Many people do not know that the internet in Australia is already heavily censored, even before the Rudd Government's plan for mandatory ISP filtering is implemented. In fact, Australia almost undoubtedly has the most restrictive internet censorship regime in the Western world. Under amendments made to the Broadcasting Services Act in 1999, material rated as low as MA-15+ can be prohibited. More details are available here. In particular, material is prohibited if:

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

(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;

The penalty for hosting prohibited material, or even linking to it, can be a fine of $11,000 per day.

The saving graces of the system are twofold. Firstly, that the Australian Communications and Media Authority do not proactively go looking for such material, but respond to complaints from the public only. Secondly, if content is not hosted inside Australia, the material goes on a blacklist but this blacklist is not enforced in any real way. Thus, despite the millions spent every year on the system, it's pretty ineffective at accomplishing anything but occasionally causing somebody to sign up with an overseas web hosting company instead of one inside Australia.

Nevertheless, the system can have consequences. EFA recently tested some of those consequences.

In May 2009, EFA published this blog post discussing the current censorship regime in the context of the new filtering system soon to be introduced. As part of that discussion, we included a link to a page on American website abortiontv.com that we discovered was on ACMA's blacklist. Abortion being a sensitive political issue, we felt it illustrated the dangers of internet censorship in general and a secret blacklist in particular. Furthermore, since discussion site Whirlpool had received a notice instructing them to delete the link, we thought it highlighted the serious way in which internet content in Australia is already regulated.

Shortly thereafter, EFA's web host at the time, Sublime IP, received a "Link Deletion Notice" of their own, for the link contained in the EFA post hosted on their servers. They contacted us, and given the fines involved, EFA complied. (The post in question is still redacted.)

Despite removing the link, EFA felt that there were several problems with the way ACMA proceeded to issue the notice, and we encouraged Sublime to request a review of the decision before the Administrative Appeals Tribunal (AAT). Because Sublime, not EFA, were the recipients of the notice, we couldn't directly appeal ourselves, and although we wrote to ACMA inviting them to issue the notice to us instead, they declined to do so. Sublime, with advice from EFA, took the case to the AAT and argued the case before Deputy President Handley in April this year.

Our case was twofold. Firstly, given the article was political in nature and the content that was linked to was done as a demonstration of the political effects of censorship policy, we argued that the decision contravened the implied right of freedom of political communication in the constitution.

Secondly, it was argued that EFA, not Sublime, should have been issued the notice as EFA were the authors of the content, controlled its delivery, and met the definitions under the law of the responsible party.

Last week, the AAT handed down its decision, upholding ACMA's decision to both issue the notice and to issue it to Sublime instead of EFA.

On the issue of freedom of political communication, Schedule 7 of the Broadcasting Services Act, which details the censorship system in question, has a specific exemption in cl 121, which states:

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

This right has been recognised by the High Court in several landmark decisions in the 1990s. In order for a law to contravene this implied right, it must effectively burden speech while not having a constitutionally appropriate and legitimate end of its own. Considering this, in his decision Deputy President Handley wrote:

In the Tribunal’s view, imposing restrictions on access to the internet, in some instances, could effectively burden communication about government or political matters. It is common knowledge that the law concerning the practice of abortion is a sensitive political matter. It is possible that opponents of the practice might wish to use material including pictures or images of aborted foetuses as a means of educating (and shocking) members of the public about the results of the practice. Thus, an executive decision that restricts access to such material could effectively burden communication about government or political matters.

However, the tribunal found "any constraint on communications was, in our view, minor and left the words penned by the author of the article untouched." Furthermore, because the page in question was rated R-18+, we could have put the link behind an elaborate "Restricted Access System" to identify web users, and that - since Australian citizens need to be 18 to vote anyway - this would not have restricted political discussion either.

As to whether the Link Deletion Notice should have been issued to EFA instead of Sublime, we argued that it would be very unlikely that most web hosting companies would take the trouble to appeal any such content removal notices by ACMA, thus depriving the material's authors (their customers) of the right to contest a decision that affected their speech. Indeed, the Tribunal did find that there was some merit to this argument and that EFA qualified as a "Links Service Provider" under the Act, and could have been the recipient of the notice. However, since Sublime also qualified, ACMA had acted in accordance with the law in issuing the notice to them.

We are disappointed but not surprised by this decision, which we feel highlights many issues with the current system. Those who choose to can simply move their content overseas or change the address of the web page in question, leaving those who abide by the spirit of the law to remove their material, or have it removed for them by their provider. From the leak of the blacklist, we saw that many of the sites on there were far from obscene, but contained all manner of harmless, controversial and borderline political material. This raises enormous concerns. Could debate and culture thrive in Australia if all R-rated material was effectively blocked?

Finally, we note that compared to the announced plans of the Government to require their censorship to move to mandatory, real-time blocking of RC-rated prohibited material, even the current system is relatively benign. When the material blocked is hosted overseas, nobody will even receive the courtesy of a letter from the Government informing them of the decision. It will simply go on a secret blacklist, with as yet unknown remedies for appeal and rectification mistakes. We hope that despite the Tribunal's decision, this case has highlighted the need for extreme caution in censoring material in a medium as dynamic and important as the internet.