FOI request on ABA:
Report on documents released/denied

Last Updated: 7 September 2000

In February 2000, EFA lodged a Freedom of Information Application (FOI) on the Australian Broadcasting Authority (ABA) seeking information about material banned and not banned under Australia's Internet censorship legislation which came into effect on 1 January 2000.

Six months later, in late August 2000, some documents were released by the ABA, although a vast amount of information was blacked out.

Blacked out URLs include not only URLs to banned pages, but also some that are not banned. For example, URLs to pages classified MA15+ by the Office of Film and Literature Classification where the complainant stated the content was "explicit nudity/poor taste" have been blacked out, while URLs to content that complainants' stated advocates violence against the gay and lesbian community have not been blacked out.

Furthermore, discrepancies appear to exist between information released to EFA and Government reports on the operation of the regime. For example, the figures reported in the ABA’s first quarter report (issued in April), and the six-month report issued by Senator Alston (on 5 September), do not accord with information released to EFA under FOI. The number of complaints received in January and February do not match, nor does the number of complaints received that resulted in findings of prohibited content hosted in Australia.

Further information is provided below.

Contents:

• Information Released
• Information Denied
• Discrepancies between documents released and Government Reports
• Issues and Questions
• Status of FOI process

Information Released

Documents released to EFA cover the period 1 January to 25 February 2000 and include the following:

• 88 pages of “Complaint Management System Records”. Each page records details of one complaint and the complaint number is printed on each page. These pages appear to be screen dumps from a database and contain the same fields as those in the ABA online complaints form. See sample.

• 26 OFLC Classification Certificates, each referring to one complaint number. 25 certificates classify material hosted in Australia (18 RC, 1 X, 3 R, 3 MA); 1 certificate classifies material hosted outside Australia (1 RC). See sample.

• 22 Final Take-down Notices, referring to complaint numbers matching OFLC Classification Certificates. See sample.

• 14 email notifications to filter suppliers. These 14 pages refer to 17 complaint numbers. (4 complaint numbers concern content originally hosted in Australia that was previously subject to a Final Take-down Notice). See sample.

• The ABA advised that "There are no documents which are covered by category (g)". Category (g) of EFA's application covered "action taken on complaints where a takedown notice was not issued by the ABA, ie referral to a law enforcement agency". It appears that no complaints had been referred to police as at 25 February (the end of the period covered by EFA's application). Apparently four complaints were referred to police between 25 February and 10 March, since Mr Gareth Grainger, then Deputy Chair of the ABA, informed a conference on 10 March 2000 that: "To date, four (4) of the complaints investigated have involved material that has reached the 'sufficiently serious' threshold and have been referred to the police for investigation."

The above documents detail complaints and outcome as summarised below:

A detailed schedule summarising information contained in the released documents is available at:

http://www.efa.org.au/FOI/abafoisched.html (HTML format)
or
http://www.efa.org.au/FOI/abafoisched.xls (Excel 95 format)

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Information Denied

• URLs and page titles and other information on the vast majority of documents has been blacked out. The ABA states this is because the documents

  "contained information that would enable a person to identify, locate and view Internet content which has been the subject of a complaint to the ABA and which has been subsequently found by the ABA to be prohibited or potentially prohibited content."

  However, documents released show that a number of URLs that were not found to be prohibited or potentially prohibited have also been blacked out and no reason for this has been provided. For further information, see below.

• The name of one ABA officer has been blacked out on one document because the ABA decision makers consider not doing so may bring the officer into a situation of embarrassment or ridicule.

• The names of organisations referred to in two complaints have been blacked out because the ABA decision makers consider not doing so may have an adverse effect on their lawful business activities. These appear not to be the names of ISPs/ICHs who received take-down notices, as these names have been released.

• The top portion of a number of emails to filter suppliers appears to have been guillotined off to remove information such as To, From, Subject, Date. No reason has been provided.

For considerably more detail on the ABA's reasons for denial of access, see their decision letter.

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Discrepancies between documents released and Government Reports

The figures reported in the ABA’s first quarter report (issued in April), and the six-month report issued by Senator Alston (on 5 September), do not accord with information released to EFA under FOI. The number of complaints received in January and February do not match, nor does the number of complaints received that resulted in findings of prohibited content hosted in Australia.

• The 88 pages of ABA “Complaint Management System Records” to 25 February accords reasonably closely with statements of Mr Gareth Grainger, then ABA Deputy Chair, during a speech in March 2000 that

  “As at the end of February, that is, the scheme’s second month of operation, the ABA had received 85 complaints”.

  This suggests that each complaint number represents one complaint, as each of the 88 pages have different complaint numbers; 54 received in January and 34 received in February.
  

  However, the six-month report tabled in the Senateon 5 September 2000 by Senator Alston states that 46 complaints were received in January and 30 complaints in February. A total of 76 to the end of February, which is less than the 88 complaint numbers to 25 February.

• Of the 88 complaint numbers, 22 Final Take-Down Notices (copies released under FOI) were issued on or before 1 March 2000, each Notice referring to a different complaint number. However, the ABA Report on the operation of the scheme to 31 March 2000 states that as at 31 March 2000 only 9 complaints had resulted in finding of prohibited content hosted in Australia.

