Censorship – Electronic Frontiers Australia https://www.efa.org.au Promoting and protecting digital rights in Australia since 1994. Fri, 13 Apr 2018 04:00:40 +0000 en-AU hourly 1 Australian Government must reinstate phone and internet access to asylum seekers https://www.efa.org.au/2017/11/06/access-for-asylum-seekers/ https://www.efa.org.au/2017/11/06/access-for-asylum-seekers/#respond Mon, 06 Nov 2017 07:08:55 +0000 https://www.efa.org.au/?p=8604 Continue reading ]]> Digital Rights Watch Australia and Electronic Frontiers Australia today urge the Australian Government to ensure that the human rights of asylum seekers and refugees being held in offshore detention camps on Manus Island (Papua New Guinea) and Nauru are respected.

The Australian Government’s offshore processing system which has established these camps has resulted in violations of various rights protected under international human rights treaties to which Australia is a party, including the Universal Declaration of Human Rights (UDHR) and the International Convention on Civil and Political Rights (ICCPR).

Angela Daly from Digital Rights Watch Australia said, "The United Nations High Commissioner for Refugees has made it very clear that Australia has an ongoing responsibility to the individuals whom it has transferred to Manus and Nauru under this system. This includes their right to communicate by phone and Internet."

EFA Chair Lyndsey Jackson said, "The detainees on Manus and Nauru do not have adequate access to phone and Internet communications, in breach of their right to free expression. Australia needs to honour its obligations under these treaties, in particular Article 19 of the UDHR and ICCPR which guarantees the right to free expression, including the freedom to seek, receive and impart information and ideas of all kinds. In particular, Australia should reinstate asylum seekers phone and internet communications in the Manus Island camp, which have recently been removed."

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Open Rights Group: The London Attacks https://www.efa.org.au/2017/06/05/org-london/ Sun, 04 Jun 2017 23:29:48 +0000 https://www.efa.org.au/?p=8149 Continue reading ]]> ORG logoOpen Rights Group condemns the appalling attack at London Bridge; this is not only a violent assault on individual lives but an attack against the freedom and security we enjoy in the UK.

It is disappointing that in the aftermath of this attack, the Government’s response appears to focus on the regulation of the Internet and encryption.

This could be a very risky approach. If successful, Theresa May could push these vile networks into even darker corners of the web, where they will be even harder to observe.

But we should not be distracted: the Internet and companies like Facebook are not a cause of this hatred and violence, but tools that can be abused. While governments and companies should take sensible measures to stop abuse, attempts to control the Internet is not the simple solution that Theresa May is claiming.

Real solutions—as we were forced to state only two weeks ago—will require attempts to address the actual causes of extremism. For instance, both Jeremy Corbyn and Theresa May have drawn attention to the importance of finding solutions to the drivers of terrorism in countries including Syria, Iraq and Libya.

Debating controls on the Internet risks distracting from these very hard and vital questions.

This article is by Jim Killock, Executive Director of the UK's leading digital rights advocacy organisation, Open Rights Group. It is republished here under a Creative Commons Attribution-ShareAlike (CC-BY-SA) licence. See the original article.

We have chosen to republish this article, and their previous statement about the Manchester attack to emphasise EFA's support for ORG's position. As we've also said in the past, EFA firmly rejects any law, policy, or mandate that would undermine digital security.

After the 'Facebook Files', the social media giant must be more transparent https://www.efa.org.au/2017/05/24/facebook-more-transparent/ Wed, 24 May 2017 02:00:49 +0000 https://www.efa.org.au/?p=8068 Continue reading ]]> Most people on Facebook have probably seen something they wish they hadn’t, whether it be violent pictures or racist comments.

How the social media giant decides what is and isn’t acceptable is often a mystery. Internal content guidelines, recently published in The Guardian, offer new insight into the mechanics of Facebook content moderation.

The slides show the rules can be arbitrary, but that shouldn’t be surprising. Social media platforms like Facebook and Twitter have been around for less than two decades, and there is little regulatory guidance from government regarding how they should police what people post.

This article is by Nicolas Suzor from Queensland University of Technology and was originally published on The Conversation. See the original article.

