Electronic Frontiers Australia today launched a new campaign against the Rudd Government's mandatory Internet filtering plan.

The Open Internet campaign emphasises that Australians want an Open Internet that is free from an impractical and costly policy of Government imposed mandatory Internet filtering.

"This policy has caused considerable anxiety amongst Australian Internet users," said EFA Vice-Chair Colin Jacobs. "The idea that the Government will be inserting itself in every Internet connection in the country is a tough one to swallow, especially without a workable policy goal behind it."

"Australians support an Open Internet that empowers individuals to decide what they view online," said Peter Black, EFA's campaign manager. "Australians support an Open Internet that trusts parents to monitor what their children view online."

The campaign is centred around a new website, OpenInternet.com.au, blog, and Facebook fan page, that together will act as campaign hub for all the different individuals and organisations that are campaigning against the Government's mandatory Internet filtering policy.

The policy, which will see all Australian Internet connections subject to a Government-controlled blacklist of banned sites, will apply to all Australian Internet connections within 12 months of the legislation being passed. Although originally touted as a "cyber-safety" policy, the resulting filter will not filter out all material unsuitable for children, instead targeting a select list of "refused classification" material, which would include content dealing with crime, drugs and certain types of adult material.

Concerns with the list include its broad scope, its secret nature, and the inability of Australian businesses to know if and when they have been placed on the list. "One of our main concerns is how the list might expand in the future," said Jacobs. "It's hard to imagine both this government and every government forever, resisting temptation from special interest groups as well as electoral and media pressure."

The Open Internet campaign marks an escalation of opposition to the plan, which will continue throughout the year. "Our goal is to ensure the Australian public know what they're in for," said Black. "It's important that such a major and expensive policy gets the public scrutiny it deserves. And we believe that Open Internet portrays a positive and understandable message that will resonate with Australians who are yet to form a strong opinion on the Government's policy."

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EFA has put together a submission to the DBCDE accountability and transparency review on what measures would be required to make mandatory ISP filtering legitimate. Many thanks for Irene Graham and Kylie Pappalardo for their tremendous help in putting this together.

If you want to put in a submission, the deadline is today. You can see our submission for some suggestions.

The point we're making is that filtering is a terrible idea, but if it absolutely must be introduced, it must be legitimately administered. The only justification for secret censorship that are compatible with liberal democratic values is where the material is illegal to possess and publishing identifying information on censored material would cause direct harm - as may be the case with publishing the URLs or other identifying information of child sexual abuse material. Even in these circumstances, there are stringent requirements for notification, rights of appeal, and regular rigorous oversight of the secret list. In all other circumstances, classification, in order to be compatible with the ideals of liberal democracy, must be carried out in an open and accountable manner.

Our full submission is available here (PDF).

The specific recommendations we are making are over the fold.
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Internet vigilante group Anonymous have stepped up their campaign against the Rudd Government and its Internet censorship scheme today. "Operation Titstorm" began with denial of service attacks against various Government websites including that of the Prime Minister.

EFA naturally condemns these attacks - not only are they illegal, but they damage the cause by playing to stereotypes of filter opponents as juveniles motivated by a desire to keep the Internet safe for porn. They serve no purpose but to give the Government the moral high ground, and distract from arguments about the ineffectiveness of the policy and its ramifications for free speech.

It's easy to understand the frustrations that the Anonymous members feel - it's true that the censorship plan has been thrust on the Australian public without consultation, research or a coherent policy objective. But this campaign just serves for Anonymous members to get a little revenge. It certainly won't persuade anyone; rather, it will hurt the anti-filtering campaign.

Worse, their objections are ill-informed and easily countered. They claimed:

Brief background information: Chairmen Rudd and his aid Steven Conroy have recently passed a ban accross all of Australia on porography depicting women with small breasts, in a supposed crackdown on "simulated" child porn. He is now pushing for mandatory ISP filtering, allowing him to completely control what Australians can view on the internet.

(The misspellings are in the original.) Although they allude to a genuine problem with a nebulous and subjective classification standard for adult material - well covered by Michael Meloni at SToTC - the insinuation that this is a new thing, or that it is related to filtering, is incorrect. In fact, Rudd and his "aid" Conroy have not changed the classification scheme for movies.

It may be frustrating - and lot of hard work - but there's only one way to keep this ill-conceived plan at bay, and that is by bringing pressure on our elected representatives to see sense and move on to other priorities. Let the Minister, his shadow Tony Smith, and your local MP know that you are against the plan.

