Proposed Internet censorship laws

26 Aug 2003

On 20 August 2003, in a media release titled Using internet for offensive and menacing purposes to be outlawed, the Minister for Communications, Information Technology and the Arts, Senator Richard Alston, and the Minister for Justice and Customs, Senator Chris Ellison, said:

"[T]he Australian Government will soon introduce into Parliament amendments to make the use of a telecommunications service to carry offensive Internet content a criminal offence.

It is currently an offence to use a telecommunications service in a way that would be considered by reasonable persons as offensive, or with the result that another person is menaced or harassed.

However, the use of a telecommunications service to carry offensive Internet content is not covered by existing provisions. The new offence will carry a penalty of two years imprisonment, double the punishment for the existing offence."

The above refers to Section 85ZE of the Crimes Act 1914 which does not cover 'Internet content' because the government considered it necessary to amend s.85ZE at the same time as the Federal Government's Internet censorship laws were enacted.

The Crimes Act 1914 was changed (by the Broadcasting Services Amendment (Online Services) Bill 1999) to state that s.85ZE (1)(b) "does not apply to the use of a carriage service to carry Internet content" and, according to the government, put "the concurrent operation of State and Territory offence provisions beyond doubt". (Section 85ZE does however, according to the government, already apply to email messages because email is not included in the relevant definition of "Internet content".)

Apparently the Federal Government has reversed its previous position and now intends to introduce publishing laws applicable to Internet users, which to date have been considered to be within the powers of the States and Territories.

There has been (and still is) doubt about the Commonwealth's constitutional powers in relation to the applicability of s.85ZE to Internet content. For example, a FAQ concerning on-line content regulation issued by Senator Alston's department has, since it was first issued in mid 1999, stated (Q 1.2): "Section 85ZE of the Crimes Act 1914 makes it an offence to knowingly or recklessly use a carriage service in a manner which a reasonable adult would find offensive. Some prosecutions in relation to online content have been initiated under section 85ZE. However, successful prosecutions under this provision have been on the basis of guilty pleas and therefore its application to online services has not been fully tested by a court."

Reference to "offensive" content is disturbing because Federal Government spokespeople have frequently used the term to refer to content that would be classified R18, i.e. unsuitable for minors, and content depicting non-violent sexually explicit activity between consenting adults. It remains to be seen exactly what type of speech the government is referring to as "offensive" in this instance.

The Ministers' media release says:

"People using the Internet to advocate or facilitate violent protests, for example by spreading information on methods of violently disrupting international meetings and attacking police officers protecting such gatherings ... are amongst those who could be prosecuted under the new offences." [emphasis added]

The reference to protests obviously arises from a complaint last year by NSW Police Minister Michael Costa about websites organising protests in relation to the World Trade Organisation. (See: Ellison to pull plug on protest websites, Courier Mail, 7 Nov 2002). However, the Australian Broadcasting Authority found the material complained about did not breach existing laws that prohibit information that "promotes, incites or instructs in matters of crime or violence".

It therefore seems clear that an offence that would catch the type of material Mr Costa complained about would go beyond prohibiting content that incites in matters of crime or violence. Given the breadth of the existing censorship law, which the government apparently deems inadequate, the new offence seems likely to have the effect of prohibiting political speech and use of the Internet to organise protest rallies.

As demonstated by the decision in Michael Brown & Ors v OFLC [1998] 319 FCA, the provisions of existing censorship laws prohibiting material that "promotes, incites or instructs in matters of crime or violence" enable the banning of even a satirical article published in a university student journal. EFA considers that decision, to the extent that it may represent Australian law, is a matter for law reform by the Commonwealth and States. As the decision presently stands, it appears descriptions of Mahatma Gandhi's campaign of non-violent civil disobedience could be Refused Classification (i.e. banned) under Australian censorship laws.

It could not be considered a reasonable position for the RC classification, nor any new offence, to extend to matters outside the Brandenburg v. Ohio, 395 U.S. 444 (1969) definition:

"Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

In the USA, the First Amendment protects speech advocating illegal actions unless it fails the Brandenburg v. Ohio test above. In the case of web pages and online chat boards, the information may not be seen until some time after it is published. It is also likely to be read by people sitting at home in front of their computers, not at a protest rally where advocated illegal actions could immediately take place. Hence speech on websites and online chat boards is unlikely to meet the Brandenburg test that listeners be incited to imminent lawless action that is likely to occur.

An attempt by the Australian government to ban a broader range of speech on the global Internet than that which meets the Brandenburg test will be as ineffective as the existing Commonwealth Internet censorship laws. Groups protesting against organisations such as the World Trade Organisation are world wide, and Australian laws will not prevent group members overseas making information available to Australians online that Australian law deems "offensive" or regards as "incitement".