In fact, the company faces a significant challenge in trying to keep up with the volume of posted content and often conflicting demands from users, advertisers and civil society organisations.

It’s certainly cathartic to blame Facebook for its decisions, but the true challenge is to work out how we want our online social spaces to be governed.

Before we can have that conversation, we need to know much more about how platforms like Facebook make decisions in practice.

The secret work of policing the internet

Apparently weighing in at thousands of slides, the newly published guidelines give some more detail to the vague community standards Facebook shares with its users.

Most of the documents are training material for Facebook’s army of content moderators who are responsible for deciding what content should go.

Some of the distinctions seem odd, and some are downright offensive. According to the documents, direct threats of violence against Donald Trump will be removed (“someone shoot Trump”), but misogynistic instructions for harming women may not be (“to snap a bitch’s neck, make sure to apply all your pressure to the middle of her throat”).

The Guardian’s Facebook Files explainer video.

The rules appear to reflect the scars of legal and public relations battles Facebook and other social media platforms have fought over the last decade.

The blanket rule against images of nude children had to be changed after Facebook controversially banned the famous image of Kim Phuc fleeing napalm bombing during the Vietnam War. After years of controversy, a specific procedure now exists so people can request the removal of intimate images posted without their consent.

Because these rules develop over time, their complexity is not surprising. But this points to a bigger problem: without good data about how Facebook makes such decisions, we can’t have informed conversations about what type of content we’re comfortable with as a society.

The need for transparency

The core problem is that social media platforms like Facebook make most decisions about what constitutes acceptable speech behind closed doors. This makes it hard to have a genuine public debate about what people believe should be allowable to post online.

As the United Nations’ cultural organisation UNESCO has pointed out, there are real threats to freedom of expression when companies like Facebook have to play this role.

When governments make decisions about what content is allowed in the public domain, there are often court processes and avenues of appeal. When a social media platform makes such decisions, users are often left in the dark about why their content has been removed (or why their complaint has been ignored).

Challenging these decisions is often extremely difficult. Facebook allows users to appeal if their profile or page is removed, but it’s hard to appeal the moderation of a particular post.

OnlineCensorship.org provides guidance to users about how to appeal content moderation decisions.

OnlineCensorship.org provides guidance to users about how to appeal content moderation decisions.

To tackle the issue of offensive and violent content on the platform, Facebook says it will add 3,000 people to its community operations team, on top of its current 4,500.

“Keeping people on Facebook safe is the most important thing we do,” Monika Bickert, head of global policy management at Facebook, said in a statement. “We work hard to make Facebook as safe as possible while enabling free speech. This requires a lot of thought into detailed and often difficult questions, and getting it right is something we take very seriously”.

But without good data, there is no way to understand how well Facebook’s system is working overall – it is impossible to test its error rates or potential biases.

Civil society groups and projects including Ranking Digital Rights, Article 19 and the Electronic Frontier Foundation’s OnlineCensorship.org have been advocating for more transparency in these systems.

Facebook and other social media companies must start listening, and give the public real insight and input into how decisions are made.

[EDITOR] Please also see the statement from Monika Bickert, Facebook's Head of Global Policy Management: Facebook’s Community Standards: How and Where We Draw the Line


Blocking access to illegal file-share websites won't stop illegal downloading https://www.efa.org.au/2016/12/21/blocking-access-wont-stop-downloading/ Wed, 21 Dec 2016 04:01:48 +0000 https://www.efa.org.au/?p=7481 Continue reading ]]> Pirate Bat logoThe Australian Federal Court ruled last week that TPG, Optus, Telstra and other internet service providers (ISPs) must take “reasonable steps” to stop customers accessing file-sharing websites The Pirate Bay, IsoHunt, TorrentHound and Torrentz.

In total, Australian ISPs must block access to 61 domains registered to these four websites, or to the IP addresses specifically listed in the orders.

The court also ordered that addresses belonging to SolarMovie be blocked, even though it is no longer operational.