• The ABA Report to 31 March states that 124 complaints were received in the first three months. The Six-Month report states that 123 complaints were received in the first three months.

• The 22 Final Take-Down Notices (copies received under FOI) to 1 March comprise:
  • Issued to Content Host 1:
    • 1 (RC) referring to 1 complaint number received 3/1/00
    • 12 (RC) referring to 12 complaint numbers received 7/1/00, apparently from the same person
    • 1 (RC) referring to 1 complaint received 19/1/00 - a 6 pages listing of some 280 (blacked out) URLs was attached
    • 1 (X) referring to 1 complaint received 23/2/00 (X)
  • Issued to Content Host 2:
    • 3 (RC) referring to 3 complaint numbers received 10/1/00, apparently from the same person
    • 1 (RC) referring to 1 complaint number received 21/2/00
  • Issued to Content Hosts 3, 4 and 5:
    • 1 (R) referring to 1 complaint received 7/1/00
    • 1 (R) referring to 1 complaint received 3/2/00
    • 1 (R) referring to 1 complaint received 9/2/00

  If, for the purpose of formally reporting on operation of the scheme, the ABA quotes numbers of complaints in terms of the number of people who complained (rather than number of complaint records on the ABA database), then it would seem from the above that approximately 9 persons’ complaints had resulted in findings of prohibited content hosted in Australia by the end of February. This would accord with the ABA Report as at 31 March, if none of the 47 complaints received in March (according to Six-Month Report) had resulted in finding of prohibited content. (Details of complaints received in March were not covered by the FOI application). However, it would seem that complaints received in March did result in findings of prohibited content hosted in Australia.
  
  

• The ABA’s first report states “In the first three months of Internet content complaint investigation, the Australian Broadcasting Authority issued final take-down notices for 31 items of Australian-hosted content”.

  It is not clear how the ABA defines an “item”. Of the 22 Final Take-Down Notices issued to 1 March 2000, 21 refer to “the page” or “a page” and blacking out indicates only 1 URL is listed. One other notice dated 4 February refers to “a page...together with the image files related...” and attaches a list of some 280 (blacked out) URLs.

  If images files are counted as “an item”, then to 31 March far more than 31 items were subject to take-down notices. If image files are not counted as an “item”, then during March apparently some additional 9 “items” were subject to take down notices, which were apparently found as a result of complaints received in March.

  It is thus unclear why the ABA first quarter report states 9 complaints resulted in findings of prohibited content hosted in Australia to 31 March, while documents released to EFA show that to 1 March, 22 Final Take-Down Notices were issued relating to 22 different complaint numbers.

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Issues and Questions

• The ABA states that information has been blacked out because it would enable persons to locate prohibited content. However, in the case of two complaint numbers, the OFLC classified the material MA15+, i.e. not prohibited. Nevertheless details have been blacked out. In the case of approximately 20 other complaint numbers where details have been blacked out, no documentation has been provided to indicate that these pages were subject to take-down notices, or notices to filter suppliers.

• In two cases classified MA15+ by the OFLC (complaint nos. 18 and 19), the description given by the complainant was "explicit nudity/poor taste". The ABA has blacked out information that would enable one to locate that content, although it is not prohibited.
  
  However, in cases where the complainant has said the content is eg: "Anti-homosexual, promoting violence against gays" (complaint no. 67) and "hate speech - incites hate against gay and lesbian, members of the community in the name of endorsing, censorship" (complaint no. 1502), the ABA has not blacked out the URLs. It would appear that the ABA, in deciding what not to release, has gone way beyond their legislative remit and furthermore has evidenced a value judgement as to what may harm adults and children if URLs to non-prohibited content were released, that is, it would seem the ABA is of the view that nudity causes harm, but incitement to hate or violence against the G&L community does not cause harm.

• Classification and censorship of Internet content remains secret and unaccountable. In the case of films, videos, publications and computer games, all classifications are made available in the OFLC's online classification database. For example, entering the OFLC File Number T82/868, or Classification Number: 10019A9D8A73 for the banned film "I Spit on Your Grave" returns information about the film and classification. However, classification decisions in relation to Internet content are not available in the OFLC online database. For example, the classification certificate for a web page classified MA15+ on 10 January 2000 provides the OFLC File No. T00/16 and Classification No. 70063200. However, entering either of those details in the online database returns the advice "no matches".

• According to FOI documents, the ABA has acted on and prohibited content as a result of complaints received from non-Australian residents. This is beyond the requirements and intent of the legislation and the ABA's own site states:

  "To make a complaint about Internet content, you must be one of the following:

  • an Australian resident; or
  • a body corporate that carries on activities in Australia; or the Commonwealth, a State or a Territory."

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Status of FOI Process

EFA considers that access to some information has been unjustifiably denied and that other information may have been inadvertently omitted from documents received.

EFA intends to pursue release of a number of denied documents and anticipates lodging an appeal in the Administrative Appeals Tribunal.

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Author: Irene Graham, Executive Director, EFA (igraham at efa.org.au)
Date: 7 September 2000