How many sites would Australia's Net censorship scheme kill?

Aimed at porn, the bill would push service providers to block anything even remotely risqu

Published June 7, 1999 4:00PM (EDT)

At first blush, it's hard to see why the creators of a site called Glass Wings are nervous about the Internet censorship bill passed by the Australian Senate on May 26. The site is devoted mainly to storytelling, cartoons and recipes. But its Sensual Celebrations section could become a target of the new law, which is expected to be ratified by the Australian House of Representatives within two weeks and would require Internet service providers to block adult content or face stiff penalties.

Sensual Celebrations is no porn site: It's a small, and rather tame, collection of essays and stories about relationships and sexuality. Its authors ponder the joys of masturbation, calling it "gonad solitaire," and guide readers through the challenges of "moving nookie outside of the bedroom" -- giving somewhat less than serious consideration to such obstacles as pine needles, grass seeds and flying insects. But even such articles could be endangered by the proposed law, say Glass Wings co-creators Katherine Phelps and Andrew Pam.

That's because the law would essentially turn ISPs into legal enforcers with a vested interest in expunging sexuality from the Web as it's accessed in Australia. In an attempt to make the Net safe for children, Australian legislators have proposed fines as great as 27,500 Australian dollars per day -- or more than U.S. $18,000 -- for ISPs that fail to properly block "prohibited content."

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The proposed law -- due to take effect on January 1, 2000 -- would work like this: The Australian Broadcasting Authority, which regulates Australian radio and television, will accept complaints about porn or other "prohibited content or potential prohibited content" on Internet sites, then assess the sites and ask the Classification Board to rate them, just as it currently rates films. Any time a site gets an X rating, the ABA will be obliged to issue a take-down notice to the domestic Internet host; an R rating means only people over 18 can access the site, although it's not clear how this provision would be enforced. The host has 24 hours to comply -- and classifications cannot be reviewed for two years. The ABA may also order Australian ISPs to block access to sites overseas by filtering proxy servers.

Critics see huge potential for the law to result in a complete eradication of material even vaguely related to sex. "Service providers are being required to determine for themselves the likelihood that certain material will be R, X or RC [for restricted content] rated," says Phelps in a Freedom of Sexpression article, running under the banner "Freedom? Fuck Yes!" on the Glass Wings site. "These people who have specialized in networking expertise are qualified in what way to make these determinations? In order to be safely within the law, service providers are likely to remove content far more broadly than legally required." And she believes relationship-advice articles and safe-sex stories like those on her site could be the victims.

The way her partner Pam sees it, ISP-level filtering is inevitable: "The incentives are huge for ISPs to take down sites to be on the safe side," he says, adding that the law could easily result not just in overzealous censorship, but a winnowing-out of ISPs. Considering how quickly the Net community reposts anything that "authorities" have ordered taken down, it's unlikely that anyone has the resources to police even a specific naughty photo spread, much less an entire Web's worth. The cost of continuously monitoring content and updating blacklists "would be prohibitive," says Pam, "and Australia's 650 ISPs will be dramatically reduced."

The law has provoked a chorus of criticism both on and off the Net. Street protests have been held in Sydney, Melbourne, Brisbane, Perth and Adelaide, and the government's e-mail servers were bombarded with so many complaints to the bill's author, Sen. Richard Alston, Australia's minister of communications, that the system was shut down. As their U.S. peers did when the Communications Decency Act passed in 1996, many Australian ISPs and sites turned their pages black in protest on the days immediately following the Senate's passage of the bill. Some Web servers introduced filters to block Internet access requests from the domain, effectively shutting out some Australian government access to the Web.

Prime Minister John Howard was not amused. "I say to those who are protesting against it that you don't understand the mood of middle Australia on this, you don't understand how deeply many parents feel about it, with some justification," he said on a radio program last week.