This article is by Paula Dootson, Senior Research Fellow; PwC Chair in Digital Economy, Queensland University of Technology; Kylie Pappalardo, Lecturer, School of Law, Queensland University of Technology, and Nicolas Suzor, Associate professor, Queensland University of Technology. It was originally published on The Conversation. Read the original article.

Importantly, the court refused a request that the ISPs be required to ban new domains or IP addresses as they pop up (the “whack-a-mole” problem). This is a win for due process, because it ensures that the court maintains control over the process.

But it also shows that this is largely a symbolic victory. The experience from overseas shows how easy it is for a site such as The Pirate Bay to change its address faster than courts can keep up.

Consumers can also easily use VPNs and proxies to access the sites through private and secure connections.

The court ordered ISPs to block access within 15 business days of its decision. After this time, any user trying to access one of the blocked domains will be redirected to a webpage established by copyright owners, which will inform them that the domain has been blocked because of copyright infringement.

The Federal Court’s orders will be in effect for three years. During that time, if The Pirate Bay or any of the other websites operates from a different domain name, IP address or URL than those listed in the order, copyrights owners may apply to have the order extended to the site’s new location.

First use of new powers to block websites

This case is the first use of a new law, introduced in 2015, that allows copyright owners to apply to the Federal Court for an order requiring ISPs to block access to foreign-hosted websites.

Under the new provision, section 115A, copyright owners must show that the foreign-hosted website has the primary purpose of facilitating copyright infringement.

If a court order is granted, the ISP must take reasonable steps to disable access to the online location. The Federal Court has further powers make orders about the technical means by which the ISP must disable access.

These laws are becoming more common around the world, as major copyright owners try to find legal solutions to copyright infringement.

An important concern about the Australian law is that it is potentially very broad in scope. Section 115A empowers the Federal Court to require an ISP to block access to a foreign website whose “primary purpose” is to “facilitate” copyright infringement. But these words are not defined in the Act or in existing case law.

This uncertainty creates a risk that section 115A may be applied sweepingly, with potentially serious consequences for internet users.

One of the wins for consumers in today’s decision is that the Court has signalled that it will keep a close watch on future applications to extend these orders.

Requiring ISPs to be copyright police

Australian ISPs have been under a lot of pressure over the past few years to help copyright owners police their rights.

In the iiNet trial, the High Court found that iiNet had no obligation to terminate the internet access of subscribers suspected of using BitTorrent to download and share copyrighted files.

After iiNet, the failed “three-strikes” agreement would have seen ISPs pass on allegations of infringement to their users. But in the end, nobody could agree about who would pay for the scheme.

iiNet was again before the courts last year in the Dallas Buyers Club case, in which it successfully fought off “surreal” demands to hand over the contact details of its subscribers who were alleged to have downloaded the film over BitTorrent.

Now that iiNet has been bought by TPG, there are fewer Australian ISPs with the money and political will to stand up for their users’ interests. The ISPs in this case, as with the three strikes agreement, seemed mostly concerned about who should bear the costs of the blocking scheme.

Because this is a case between large copyright owners and ISPs, the interests of consumers have not been well represented.

Will this stop illegal downloading?

This ruling will likely have limited impact on copyright infringement in Australia.

Consumer research shows that illegal downloading occurs because consumers lack cheap, easy, accessible channels to access content legitimately.

The most recent example is the release of The Grand Tour series exclusively on Amazon’s pay-to-view service.

The program was illegally downloaded en masse beating even HBO’s Game of Thrones to become the most pirated show, reports the Daily Mail. Consumers blame rights-holders for failing to meet market demand, and this encourages a social norm that infringing copyright, while illegal, is not morally wrong.

Some of our preliminary research indicates that exclusive licensing strategies (like Kanye West’s initial release of Life of Pablo only on Tidal) are also likely to increase the willingness of consumers to infringe copyright.

The problem is that constraining access to illegal content through site-blocking does nothing to address the core motivations for infringement.

Most Australians want to do the right thing – and generally, they are willing to pay for the content they want. This is evident from the large numbers of Australians who circumvent geo-blocking in order to access the US versions of paid services such as Netflix and iTunes.

But without legitimate means of access, consumers feel they have no choice but to download the content illegally.

