Dear EFA Supporter,

The outlook for online freedom in Australia continues to be less than stellar as the Rudd government's plan for mandatory Internet censorship gains momentum, with computer games now in their sights. In the meantime, EFA received a link deletion notice - under threat of an $11,000 per day fine - for a discussion on the politically sensitive nature of blacklisted content.

However, it's not all bad news. A recent victory for IceTV in the High Court has set an encouraging precedent and some positive indications have come to light that the Anti-Counterfeiting Trade Agreement will not seek to introduce onerous new penalties on individual Australians. EFA was also able to make a positive contribution recently at ICANN in Sydney, and connect several recipients of legal threats with appropriate volunteer representation. Read on for further details.

Mandatory Internet Filtering Campaign Update

Due to embarrassment caused by the leaked ACMA blacklist, Senator Conroy's most recent statements on the filtering scheme have talked about a hypothetical "RC-only" blacklist
that would contain "almost exclusively" material that is or would be refused classification by the Classification Board. Although this represents a slight narrowing of the scope of the scheme, it doesn't address any of the fundamental problems. The list will certainly include legal material and its scope is bound to expand in future.

The results of the pilot trials of ISP-level filtering are expected to be made available in the next 30-60 days if things go according to schedule. EFA expects that the results will show that ISP blacklisting is by and large technically feasible, but that "child-safe" dynamic filtering is not. When this happens, EFA intends to ratchet up our campaign highlighting the ineffectiveness and dangerous nature of mandatory filtering.

Filtering of Computer Games

A recent announcement by the Minister's office indicated that the RC blacklist will explicitly target RC games - that is, any game that has not been rated MA-15+ or below (see below for news on our campaign to get an R-18+ category for games in Australia). Because online games are generally not classified like traditional games, and because of the large amount of user-generated (and potentially R-Rated) content that these games entail, games like World of Warcraft or Second Life could be only one complaint away from an effective ban in Australia. This has proven to a be an unpopular move and may help to galvanise public opinion against the filter.

See Colin's blog post for more information.

Fact Sheets to Politicians

We have produced a set of fact sheets on the proposed internet filter, and they look fantastic. We sent these out to every sitting Federal member and Senator, and have received some encouraging feedback from some of our elected representatives. The fact sheets cover the following six areas:

  1. Overview: What is the scheme, how did it come about?
  2. Cyber-safety: Will the filter protect children and how?
  3. Technical issues: How will the filter work and what are the technical difficulties?
  4. Filtering overseas: How does this scheme compare to those in other democracies?
  5. Combating illegal material: Will the filter crack down on the distribution of child abuse material online?
  6. Filtering and free speech: Does the scheme pose a threat to our democratic freedoms?

You can get the print quality PDFs here. We encourage you to to reuse these as you see fit - they're good for providing a solid background about why the proposed filter is bad policy.

Appeal to the AAT against ACMA's Link Deletion Notice

At the beginning of May, our hosting provider received a Link Deletion Notice from ACMA, requiring them to remove a link from our site to a site on the ACMA blacklist. We had originally linked to the prohibited site in order to demonstrate that the ACMA blacklist contained material that was political speech. We believe that doing this ourselves was political speech, and should be protected under the Australian Constitution. Accordingly, while we removed the link (rather than expose our provider to fines of up $11,000 / day!), our hosts are working on an appeal with the Administrative Appeals Tribunal to contest the takedown notice. Among other arguments, we will contend that the content to which we linked and the context in which it was presented gave it explicit protection as political speech. (The linked-to content, of course, is not illegal to possess or view.)

As the case progresses we will keep you updated.

R18+ Games

Australia's lack of an R18+ rating for video games has once again raised public interest following recent reports that websites that make available prohibited (or potentially prohibited) games will be blocked by any mandatory filter. We continue to await the release of the discussion paper by the Commonwealth. A recent cabinet reshuffle sees the Hon Brendan O’Connor replace the Hon Bob Debus in the position of Commonwealth Minister for Home Affairs, taking over the role of Commonwealth censorship minister. We can only assume that the new Commonwealth Minister continues to intend to release the discussion paper 'shortly'.

When the discussion paper is released, we will have a short period to draft a comprehensive submission to the Standing Committee of Attorneys-General. Preliminary work has started, but we need some help from the membership in order to create the best possible submission. If you are familiar with the debate, and especially if you have some expertise on the issues or the relevant research, we would very much appreciate your input. We are experimenting with a wiki drafting process for the submission. Final editorial responsibility will of course rest with the EFA Board, but we hope that our members can help us create a strong submission that advocates for the rights of Australian citizens and gamers. You can find the draft in progress on our wiki. Please contact [email protected] if you have questions, or add yourself to our working group mailing list.

ICANN

From the 21-26 of June, Sydney played host to the 35th meeting of ICANN (the Internet Corporation for Assigned Names and Numbers), the non-profit corporation that is the closest thing the internet has to a central authority (ICANN oversees the assignment of IP numbers and the registration of domain names). Hundreds of participants representing
internet related businesses, governments, and ordinary internet users, were there to have their say. Participants from all over the world converged in a true global gathering as befits the global reach of the internet, and EFA was there as well. Though EFA has participated in ICANN for several years, a Sydney meeting saw the opportunity for several board members to be involved. EFA board members were in full attendance for the duration of the meeting, working particularly with the NCUC, the Non-Commercial Users Constituency, which includes many groups from around the world with similar goals to EFA, such as IP Justice, EPIC, and Global Voices Online.