The public consultation on the introduction of an R18+ for computer games closes at the end of the month. Jessi Citizen, on behalf of EFA and in conjunction with Ausgamers, has prepared a draft response to the consultation that sets out our understanding of the issues and our arguments.

• Draft submission paper (MS Word format)

In the spirit of community involvement, and to ensure that we have the strongest argument we can possibly put forward, we are opening this draft paper for public comment. You can see (and edit) the paper on Google docs. Please provide us with your comments and suggestions on this paper. In addition to the draft document, we also have some research that we conducted (thanks to Julian Merlo and Matt Postle) that details comparative ratings for games in 2009 worldwide (showing that over half of the games that were rated as MA15+ here were given adult ratings by all five comparative jurisdictions overseas!)

To join in our discussion on the draft paper process, please join our discussion list. Putting these documents together takes money, and EFA is entirely volunteer funded. If you would like to contribute to our R18+ submission, please consider making a small donation to help us recoup our costs:

In addition to comments, we would like to see as many people as possible put together their own submission to the public consultation. You can do this either by using Grow Up Australia's submission form or following the submission template and the instructions on the AGD's website.

Here's some tips for writing a submission:

• Be reasonable; don't attack the classification board or any particular Attorneys-General. We have the facts and the theory on our side, and we don't gain anything by sounding childish or petulant.
• Follow the submission guidelines - make sure your voice is heard.
• Make your points clearly and succinctly. Feel free to take any of the information we present in the discussion paper; you're usually better served by being brief and to the point.
• Express the issue in your own words, and tell your own story; Explain to the AGD why you personally want an R18+ rating, and how it affects you.

The main points that we are trying to stress in this discussion paper are really quite simple:

• Gamers are adults; games, like films, tell expressive stories, not all of which are suitable for children. Banning everything that is not suitable for children amounts to unacceptable censorship of legitimate expression.
• Gamers are parents; as responsible parents, we take care to monitor what media our children consume, and can take responsibility for those decisions.
• An R18+ rating is about empowerment; the goal of Australia's classification is to empower adults, protect children, protect people from accidental exposure to offensive material, and to take into account community concerns about particularly offensive content. An R18+ allows adults to choose what is suitable for themselves and for their children.
• An R18+ rating will be more likely to decrease rather than increase the exposure of children to inappropriate content, because it sends a clear message to parents that certain material is not appropriate for children; the lack of an R18+ for games, particularly when one exists for films, only causes confusion and lessens the ability of parents to take responsibility.
• Australia's system is out of step with the rest of the world; games that are clearly not designed for children are being released with an MA15+ rating, and games that are suitable for adults are being banned. Our research shows that of the 47 games that were rated by the Australian Classification Board, the US ESRB, the UK BBFC, the EU PEGI, and the NZ OFLC, more than 50 per cent of titles that were rated MA15+ in Australia were given an adult rating overseas. The Australian system is demonstrably less effective in warning parents and gamers about the content of video games than our international counterparts. Introducing an R18+ rating will address some of this disparity and enable Australians to make more informed choices about what games they play or allow their children to play.

[edit: for more analysis, see EFA Chair Nic Suzor's blog post: iiNet did not ‘authorise’; providing internet access is not providing the ‘means’ of infringement’; safe harbours are effective.]

And with one tweet, iiNet CEO Michael Malone announces the result that we've all been waiting for:

IiNet did not authorize the infringements #iitrial

More analysis will follow when the full written judgment is handed down, but it is apparent that the Judge was convinced that iiNet has no control over bittorrent and is not responsible for the acitons of its users in the circumstances alleged by AFACT. From the preliminary information available, this sounds like a decision that is absolutely consistent with the theory of secondary copyright liability developed in the US case of Sony v Universal: the lack of control over the system means that iiNet has no legal responsibility over its users, despite knowledge that some users are obviously infringing copyright. In terms of the decision in Moorhouse, iiNet could not be seen as 'approving, sanctioning, or countenancing' the infringing acts of its users. This decision seems to fill the gap with the Kazaa and Cooper decisions in Australia, which both found that the intermediary in question facilitated and encouraged the infringements that occurred.

This provides important certainty for ISPs in Australia: "the mere provision of access to internet is not the means to infringement". It also seems that more generally, this has important ramifications for innovation in Australia; in contrast with Kazaa, if you provide facilities that assist in infringement, but do not have control and do not act in bad faith, you will not be liable for secondary copyright infringement.

AFACT has been ordered to pay iiNet's costs. Expect an appeal, but this first instance decision seems quite strong in favour of iiNet.

Stay tuned for further analysis.