What is the solution?

Site-blocking is not the solution to illegal downloading. In the 17 years since Napster, one of the first file-sharing services, punitive legal responses are yet to be proven effective at reducing rates of infringement.

This experience suggests that stricter copyright laws are not the most effective way to address copyright infringement.

Instead of investing resources into legal proceedings, we suggest that rights-holders should invest in innovative platforms that provide consumers with greater access to content in a timely manner at a fair price.

The Conversation

Inquiry into freedom of speech really isn't https://www.efa.org.au/2016/11/08/speech-inquiry-isnt/ https://www.efa.org.au/2016/11/08/speech-inquiry-isnt/#comments Tue, 08 Nov 2016 05:06:34 +0000 https://www.efa.org.au/?p=7313 Continue reading ]]> Attorney-General's Department. CC-BY

Attorney-General George Brandis. Image copyright Attorney-General's Department (CC-BY)

EFA is disappointed that the Attorney-General has ignored the major threats to freedom of expression in Australia in framing the terms of reference for the parliamentary inquiry he announced today.

The extremely narrow terms of reference for this inquiry mean that it is not ‘an inquiry into freedom of speech’ as the Attorney’s media release claims.

There are many serious threats to free expression in 21st century Australia, including our archaic and inconsistent defamation laws, section 35P of the ASIO Act, censorship of the Internet and the chilling effects of mass surveillance.

EFA Executive Officer Jon Lawrence said today, “if the Attorney wants to call his inquiry one into ‘freedom of speech’ then he needs to include the major threats to free expression in the terms of reference. The issues around section 18C of the Racial Discrimination Act hardly qualify as major threats to free expression.”

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Election 2016 Scorecard https://www.efa.org.au/2016/06/29/election-2016-scorecard/ https://www.efa.org.au/2016/06/29/election-2016-scorecard/#comments Wed, 29 Jun 2016 08:12:26 +0000 https://www.efa.org.au/?p=7083 Continue reading ]]> Recently, we released our Election 2016 scorecard. We were really pleased to see a lot of substantive and thoughtful replies from the smaller parties. As in 2013, Pirate Party Australia and the Australian Greens have scored full marks. For the first time this year, the Science Party and the Liberal Democrats have also scored full marks. The Glenn Lazarus team scored very close to full marks, but was marked down slightly for supporting site-blocking for copyright enforcement.

EFA Election 2016 Scorecard

EFA commends this trend toward better protection of digital rights from the smaller parties. Digital rights are human rights, and as more of our daily experience becomes virtual, robust and enthusiastic protection of our digital rights is vital for a free, open and functioning democracy. As an organisation made up of citizens, and as an organisation advocating for citizens and full digital citizenship, EFA is at once encouraged by the enthusiasm of the smaller parties for digital rights, and concerned about the policy platforms and recent legislative history of both the Liberal and Labor parties. We do want to acknowledge, however, that we were pleased that the Liberal party did complete our questionnaire, showing at least some interest in digital rights.

With the election now only days away, we want to remind voters that digital rights are under threat in Australia and throughout the world, and urge them to keep digital rights in mind at the ballot box. To that end, we wanted to provide you with a more thorough examination of what we mean when we say “digital rights”, as well as the policy platforms of some of the parties who will appear on your ballot on Saturday.

1.     Surveillance

Surveillance is becoming endemic to the online experience, and while polls consistently shows Australians are concerned about their privacy online, thanks to the silence of the major parties, the issue is yet to gain traction as part of the political debate.

We asked the parties specifically for their positions on data retention: who could access the data, how long the data should be held, and in which circumstances. All respondents, with the glaring exception of the Liberal and Labor parties, put forward policy positions we can endorse, and which prioritise the privacy of users. As the Science Party told us, “[t]he extensive list of offices already seeking access for reasons that have nothing to do with national security shows the potential for misuse”. Furthermore, as the Greens noted, “[n]umerous international examples, most prominently in the EU demonstrate that these schemes have no measurable impact on crime clearance rates.”

