Tech companies would be legally protected and block sites at the direction of the eSafety commissioner

This article is more than 1 year old

This article is more than 1 year old

Proposed new laws could give the Australian government greater powers to block websites from access in Australia, as the internet industry deals with hastily passed legislation designed to prevent another livestream of a terrorist massacre being shared widely.

Shortly after the Christchurch massacre, Australian telecommunications companies and internet providers began proactively blocking websites hosting the video of the Christchurch shooter murdering more than 50 people or the shooter’s manifesto.

The internet providers were praised by the government for this effort, despite being in a legally grey area by blocking the sites from access in Australia for people not using virtual private networks (VPNs) or other workarounds.

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“The ISPs were left in an invidious position post-Christchurch,” John Stanton, the chief executive of Communications Alliance, which represents the ISPs, said. “The government and public praised them for doing the right thing but some site owners were angry about having their sites blocked.”

The government also passed legislation in April that made companies and their staff liable for not quickly removing abhorrent violent material from access.

Maximum penalties include fines of up to 10% of annual turnover for corporations or imprisonment for up three years for individuals.

At the time, the government, which passed the laws with the support of Labor, faced criticism for rushing the legislation.

The sudden change meant internet service providers such as Telstra, Optus, and TPG were in a bind. They could potentially be found in breach of the new laws if they stopped blocking the dozens of sites hosting the Christchurch material, but there was no law in place to give them legal grounding for blocking the sites in the first place.

“The government put the abhorrent and violent material legislation in place, making it more risky for ISPs to eventually go down the path of unblocking any sites,” Stanton said.

A report was released on Sunday to coincide with the G20 leaders’ statement on cracking down on sharing extremist material, written by a taskforce established after Christchurch comprising the telecommunications companies, government representatives, social media representatives and other affected groups. The report came up with a short-term solution to fix the legally murky issue of blocking websites hosting the Christchurch shooter video and manifesto.

The companies would continue to block those sites at the direction of the eSafety commissioner, using powers that the eSafety commissioner already had to direct telecommunications companies to act under Section 581 of the Telecommunications Act. This would mean they were legally protected.

The group then proposed developing protocols for the commissioner to issue new notices of sites to be blocked in the event of another Christchurch-style incident, with landing pages to tell people visiting those sites why they are blocked. Eventually the protocols would be enshrined in legislation.

But the proposal raises the spectre of mandatory internet filtering – something the Coalition government, and Labor before it, have considered but ultimately shied away from.

Currently there are limited circumstances where websites can be blocked from view in Australia. Government agencies can issue notices under section 313 of the Telecommunications Act to block websites but, aside from blocking child abuse websites, it is a seldom-used power, following one agency accidentally blocking 1,200 websites by mistake.

In the 2017-2018 financial year, no state or federal agencies used the law to block websites, according to the Australian Communications and Media Authority (Acma).

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Sites hosting copyright infringing material such as torrents for TV shows and movies can also be blocked – but only with a court order.

The proposal takes the eSafety commissioner’s powers one step further from its role in compelling companies into removing bullying material or revenge porn from websites to compelling the internet service providers into actively blocking content deemed by the commissioner to be terrorist or extreme violent material.

How that material is defined is likely to be a matter for debate but the taskforce has said that it should be material that:

depicts actual violent crime

encourages or instructs a terrorist, terrorist group, terrorist act or a person to commit a violence crime

murder, attempted murder, torture, rape, violent kidnapping

The definition of violent crime could include graphic violence, violent content or gore.

But the taskforce identified that there needed to be exemptions to ensure news organisations and journalists are not caught up by the law, nor those raising awareness about human rights abuses, acts of terrorism, as well as those making social commentary or doing so for academic, artistic, education or law enforcement purposes.

The detail of how the new site-blocking regime would work in practice still needed to be worked out by the government and industry, Stanton said.

In a statement, a spokesperson for the eSafety commissioner said they would work closely with industry and those affected to ensure the scheme “will achieve the right outcomes for all parties concerned, including Australian internet users”.