what exactly 'making available' means. There's very little case law on this. Is it 'making available' child abuse material to publish a list of URLs that contain child abuse material?
Without case law, making a wild guess, I would tend to think that a court could be persuaded that publishing a list (a directory) of child abuse material 'makes that material available'.
If we take an alaogy to copyright law, for a moment, we have an Australian Federal Court authority in Cooper v Universal that suggests that publishing a list of links is not 'making avialable' the copyright material that is accessible at those links. Justice Tamberlin held that it is the remote servers that 'make available' (and hence 'communicate') the copyright material:
63 I am not satisfied that the Cooper website has “made available” the music sound recordings within the meaning of that expression. It is the remote websites which make available the sound recordings and from which the digital music files are downloaded as a result of a request transmitted to the remote website.
64 As discussed above, the evidence indicates that no music sound recordings are actually stored on the Cooper website. The music sound recordings have initially been made available to the public by being placed on the remote websites. The evidence given by Mr Beckett was to the effect that the digital music files to which links were provided on the Cooper website were also available to users through the internet generally. That is, internet users can access the music sound recordings via an alternative route by directly accessing the remote websites, either by typing that website’s URL address into the address bar on the user’s internet browser or by using a search engine such as Google or Yahoo, rather than by visiting the Cooper website […]
65 The Cooper website contains hyperlinks to thousands of sound recordings which are located on remote websites and are downloaded directly from those websites to the computer of the internet user. When a visitor to the Cooper website clicked on a link on the website to an MP3 file hosted on another server, this caused the user’s browser to send a “GET” request to that server, resulting in the MP3 file being transmitted directly across the internet from the host server to the user’s computer. The MP3 file does not pass through or via or across the Cooper website. The Cooper website facilitates the easier location and selection of digital music files and specification to the remote website, from which the user can then download the files by clicking on the hyperlink on the Cooper website. However, the downloaded subject matter is not transmitted or made available from the Cooper website and nor does the downloading take place through the Cooper website. While the request that triggers the downloading is made from the Cooper website, it is the remote website which makes the music file available and not the Cooper website.
We don't have a lot more authority on what it means to 'make material available'. I have a feeling that Tamberlin J is correct, and that a link does not 'make available' the linked material, but I am also wary that a court may distinguish Cooper on the grounds that (a) it is a copyright case; and (b) assumes that the material is relatively easily locatable without the links provided by Cooper, whereas a court may be persuaded that child abuse material on the blacklist may not be as readily available were it not for the leaked list.
The next point is whether the material is child abuse material. Lets be clear – I have seen the list, I have not visited every site on the list. I have to assume that there are a good number of sites that may currently or may have once contained child abuse material. There are also many, many perfectly innocuous URLs on the list. So, if a person distributes the list, not knowing whether there is child abuse material on the list, are they recklessly distributing child abuse material?
Recklessness requires that a person “is aware of a substantial risk” that there is child abuse material on the list, and that in the circumstances, it is unjustifiable to take the risk. This leads to an immediate problem – a person may be reckless by not checking every URL on the list before distributing it, after a reasonable suspicion that it may contain child abuse material arises. However, I would never advise a person to check the URLs on the list – there is a high risk of criminal sanctions for possession of child abuse material – as in s 228D of the Qld Criminal Code. This seems to imply that a reasonable suspicion that there is child abuse material on the list is sufficient to prevent distribution – as there is no real way to evaluate the risk.
So – to recap, there's still a lot of uncertainty. Depending on how the Federal Court interprets 'making available' in s 474.22, distributing a list of URLs that may have child abuse material on them is very risky.
Lets move on to defences. Section 474.24(1) provides an additional defence if the conduct is of public benefit and does not extend beyond what is of public benefit. Subsection (2) defines 'public benefit':
conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
© the administration of justice;
(d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.
Now, there is a fairly remote chance that a court will accept an argument that distributing a blacklist in order to critique the operation of a legislative scheme is 'necessary for or of assistance in […] the administration of justice'. This is, however, a pretty long bow to draw.
The only assistance that we have here is the potential widening of such a defence in political matters, thanks to the implied freedom of political communication. Since this is a topical matter, and the efficacy of the blacklist and of ACMA relates directly to the proposal by the Labor Government to introduce mandatory ISP filtering, I think that there's a good argument that the distribution of the entire list is for public benefit – if it can be shown to be of assistance to the administration of justice.
The accuracy of the list of potentially blocked sites is certainly an important political issue. If it turns out that the list contains significant inaccuracies (as I highlighted yesterday) and that there are no easy ways to review or appeal decisions to block sites, then there are serious legitimacy concerns with the scheme. The Government has asked us to take it on faith that the blacklist is accurate and up-to-date; a leak showing that it is not is very important to the democratic debate.
The next question is whether publishing the list goes further than is necessary in the public interest. Certainly, publishing only some URLs, that clearly do not contain child abuse material, as many have done already, gets some of the message across that the list is not wholly accurate. But publishing the whole list has its significance too – interested citizens are able to see how many URLs appear to be legitimately blocked, what proportion of URLs may have been contributed by ACMA and how many added by a third-party vendor, what type of URLs make up the list, etc. Publishing only a select few URLs is likely to be much less effective, and any exercise in trying to publish detailed statistics is fraught with the dangers of actual possession of child abuse material.
I think there's a substantial argument to be made on the basis of the defence in s 474.24 and the implied freedom of political communication, but there is a very high amount of risk involved. I would certainly not advise anyone to distribute the blacklist under these uncertain conditions.
Unfortunately, this goes to show the limits of a secret blacklist for the democratic process. If Australians are not allowed to know what material is blocked and are not allowed to distribute lists when they are leaked, we will be completely unable to identify whether the proposed legislation is desirable or not. Informed commentary is necessary in a public system, and an assurance that the ACMA list is accurate and compiled in good faith is not sufficient without any evidence. A higher standard of accountability is required if Australian citizens are to have any input into the legislation that will affect what information they are allowed and able to access.
The criminal provisions in the Criminal Code Act 1995 (Cth) are nowhere near clear enough to provide guidance to Australian political commentators. There is presently far too much uncertainty for citizens to properly evaluate the Government's proposals. Senator Conroy's threats to prosecute those who distribute the blacklist are not going to be effective at stopping people from accessing child abuse material, but they are likely to be effective at silencing legitimate debate.