The government’s own censorship laws will prevent Senator Conroy’s proposed internet filtering method of using the ‘refused application’ classification process, Prof George Williams writes. “Unworkable and unsuitable” is how he describes the current proposal, in legal terms.
Filter idea flawed by censor law
By George Williams*
The Rudd government’s proposal for a mandatory internet filter banning material refused classification under Australian law is legally flawed. Australia’s classification law is not compatible with such a proposal, and in fact has its own problems that make it unsuitable as a basis for any internet ‘clean feed’.
Publications, movies and computer games that are ‘refused classification’ cover a wide spectrum. They not only deal with child pornography, explicit sex and extreme violence, but also controversial areas like euthanasia and abortion that are outlawed in all or part of Australia.
Working out whether something should be refused classification cannot be undertaken in any mechanical or formulaic way, such as by using word recognition or other automated techniques. The decision requires a personal, individual judgement that is by its nature highly subjective.
This is an inevitable consequence of Australian classification law. It says that the decision must take into account ‘the standards of morality, decency and propriety generally accepted by reasonable adults’ and ‘the literary, artistic or educational merit’ of the material. These criteria mean that it is not just a matter of determining what subject the material deals with, but how it should be viewed in light of community values and its broader context.
For example, a photo of a naked child in a book may not be rated as ‘refused classification’ if it is in a medical textbook or has significant artistic merit. It may be child pornography but for its other redeeming qualities. An assessment could only be made in a considered, careful way that involves human judgement.
Classification law also says that the decision depends on who might view the material. This will pose a quandary when it comes to the internet. The current system recognises that some material will ordinarily be viewed by adults, such as television programming late at night. If, on the other hand, the lowest common denominator is applied to the internet such that it is all seen as freely accessible to children, material that can now be viewed late at night on television could be censored once it hits the world wide web.
The result is that the internet filter would still require classification decisions to be made by people and not computers. Each web page facing a ban would need to be given an individual assessment. The page would also need to be reassessed each time it is altered because even subtle changes could take it in or outside of being ‘refused classification’.
Even if government sought to undertake this task by establishing an enormous new classification bureaucracy, it would still be impossible. The size of the internet is so vast, and the rate of its change so fast, that is inconceivable that any rating system based upon human decision-making could be effective.
The alternative is to devise a new classification law that allows for computer-based judgements. This will undermine the goals of the current scheme. Classification decisions are designed to be made by humans for good reason. After all, it is censorship that we are talking about. The current system recognises that complex, contextual judgements are required and that works cannot be classified merely by their subject matter. A new computer-based law will risk this, and will also produce inconsistencies between what Australians can access on the internet as opposed to read or view in publications, movies and computer games.
Australian classification law also has its own problems that make it inappropriate for use in an internet filter. In 2007 the Howard government introduced legislation that refuses classification to material advocating terrorist acts. The law censors material that ‘directly praises the doing of a terrorist act in circumstances where there is a risk that such a praise might have the effect of leading a person (regardless of his or her age or any mental impairment that the person might suffer) to engage in a terrorist act’.
This change means that material praising Nelson Mandela’s fight against apartheid is banned if it might lead any person to commit a terrorist act. Material can be censored not due to the possible response of a reasonable person, but due to that of someone who is acting irrationally or under the influence of a severe psychosis. This remarkably broad and unjustifiable form of censorship would be picked up by the internet filter.
Australia’s proposed internet filter has a range of problems, including its legal basis. The idea of having a ‘clean feed’ that excludes material refused classification is flawed. The new regime cannot piggyback on Australia’s current classification system as that law is an unworkable and unsuitable basis for rating internet content.
George Williams is the Anthony Mason Professor of law at the University of NSW, and a member of Civil Liberties Australia.
This article first appeared in the SMH on 24 May 2010.