It is worth noting, however, that we have given the Labor party a slightly better score on surveillance than the Liberals: although both voted for data retention, Labor did push hard for a number of important improvements to the legislation, such as the inclusion of a warrant requirement for access to journalists' data and better reporting. They also passed a motion at their most recent National Conference to review this legislation if they form the next government. While these are admittedly fairly minor factors, we felt they warranted a slightly better score.

In 2014, the then Human Rights Commissioner, Tim Wilson, raised concerns about the “chilling effect on free speech [and on] the information we choose to impart” of data retention laws, which is a concern shared by EFA. Broad-spectrum surveillance of users who are not even suspected of committing a crime is a serious threat to the exercise of free speech, and threatens to curtail a robust and vibrant public discourse around policy.

2.     Encryption

It is the position of EFA that strong encryption technology is a critical enabler of both commerce and communications, and that it forms part of the foundation on which a modern, agile economy may be built. EFA has watched with alarm as, in Australia and around the world, strong encryption has come under legislative attack. Recently, we released an open letter calling for the Liberal and Labor parties to endorse the support for strong encryption advanced in a letter received from the Department of Prime Minister and Cabinet on behalf of the Prime Minister in February.

Again, of the nine parties we scored, only Liberal and Labor failed to receive full marks.

3.     Copyright Reform

In 2013 the Australian Law Reform Commission (ALRC) recommended that Australia adopt a number of reforms to modernise the Copyright Act, particularly a broadening of the currently limited fair dealing exceptions to a much broader, flexible fair use exception, in line with US copyright law.

In December 2015, the Government released draft legislation which included reforms which address a number of key issues (such as extending the Safe Harbour scheme and facilitating the implementation of the Marrakesh Treaty) but which fall well short of the introduction of a broad, flexible fair use exception.

In April 2016 the Productivity Commission issued a draft report which supported the ALRC’s recommendation for Australia to adopt a broad, flexible fair use exception.

We rated parties based on support for the (limited) reform proposals put forward by the government, and asking if they supported a flexible fair use exception. Despite a little bit of confusion on Twitter, the Greens, as well as the Pirate Party, the Sex Party, the Science Party, the Liberal Democrats and the Glenn Lazarus Team all gave answers, or have standing policy, we can endorse. We didn’t have enough information to give the Nick Xenophon Team a score. Once again, however, the Liberal and Labor parties failed to score full marks.

Although neither the Liberal nor Labor parties have policies we can endorse, it is worth noting that the Liberal party has indicated that they are willing to consider copyright reform in light of the Productivity Commission report.

4.     Copyright Enforcement

In relation to copyright enforcement, we looked at parties’ support of site-blocking in the case of copyright infringement, as well as whether or not they supported ISPs being required to serve notice on those of their customers who are alleged to have infringed copyright.

We were disappointed to note that the Glenn Lazarus team, while they did support copyright reform, and did not support ISPs being required to serve notice on their customers, did support site-blocking. This was the only position of the Glenn Lazarus team we could not endorse, and is the reason the Glenn Lazarus Team did not receive full marks. As with copyright reform, we did not have enough information to score the Nick Xenophon team, one way or another.

Otherwise, all parties, with the exception of Liberal and Labor, received full marks for their positions on copyright enforcement.

5.     Censorship

In terms of censorship, we looked at support for mandatory internet filtering, although, as above, we believe that widespread surveillance also has a chilling effect on speech which is its own type of censorship.

Censorship was a clean sweep for the smaller parties, with every party, apart from Liberal and Labor, scoring full marks. Liberal and Labor, however, scored the lowest mark possible.


If you got sick of reading “except for the Liberal and Labor parties”, rest assured, I also got pretty tired of typing it! We are extremely disappointed with both parties’ approach to digital rights. From data retention to copyright infringement, both the government and the opposition are out of step with evolving community norms, apparently unconcerned with the privacy of their citizenry, and failing to provide much-needed leadership on digital rights issues. This election, EFA can’t endorse either party as being even adequate on digital rights.