For the country's online adult entertainment industry -- ironically based in Canberra, the national capital -- the writing is on the wall. The Eros Foundation, a national lobby group for the Australian sex industry, says up to 50 percent of its members are already arranging to move their Australian-hosted content overseas. Eros spokesman Robbie Swan says, "This bill is a disaster ... It's a bad situation and it will get worse." Some Eros members are moving not just their content, but their entire operations offshore: "Now the bill has been passed, we won't get any new members [who run adult sites] because they can't host their sites here."

The icing on the cake of this bill is a provision that exempts any Australian ISP from legal responsibility for voluntarily conforming with the legislation and removing sites even before they have been prohibited by the ABA. Proprietors of a site that is filtered out or taken down are left with little ground to stand on and little legal recourse for what could be deemed a denial of their commercial rights.

So even sites that don't offer porn are looking into contingency plans. Glass Wings, for example, has been looking for overseas partners that will mirror the site to keep the Sensual Celebrations section alive even if the site is blocked by local ISPs. And Pam says he knows of other sites attempting the same strategy.

But even as sites concerned about their future scurry to make contingency plans and angry Net users wage protests, many observers argue that the proposed law doesn't stand much chance of achieving its goals. Apart from the difficulty of monitoring the vast number of sites hosting adult content and the ease with which material can be moved from site to site, the law's focus on actually taking sites down could prove its undoing. ISPs will only be responsible for abiding by such take-down notices based on "the technical and commercial feasibility of taking the steps." It's not clear what would happen in the event that it was too difficult or expensive to block prohibited material.

But it is likely that the more famous porn sites from overseas will suffer more than the lesser known mom-and-pop shops. For example, the ABA would likely have the Playboy site blocked, but not the thousands of smaller sites it doesn't know exist.

Though critics contend that this legislation was put together hastily and rushed through the Senate, the law has lengthy antecedents. Australia's Parliament has been examining the issue of Net censorship since 1995, holding inquiries into the control of bulletin-board services and the then-nascent Web.

Since then, Australia has achieved the second-highest percentage of households online in the world, and the Net -- once perceived as the domain of young men -- has become a family entertainment medium. But as it has grown, so has public concern that children are, as Prime Minister Howard has said, "being bombarded with pornography." And Alston, the communications minister, says the law he drafted isn't meant to broadly censor the Web. It intends simply to ensure that "the Net is a clean place to visit, " he says. "Even children are worried about their younger brothers and sisters being exposed to this sort of material."

For Pam, the law "amplifies an existing trend" toward greater censorship. Australia has no bill of rights guaranteeing freedom of speech, although it is a signatory to the U.N. human rights convention on free communications. Australia's approach to censorship has inspired critics to compare the democracy to regimes like Iran, Burma, China and Saudi Arabia. In fact, the proposed law is more like a collage of measures used in a number of less repressive countries. Belgium, the Netherlands and the United Kingdom all have watchdog committees to act on public complaints, and the United States has made two efforts to pass laws restricting Net content. While no other democratic country has imposed a ban on Net porn, it's unlikely that Australia's new law will result in an all-out ban.

In theory, the ABA will only require that sites be blocked if someone lodges a complaint against them. And the Australian government doesn't propose to mandate what hosts must do to block offensive material from overseas. Instead, the Australian law requires the industry to regulate itself through a "code of practice," which the law would require the industry to create. Should the Net industry fail to come up with its own code, the ABA will impose its own.

ISPs might agree, for example, to use regularly updated content filters or offer customers software like NetNanny. Many Net users feared that overseas content would have to be filtered at the ISP level, but the law has set that forth as only one of several options. (The government's own scientific advisors argued that blocking by blacklists or packet filtering was futile and could screen out innocent content or even have an adverse effect on e-commerce.)

Pam of Glass Wings anticipates a profound cultural effect with nasty long-term consequences for the Australian online industry. He predicts a further exodus of technology workers -- primarily to the United States, where they can make more money and avoid the potential hostility of the Australian Net environment. In the wake of the Australian Parliament's attempt to censor the Net, some are already planning to move their sites, if not themselves, offshore.

By Paul Gardiner

Paul Gardiner is a former editor of Rolling Stone Australia who now writes and consults on publishing and the Internet.

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