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Ah, censorship. What is it about censorship that brings out the silliness in legislators? Why is it that the idea of censoring the Internet gets people so excited they forget to work out whether the laws are at all sensible?

Crikey has today leaked a November draft proposed Australian Internet censorship law: the Communications Legislation Amendment (Content Services) Bill 2006. I’ve had a look. It’s unbelievable.

Crikey report that the bill has been redrafted. It had better be. Better still would be to forget it altogether. Because this draft doesn’t pass the laugh test. Really. It is inconsistent with fundamental values like freedom of speech and freedom of information; it is broad, draconian, and wouldn’t work, it is completely out of step with the way the Internet works (it seems to require pre-emptive monitoring of content by hosts before it even goes online). I think I’m back in the year 2000 – the last time this same government tried to write an Internet censorship law. More on why this draft is so bad over the fold. [update: Pete Black has also commented, along very similar lines to me, here]

The basic way the Bill works is to make it an offence for a commercial content service provider, or ISP, to make available to prohibited content or potential prohibited content to end-users via a telephone or internet.

OK, before we even get into the definitions, think about that for a minute. Under this draft, the material would only have to be put online for an offence to be committed. There would be an offence even if no one ever looked at it. Even if no one ever complained. What does that mean? To be law-abiding, if you were covered by this law you would need to preemptively monitor material before you put it online. (compare that to our current online censorship laws introduced back in 1999, which only kick in once someone complains).

Admittedly, it’s only a little offence, with a little fine: $5500. But there could be on the spot fines. And there’s a separate offence every day the stuff stays online.

Given this approach, you would assume that the stuff we are talking about must be really bad, if we are going to be talking about offences from the moment the stuff goes online, right?

Wrong. Look at what content the law covers:

1. Prohibited content: content classified RC or X 18+ by the Classification Board or classified R 18+ or MA 15+ by the Classification Board where access to the content is not subject to a restricted access system
2. potential prohibited content: content has not been classified by the Classification Board, but if it were to be classified, there is a substantial likelihood that the content would be prohibited content

What’s more, we are not just talking about film stuff. We are talking about text (so include in that books, magazine articles, blogposts); pictures and animations, speech (so include in that podcasts); as well as film.

As Crikey points out:

Films that have been given the MA 15+ rating in recent years include Saving Private Ryan and the Geoffrey Rush vehicle Quill. So how would books such as Dostoevsky’s Crime and Punishment or Nabokov’s Lolita or, more recently, Nikki Gemmell’s Shiver or Lionel Shriver’s We Need to Talk about Kevin fare? It is likely they would attract an M 15+ rating too, meaning that what is legal to sell unrestricted in bookshops or put on library shelves could become restricted on line.

Of course, there are some exemptions: a bunch of things the drafters decided should be allowed on the internet. They are:

1. any broadcast material, including stuff that has been broadcast and then is made available online;
2. services providing material from the proceedings of courts, tribunals, official inquiries, and parliament
3. news and current affairs services;
4. search engines (as long as they don’t specialise in dodgy stuff)
5. point to point services (email, SMS or instant messaging) – but not chat services
6. “exempt user based content services” – meaning services that have the sole or dominant purpose of allowing end-users to upload content to be accessed by end users, and access content uploaded by end users (as long as they don’t specialise in dodgy stuff)
7. exempt user based online trading service: ie eBay

So, Wikipedia, YouTube – they are probably safe, right? As is Blogger and other bloghosts.

But what about other webpages? What about a standalone blog? Or Project Gutenberg?

To be covered, you have to be providing a commercial content service. So what’s that? Well, a content service is:

a service that delivers content to persons having equipment appropriate for receiving that content, where the delivery of the service is by means of a carriage service

A lot turns on what counts as a ‘service’. Do you know what that means? No, I don’t either. But it doesn’t clearly exclude the average standalone blog, for example. After all, a blogger will post regularly (so is arguably a service). And for the blogger, their purpose might not be allowing users to put material up – but rather, to put their own material up. The average website? Arguably, providing an information service, right? information that is updated, and accessible 24/7?

you also have to be commercial, but that’s pretty broad. A commercial content service is one that:

1. is operated for profit or as part of a profit making enterprise;
2. is provided to the public (whether on payment of a fee or otherwise); and
3. has an Australian link

Quick! take those Google ads off now!!! Maybe we can argue that blogs and other websites are ‘news and current affairs’. Well, most of us anyway.

And what about our overseas friends? How close does the link have to be to Australia before material will be censorable under this regime? According to the draft, a content service has an Australian link if, and only if:

1. the content service is provided in the course of carrying on a business in Australia; or
2. the central management and control of the content service is in Australia; or
3. the content service is provided through an agent in Australia; or
4. any of the content delivered by, or accessible using, the content service is kept on one or more data storage devices in Australia; or
5. any live streamed content delivered by, or accessible using, the content service originates in Australia; or
6. any participant in a voice/video call is present in Australia.

So. If you are an overseas outfit but have an Australian office? Caught. Even the particular service happens to be based overseas. Do they want to drive away the overseas companies??? I can just see them trying to enforce these laws.

Now, looking at the legislation, it is worth noting that ACMA would have a bunch of powers to negotiate with people over this, given them notices telling them to take stuff down, etc etc etc. I’m sure this draconian, nasty looking legislation could be enforced in a way that was more cooperative than anything else.

That doesn’t make it ok. Because regardless, it would be the case, under this legislation, that to be law abiding, you would have to pre-emptively monitor stuff. And at any time, you could be told you’ve committed some offence.

As you can see, this November draft had a LOT of problems. As I noted above, it has been ‘redrafted’, and we have yet to see what that means. But looking through, we had better hope that the redraft isn’t a re-write, but a completely new version. Because there isn’t a single thing about this November draft to like, as far as I can see.

And can someone please tell me where the ‘crisis’ is that could possibly justify even thinking about draconian legislation of this kind? Which, can I remind you, wouldn’t work because we would still have all the overseas stuff being made available on the internet. Because one little turkey-slapping incident seen by 0.000000000000001% of the population (who are looking online at 2am, so are unlikely to be under 15) just doesn’t explain this draft. As Susan Crawford noted recently in this general space, surely the better approach isn’t that hard to work out:

‘focus on education and actually prosecute bad guys (rather than just fighting with the internet)’

Oh, for a constitutionally enshrined right of free speech.