Offensive content
Australian and New Zealand approaches to
offensive content on the Internet are somewhat
similar in structure, in that they both rely on classifications systems and entities with the power to
investigate online content. But their approaches
are very different in terms of what is considered
offensive and what is done about the offending
content.
Australian laws relating to the censorship of
offensive content are based on the powers delineated in and protections omitted from the
Australian constitution. Section 51(v) of the document gives the Parliament power to “make laws
for the peace, order, and good government of the
Commonwealth with respect to: (v) postal, telegraphic, telephonic, and other like services.” 4
With no explicit constitutional protection of free
speech, the Australian government has invoked
its “communications power” to institute a restrictive regime of Internet content regulation.
The Broadcasting Services Amendment
(Online Services) Bill 1999, an amendment to the
Broadcasting Services Act 1992, establishes the
authority of the Australian Communications and
Media Authority (ACMA) 5 to regulate Internet
content. The ACMA is empowered to look into
complaints from Australians about offensive content on the Internet and issue takedown notices.
The ACMA is not mandated to scour the Internet
for potentially prohibited content, but it is allowed
to begin investigations without an outside complaint. 6
Web content that is hosted in Australia may
be removed by the ACMA if the Office of Film and
Literature Classification finds that it falls within
certain categories as defined by the
Commonwealth Classification (Publications,
Films and Computer Games) Act 1995, a cooperative classification system agreed to by the
national, state, and territorial governments.
The levels and definitions of prohibited content are as follows:
• R18—Contains content that is likely to be
disturbing to those under eighteen. This
content is not prohibited on domestic hosting sites if there is an age-verification system certified by the ACMA in place.
• X18—Contains nonviolent sexually explicit
content between consenting adults. This
content may be subject to ACMA takedown
provisions if hosted on domestic servers.
• RC—Contains content that is Refused
Classification (child pornography, fetish,
detailed instruction on crime, and so on) 7
and is prohibited on Australian-hosted sites.
The classification system chosen for Internet
content is not the publications classification system but the more restrictive standard used for
films. As a result, some content allowable offline
is banned when brought online. 8
Once the determination has been made that
content hosted within Australia is prohibited, the
ACMA issues a takedown notice to the Internet
Content Host (ICH). It is not illegal for the ICH to
host prohibited content, but legal action could be
taken against it by the government if it does not
comply with the take-down notice.
For offensive content hosted outside of
Australia, the ACMA itself determines whether
content is prohibited and notifies a list of certified
Web-filter manufacturers to include the prohibited sites in their filters. 9 To obtain certification,
these certified “Family Friendly Filters” must
agree to keep lists of prohibited sites confidential. 10 ISPs are then required to offer a Family
Friendly Filter to all of their customers, though
customers are not required to accept them. 11 As
a result, content taken down in Australia could be
posted outside of the country and still be accessible to the majority of Australian Internet users.
Electronic Frontiers Australia, a nonprofit group
Regional Overviews
167
Australian and New Zealand approaches to
offensive content on the Internet are somewhat
similar in structure, in that they both rely on classifications systems and entities with the power to
investigate online content. But their approaches
are very different in terms of what is considered
offensive and what is done about the offending
content.
Australian laws relating to the censorship of
offensive content are based on the powers delineated in and protections omitted from the
Australian constitution. Section 51(v) of the document gives the Parliament power to “make laws
for the peace, order, and good government of the
Commonwealth with respect to: (v) postal, telegraphic, telephonic, and other like services.” 4
With no explicit constitutional protection of free
speech, the Australian government has invoked
its “communications power” to institute a restrictive regime of Internet content regulation.
The Broadcasting Services Amendment
(Online Services) Bill 1999, an amendment to the
Broadcasting Services Act 1992, establishes the
authority of the Australian Communications and
Media Authority (ACMA) 5 to regulate Internet
content. The ACMA is empowered to look into
complaints from Australians about offensive content on the Internet and issue takedown notices.
The ACMA is not mandated to scour the Internet
for potentially prohibited content, but it is allowed
to begin investigations without an outside complaint. 6
Web content that is hosted in Australia may
be removed by the ACMA if the Office of Film and
Literature Classification finds that it falls within
certain categories as defined by the
Commonwealth Classification (Publications,
Films and Computer Games) Act 1995, a cooperative classification system agreed to by the
national, state, and territorial governments.
The levels and definitions of prohibited content are as follows:
• R18—Contains content that is likely to be
disturbing to those under eighteen. This
content is not prohibited on domestic hosting sites if there is an age-verification system certified by the ACMA in place.
• X18—Contains nonviolent sexually explicit
content between consenting adults. This
content may be subject to ACMA takedown
provisions if hosted on domestic servers.
• RC—Contains content that is Refused
Classification (child pornography, fetish,
detailed instruction on crime, and so on) 7
and is prohibited on Australian-hosted sites.
The classification system chosen for Internet
content is not the publications classification system but the more restrictive standard used for
films. As a result, some content allowable offline
is banned when brought online. 8
Once the determination has been made that
content hosted within Australia is prohibited, the
ACMA issues a takedown notice to the Internet
Content Host (ICH). It is not illegal for the ICH to
host prohibited content, but legal action could be
taken against it by the government if it does not
comply with the take-down notice.
For offensive content hosted outside of
Australia, the ACMA itself determines whether
content is prohibited and notifies a list of certified
Web-filter manufacturers to include the prohibited sites in their filters. 9 To obtain certification,
these certified “Family Friendly Filters” must
agree to keep lists of prohibited sites confidential. 10 ISPs are then required to offer a Family
Friendly Filter to all of their customers, though
customers are not required to accept them. 11 As
a result, content taken down in Australia could be
posted outside of the country and still be accessible to the majority of Australian Internet users.
Electronic Frontiers Australia, a nonprofit group
Regional Overviews
167