The big issue for this meeting was deciding on rules for the operation of potentially hundred of new top level domains, proposed domains such as .music and .food. A particular subject of debate was a report on potential ways to protect trademark rights in these new domains -- EFA strongly argued that the rights of trademark holders should not be allowed to override legitimate free speech concerns (which may include use of those trademarks). Other proposals would have had attacked domain name owners right to privacy, a vital protection for those
using the internet to criticise governments that attack free speech.

We will continue to participate in the ICANN process, and keep you up to date as important issues arise. We at EFA believe that it is important that free speech and civil liberties organisations continue to be represented at global forums like ICANN, to continue to have a say in the policy decisions that will shape the internet of the future.

Website redesign

EFA's website recently had a bit of an overhaul to reflect our updated branding. We also intend to keep blogging about relevant issues in a slightly more informal style, so be sure to subscribe to our RSS feed and/or follow @efa_oz on Twitter.

ACTA

There has been no significant movement on the proposed Anti-Counterfeiting Trade Agreement (ACTA) in the first half of 2009. The new US Administration has delayed most international trade discussions in order to review its position and, most likely, to deal with pressing domestic issues first. There is still no draft text on internet distribution issues, and we do not expect to hear anything for at least a few months. We continue to communicate with the Department of Foreign Affairs and Trade (DFAT) about Australia's position on ACTA, but no new information is currently available. Michael Geist reports that Canada and some other stakeholders are pushing for a de minimis exception, which would ensure that certain small scale infringements are not caught in the ACTA net.

We remain highly concerned about the secrecy of ACTA negotiations, and we will continue to monitor the situation and keep you up to date. When more information about the proposed internet distribution clauses becomes available, we will respond to DFAT as appropriate.

IceTV v Nine Network: Copying electronic programme guides

Recently, the High Court of Australia handed down its decision in IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14. Importantly, the High Court held that IceTV did not infringe copyright in The Nine Network's television broadcast schedules when it took time and title information in producing its own electronic programme guide. This is an important decision from Australia's highest court, and signals a welcome limit to the protection of information under Australian copyright law. The High Court unanimously held that copyright does not protect facts or information - an area that has been very questionable since the decision in Telstra v Desktop
Marketing that found that telephone directories were protected by copyright law.

This decision is important because it provides some additional certainty and liberty for Australian users of information. By holding that Ice did not infringe copyright, the High Court emphasised the distinction between ideas and expression - a line that was heavily blurred after Desktop Marketing. This decision seeks to obtain a balance that ensures that originality in expression is protected but more prosaic information is not. Ideally, this decision introduces a bit more freedom to users of copyright material, ensuring that once information is disseminated, Australians are able to reuse and remix that information without obtaining a copyright licence. In practice, however, there are still many outstanding issues - particularly as
drawing the line between ideas and expression is problematic at best.

All in all, this is a very positive decision from the High Court, and we are hopeful that it signals a more critical understanding of the role of copyright in encouraging innovation and expression in Australia.

Legal threats

We have recently been able to find pro-bono representation in two separate legal threats against webmasters. The first was ContestedFooty.com, an AFL commentary and news blog who were issued a cease & desist notice by the AFL. Thanks to an EFA volunteer member, the group were able to respond to the AFL's threats and continue operating.

The second case was a small-scale blog hosting organisation, who surprisingly found themselves the target of a defamation suit for some content on a third-party blog that they hosted. We say surprisingly, because the host had complied with the plaintiffs demands earlier in the year and had already taken steps to remove the alleged defamatory material. This case is still before the courts, so we won't be providing any further details, but we were able to find representation for the small company in question.

If you are a practising solicitor or barrister and are available to help out in a pro-bono or discounted capacity on issues like these, please contact [email protected] We rely on volunteers to take referrals when issues like this do come up (which is thankfully not often), and our volunteers have been able to make a huge difference in advising individuals or small organisations on technology law issues. Typically these individuals have little resources and would otherwise be unable to stand up for themselves, so we are very thankful for the involvement of volunteer layers in each of these cases.

Support EFA

There are a number of projects that we are asking for your help with in the near future. We continue to be heavily involved in the mandatory filtering debate, and welcome any new ideas that members may have about continuing to apply pressure on the Government's proposed scheme. We still encourage you to write to your local member and the Commonwealth Minister, Stephen Conroy. See our nocleanfeed campaign site for more information.

We also need some help on the R18+ games campaign. If you can contribute to a submission on the forthcoming discussion paper, please help us out. We also encourage you to write to your Attorney-General and voice your support for an R18+ rating. See our wiki site for more information.

We are also looking for volunteers who may be interested in helping with EFA's systems administration tasks. We need experienced sysadmins to help with some upcoming changes to our website infrastructure as well as ongoing maintenance. If you are qualified and interested, please contact [email protected]

Finally, we are sorely in need of some more promotional assets. If you are able to donate some graphic design skills in creating some banners in standard web sizes, please let us know. We could use banners targeted at the R18+ games campaign and the nocleanfeed campaign, as well as general EFA banners using our new logo. We are also considering some merchandising options - so if you're into t-shirt design, feel free to send us some ideas. You can contact us at [email protected]

We would also like to take this opportunity to say thanks for all your ongoing support. As you may be aware, we have sent out membership renewal letters this month. EFA is fully funded by membership fees and donations, and we could not do any of this without the support of all of you.

-- The EFA Board

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