Authorised by J. Lawrence, 31 Arden Street, North Melbourne VIC 3051

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Google expands the ‘right to be forgotten’, but Australia doesn't need it https://www.efa.org.au/2016/03/08/right-to-be-forgotten-australia/ https://www.efa.org.au/2016/03/08/right-to-be-forgotten-australia/#comments Tue, 08 Mar 2016 01:31:36 +0000 https://www.efa.org.au/?p=6787 Continue reading ]]> Image: kaikaku

Image: kaikaku

Search engines play an indispensable role in our information age. They are how we navigate the internet. Without their assistance, most of us would be lost. When access to their functionality is limited, our substantive access to information is limited.

This is exactly the point behind the so-called “right to be forgotten”. The term refers to the European Union law that aims to protect privacy by requiring search engines to remove links to certain personal data.

More accurately, it is a right to delist. Whatever you want to call it, the law, by design, limits public access to information.

This post, by Michael Douglas from Curtin University was originally published on The Conversation. See the original article

What is the right to be forgotten?

In the 1990s, Spanish man Mario Costeja González had financial problems that found their way into an online newspaper piece. Years later, González wanted that past forgotten, but the internet would not forget.

González asked the newspaper to remove the article. When it refused, he asked Google to stop linking to it in search results. When it refused, complaints escalated to court proceedings.

The proceedings culminated in a May 2014 European Court of Justice decision. The court held Google has an obligation to remove links to personal data that are inadequate, irrelevant, no longer relevant, or excessive.

This obligation did not bind the newspaper; only Google was required to remove links to the offending article even if the article itself would remain online. This obligation, which also affects other search engines, is the gist of the right to be forgotten.

Google receives a hospital handpass

The court held that the right to be forgotten must be “fairly” balanced against the public interest in having access to information. Generally, the right to delist would trump the interests of other internet users. However, in some cases, the balance should be struck the other way and the information should not be removed.

In most cases, Google is responsible for striking that balance.

Since May 2014, Google has taken requests for the removal of links from its search results. It deals with those requests internally and is publishing quantitative data in its transparency report. Google has received almost 400,000 requests and has removed more than 500,000 URLs from its search results.

Court proceedings are heard in open court, ensuring justice is done and is seen to be done. Google’s process is less transparent. Is it desirable to make a multinational company responsible for balancing fundamental human rights?

Scuffles over scope

The scope of the right to be forgotten has been contentious. Since May 2014, Google has begrudgingly implemented it in Europe while taking a narrow view of what it must do to comply. It has removed links, but only in its European-domain incarnations, such as google.co.uk.

Content that was removed from European search results is still available, even within Europe, by simply using a version of Google from a non-European country.

This has upset Europeans. In November 2014, a European Commission working party called for the right to be enforced globally. In May 2015, this was echoed by the French Data Regulator.

Google appealed the regulator’s order to expand the delisting worldwide. In September 2015, the appeal was rejected. If Google refused to comply, it could face the prospect of massive fines.

Globalised censorship?

Google has recently backed down. This week it is expanding its implementation of the right to be forgotten to cover all domain-name iterations of its search engine.

This looks like a global expansion of European law, but it should only affect internet users in Europe. If a user’s device has a European IP address, all versions of Google will have right-to-be-forgotten links removed. If the device has an IP address of any other place, the links will be available.

The right still faces implementation issues within Europe. For example, through use of a virtual private network, European internet users should be able to disguise themselves and avoid capture by Google’s IP-based filter. They could then access links that would otherwise be unavailable in that location.

It remains to be seen whether Google’s new stance will be acceptable to Europeans. To complicate matters, European authorities agreed in December to a revamped version of the right to be forgotten. The meaning of those changes is not entirely clear.

Dealing with digital eternity in Australia

After recently considering the matter in its inquiry into serious invasions of privacy in the digital era, the Australian Law Reform Commission found that Australia does not need the right to be forgotten. It did not recommend introduction of a right to delist in Australian law.

We should put aside objections that the right to be forgotten is too hard to implement, and focus on the ideological debate that divides most people on the issue. The debate might be characterised as a showdown: privacy and compassion versus information and freedom. But the solution need not be that simplistic.

We can agree that privacy matters but reject the right to be forgotten. We should recognise that the right has a negative impact on legitimate journalism. Access to information is an important aspect of the freedom of expression Australians enjoy.

