When Senator Conroy announced a live pilot to assess, among other things, the technical feasibility of filtering the ACMA blacklist of so-called "prohibited content", he described the list as containing "child sexual abuse, rape, incest, bestiality, sexual violence, and detailed instruction in crime".
So, when three copies of the list were posted on Wikileaks, people were surprised to find it included ordinary pornography, horror movie clips, anti-abortion sites, pro-euthanasia sites, and poker sites.
These are not errors. These sites are on the blacklist because the definition of "prohibited content" under the Broadcasting Services Act 1992 (Cth) is much broader than people assume.
"Prohibited content" is not just illegal content. It includes all content classified RC and X 18+; content classified R 18+ that is not subject to a restricted access system (which I’ll explain later); and certain commercial content classified MA 15+ that is not subject to a restricted access system.
A "restricted access system" is a system that requires a person seeking access to online content to apply for that access and either declare that he or she is at least 15, or prove that he or she is at least 18 (for example, by providing a valid credit card number), depending on whether the content is classified MA 15+ or R 18+. This is in much the same way that cinemas require proof of age for screenings of certain films.
It should be clear from the definition of "prohibited content" that such content, as a class, is not illegal. MA 15+ and R 18+ movies screen in public cinemas after all. But what about X 18+ and RC content? Most people have some idea of the type of content that’s classified MA 15+ and R 18+, but don’t necessarily know what’s classified X 18+ and/or refused classification (RC).
Any real depiction of actual sexual activity is classified X 18+, so long as it doesn’t feature any RC content.
Content that’s refused classification (RC) is quite diverse. It includes depictions of sexual fetishes, like body piercing, application of substances such as candle wax, golden showers, bondage, spanking and fisting.
It also covers extreme violence, sexual violence, child pornography, incest fantasies, and bestiality, as well as detailed instruction in crime and detailed instruction in the use of certain drugs.
The law regulating X 18+ and RC content in each state and territory of Australia is beyond the scope of this article. Suffice to say that in most places in Australia, possession of X 18+ and RC content is not an offence, though sale of X 18+ and RC content is. Possession of child pornography is, of course, illegal all over Australia.
So, if prohibited content, as a class, is not prohibited, what is it? The answer is that it’s merely a class of content in relation to which ACMA has certain powers when it’s found online.
Under the Broadcasting Services Act 1992 (Cth), when ACMA finds prohibited content hosted in Australia, it must issue a take-down notice directing the provider to cease providing the content to the public or, if it’s in relation to MA 15+ or R 18+ content, to make it subject to a restricted access system.
The provider must comply with the notice as soon as practicable, but no later than 6:00pm on the next business day. Failure to do so can result in fines up to $11,000 per day (or $55,000 per day for corporations).
In addition to take-down notices, ACMA can also issue a service-cessation or link-deletion notice. These notices apply to live prohibited content (such as live video) and links to prohibited content respectively. They operate the same way, requiring the provider to cease providing the live content or the link.
When ACMA finds prohibited content hosted overseas, it notifies the content to the makers of the "Internet Industry Association Family Friendly Filters" pursuant to an industry code that’s been registered under the Act. Under this code, each ISP provides at least one IIA Family Friendly Filter to users who want one, at cost.
IIA Family Friendly Filters are software packages approved by the IIA that users can optionally install on their systems to filter their internet connections. It was from one of these filters, Integard, that the three ACMA blacklists posted on Wikileaks were extracted.
So, the regulation as it stands effectively creates an opt-in filtering regime for prohibited content hosted overseas, while at the same time making hosting prohibited content in Australia impractical, since providers have to remove such content when a notice is inevitably issued. Importantly, though, it’s not an offence to host or link to prohibited content in Australia. It’s only an offence to fail to comply with a notice from ACMA.
After Whirlpool was threatened with an $11,000 per day fine for linking to a blacklisted anti-abortion site, some people expressed concern that they’d be fined for linking to a site on a secret list, even though they had no way of knowing what was on that list.
As explained above, this isn’t the case. You could get a notice from ACMA if you host or link to prohibited content, but you won’t be fined unless you fail to comply with it. (Particular content may be illegal under state or territory law though. For example, possession and copying of RC content is illegal in Western Australia.)
Understanding that the ACMA blacklist is of prohibited content and that prohibited content is not just illegal content, it is clear why the sites mentioned earlier are on the list.
Ordinary pornography sites are on the list because they feature real depictions of sexual activity. Such content would be classified X 18+ or, if it featured a sexual fetish, RC.
A clip from a horror movie posted on YouTube is included because it would be classified R 18+. YouTube requires users to declare that they are at least 18 before viewing the clip, but in order for this site not to be listed as "prohibited" a restricted access system would have to require proof of age.
The anti-abortion sites on the list contain graphic images and video of abortions and aborted foetuses. The content is not subject to any restricted access system. Presumably, these images and videos would be classified R 18+ or RC.
The pro-euthanasia sites on the list provide detailed instruction in the use of drugs like Nembutal. Under current guidelines, such instruction is classified RC.
Finally, the list also contains some sites that don’t host prohibited content, like a Queensland dentist’s website and an astrology website. These sites were added to the list because, at the time, they had been defaced with prohibited content. The legislation makes no distinction between sites intentionally hosting prohibited content and those that have been defaced with such content.
But what about the poker sites? Poker sites, and other gambling websites, aren’t prohibited content under the Broadcasting Services Act 1992 (Cth), but they are "prohibited Internet gambling content" under the Interactive Gambling Act 2001 (Cth).
Under that Act, ACMA has essentially the same powers in relation to overseas-hosted prohibited internet gambling content as it does in relation to overseas-hosted prohibited content. That is, it notifies the content to makers of IIA Family Friendly Filters. This is why websites like PartyPoker.com end up on the blacklist too.
The most important thing about all of the above is that this is regulation that’s been in place since 2000. The current Government hasn’t clearly stated what it proposes to change.
Initially, the Government indicated it would mandate filtering of the existing ACMA blacklist. The Department of Communications website still says that "filtering would block content using a blacklist of prohibited sites … which are defined as "prohibited" under Australian legislation which has been in place since 2000".
More recently, the Government said in a media release that it "has indicated an interest in [filtering]content that is refused classification" (emphasis added). Senator Conroy made corresponding statements on SBS’s Insight and Triple J’s Hack programs. In the latter, he insisted that this has always been the case.
Even if that is the case, the nature of internet filtering is such that any blacklist will have to be secret, mistakes will be made, and circumvention will be easy. And RC is a broad category that includes material that many Australians find unobjectionable.
Perhaps it would be better if each Australian could decide for him- or herself what is objectionable. This is how the internet has always worked in Australia, and we haven’t descended into anarchy yet.