We should also recognise the harm that results when certain content is accessible online. Enactment of a statutory tort for serious invasions of privacy would be a valuable compromise. It should be coupled with steps to improve access to the courts.

Measures designed to deter extreme online privacy violations, such as revenge pornography laws, should be welcomed by all.

Australia is a small part of a connected world. Australians will be affected as these issues are addressed on a global stage. However we decide to change our laws, increasingly, forgetting will be difficult.

The Conversation

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EFA launches Digital Rights 2016 campaign https://www.efa.org.au/2016/02/08/digital-rights-2016-launch/ https://www.efa.org.au/2016/02/08/digital-rights-2016-launch/#comments Mon, 08 Feb 2016 01:15:43 +0000 https://www.efa.org.au/?p=6586 Continue reading ]]> Digital Rights logoEFA today announces the launch of the Digital Rights 2016 campaign. This generic and non-partisan campaign is intended to raise awareness of the importance of digital rights throughout the Australian community in the lead-up to the 2016 Federal election and beyond.

The primary issues that will be addressed as part of the campaign are:

  • Privacy – including mass surveillance and privacy protections
  • Access – including net neutrality and digital inclusion (supporting the 2016 National Year of Digital Inclusion)
  • Censorship – promoting freedom of expression online
  • Digital Citizenship – promoting respect and tolerance and resisting bullying and harassment
  • Copyright – including enforcement activities and positive reform such as fair use

The campaign will not be presented as ‘an EFA campaign’ but is rather intended to be open for involvement and collaboration from as wide a range of interested parties as possible. EFA therefore invites civil society organisations, commercial entities and individuals across the country to support this campaign during this election year.

While launching the campaign at the EFA-hosted social event held at the end of Linux Conference Australia in Geelong on Friday 5th February, EFA Executive Officer Jon Lawrence said, “In an increasingly digitised world, digital rights need to be mainstream political issues. Australians lack the constitutional protections that are enjoyed by many other nations and the potential for abuse of these rights here is very real, whether from government overreach, private sector failures or individual actions. With support for innovation already set to be a key policy area for the election, it is critical that digital rights issues are also given mainstream attention.”

The Digital Rights 2016 campaign will utilise the digitalrights.org.au domain name as well as a dedicated Facebook page and Twitter account.

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Despite changes, terror law will still curb press freedom https://www.efa.org.au/2016/02/08/35p-press-freedom/ Sun, 07 Feb 2016 22:09:58 +0000 https://www.efa.org.au/?p=6574 Continue reading ]]> National Security Image

Commonwealth of Australia (CC-BY)

The government last week published a report from Roger Gyles, the Independent National Security Legislation Monitor, on the controversial Section 35P of the ASIO Act.

Attorney-General George Brandis intends to introduce amendments to the act that incorporate Gyles’ recommendations. This will go some way to making it more difficult to prosecute journalists under Section 35P. But, ultimately, the proposed changes will do little to reduce its significant impact on press freedom.

This article is by Keiran Hardy, Lecturer, School of Criminology and Criminal Justice, Griffith University and was originally published on The Conversation. Read the original article.

Remind me again – what is Section 35P?

Section 35P, introduced in 2014, gives immunity to ASIO officers who engage in unlawful conduct during the course of specially approved undercover operations. It also provides for five years’ imprisonment for anyone who discloses any information that relates to a Special Intelligence Operation (SIO).

An aggravated offence, punishable by ten years’ imprisonment, is available where such disclosure endangers health or safety or prejudices the operation.

The section has attracted significant controversy due to its impact on press freedom. Journalists face five years in jail for reporting any information that relates to an SIO, or twice that penalty if the disclosure would cause harm – even if the information would reveal that ASIO officers engaged in unlawful or inhumane conduct outside an operation’s scope.

Because of this, the offence is likely to have a wider chilling effect on media organisations’ ability to report on national security issues.

What changes have been recommended?

The major recommended structural change is to redesign Section 35P so that it targets two different categories of people: “insiders” and “outsiders”. This would mean that the offences in the section currently will apply only to intelligence employees or contractors. The offences’ amended version will apply to journalists and any other individual.

The change to the main offence in Section 35P means it will only apply when “outsiders” make a reckless disclosure that endangers health or safety or prejudices an SIO. Recklessness means the person is aware of a substantial risk of those circumstances arising and chooses to publish the information anyway.

This will make it more difficult to prosecute journalists compared to the offence as it stands. However, it does not address the major issue with the offence – that Section 35P does not provide any scope for journalists to disclose information in the public interest.

It may be that a journalist is aware of a substantial risk that disclosing information may prejudice an SIO, but believes in good conscience that the public should be informed about some unlawful or inhumane conduct in which ASIO officers are involved – such as torturing or blackmailing a suspect.

No change is to be made to the fault requirements for intelligence employees or contractors. Section 35P as applied to “insiders” will therefore be superfluous. Several other serious offences already apply to intelligence employees and contractors who disclose information obtained during the course of their employment.

Gyles also recommended the offences include an exemption for “outsiders” who disclose information that has already been disclosed by others. This exemption will have little practical effect. It is unlikely it would ever be in the public interest to prosecute a journalist for re-reporting information already in the public domain.

The government has indicated this exemption will only apply to those who take reasonable steps to ensure the secondary publication is not likely to cause harm. To avoid conviction, it will not be enough for a journalist to show that the information was already in the public domain. A journalist would also need to demonstrate that positive steps to avoid a risk of harm were taken prior to disclosure.

Still more that could be done

Gyles recognised that a defence for disclosing information in the public interest would be a useful addition to the offence, but considered this no longer necessary given the higher fault requirement to be introduced.

This is emphatically not the case. The higher fault requirement will require only that a journalist or other “outsider” was reckless in disclosing material that leads to a risk of harm. This will not provide any greater scope for journalists to prove ASIO officers engaged in unlawful conduct.

Until a public interest exemption is included in Section 35P, the offence will continue to have a significant impact on press freedom and a chilling effect on media organisations’ ability to report on ASIO’s activities.

Such an exemption could be drafted narrowly to allow the reporting by professional media organisations of significant unlawful activity, corruption or other serious misconduct in which ASIO officers are involved. This would strike an appropriate balance between protecting the SIO regime’s secrecy while allowing journalists to report responsibly on issues of public importance.

The Conversation

EFA welcomes proposed amendments to section 35P https://www.efa.org.au/2016/02/03/amendments-s35p/ Wed, 03 Feb 2016 13:03:28 +0000 https://www.efa.org.au/?p=6555 Continue reading ]]> EFA welcomes Tuesday’s announcement by the Attorney-General that the government has accepted and intends to implement all of the changes to section 35P of the ASIO Act that have been recommended by the Independent National Security Legislation Monitor.

Section 35P of the ASIO Act was added in 2014 as part of the government’s first ‘tranche’ of national security legislation and created a criminal offence with a prison term of up to 10 years for any disclosure of a ‘Special Intelligence Operation’.


ASIO HQ. © J Lawrence: CC-BY

The indiscriminate and overly broad nature of the current section combined with the inherent secrecy involved in ‘Special Intelligence Operations’ with severe penalties represents a direct threat to the ability of journalists to report on the activities of ASIO. As the Monitor explains in his report, it “creates uncertainty as to what may be published about the activities of ASIO without fear of prosecution.”

As EFA has pointed out previously, this chilling effect is a fundamental threat to Australia’s democracy as it undermines the media’s ability to hold these agencies to account when they exceed their authority or get things badly wrong.

EFA Executive Officer Jon Lawrence said today, “it is reassuring that the Independent National Security Legislation Monitor has concluded that section 35P arguably breaches the constitutional protection of freedom of political communication and is also inconsistent with Australia’s international obligations, specifically article 19 of the International Covenant on Civil and Political Rights. EFA welcomes the government’s acceptance of the Monitor’s recommendations to wind back some of the draconian controls on reporting of intelligence operations that section 35P represents. We would however like to see some additional protections introduced in the form of specific whistle-blower protections for ‘insiders’ to allow for disclosures where there is a clear public interest.”