RC content, including many forms of adult pornography, is generally not unlawful to use, access, possess, or create in Australia merely by virtue of its RC status. Only material that is otherwise legislatively criminalized, such as material depicting child abuse and certain terrorism-related content, is unlawful. Moreover, Australia has no X 18+ or R 18+ category for video and computer games. This means that extremely violent video games beyond the MA 15+ classification level are necessarily categorised as RC.28 The lack of a R +18 classification for video games has led to some peculiar results with games such as Aliens vs Predators initially given an RC classification which was later amended to M+ 15.29 When a game is classified as RC often the developer will slightly modify the game to ensure an M+15 ranking.The currently existing classification system suffers from a lack of transparency, and there is no mechanism available for owners or creators to challenge the classification of RC content, which can be subject to take-down notices or possible blocking in the future by the proposed filter. Only the ISP or similar intermediary hosting the material may bring a challenge to the Administrative Appeals Tribunal (AAT). Australian content owners are not informed by the ACMA if it issues a take-down notice to their host.
See generally Alana Maurushat and Renee Watt, Australia’s Internet filter Proposal in the International Context, Internet Law Bulletin April 2009, page 18-25; and David Vaile and Renee Watt, “Inspecting the Despicable, Assessing the Unacceptable:
Prohibited Packets and the Great Firewall of Canberra” (2009) University of New South Wales Law Review Series 35.
The Sydney Morning Herald, “Internet Filter is Right: Gillard” October 12, 2010 http://news.smh.com.au/breaking-newsnational/internet-filter-is-right-gillard-20101012-16hiz.html.
Libertus.net, “Australia’s Internet Censorship System,” http://libertus.net/censor/netcensor.html;
Wikileaks, “Australian Government Secret ACMA Internet Censorship Blacklist, 18 Mar 2009.” Australian Government – Classification Review Board 2009, Alien vs. Predator – Review Board Decision Reasons, http://www.classification.gov.au/www/cob/rwpattach.nsf/VAP/%28C7C220BBE2D77410637AB17935C2BD2E%29~Decis ionReasons-AliensvsPredator-Final-4January2010.pdf/$file/DecisionReasons-AliensvsPredator-Final-4January2010.pdf.
See generally Chalk, OFLC reveals changes to Australian Fallout 3, August 13, 2008, http://www.escapistmagazine.com/news/view/85646-OFLC-Reveals-Changes-To-Australian-Fallout-3.
AUSTRALIA FREEDOM HOUSE Freedom on the Net Journalists, commentators, and ordinary users are not subject to censorship so long as their content does not amount to defamation or breach criminal laws, such as those against hate speech or racial vilification.31 Nevertheless, the need to avoid defamation has been a significant driver of self-censorship by both the media and ordinary users (see “Violations of Users’ Rights”).
Australians have access to a broad choice of online news sources that express diverse, uncensored political and social viewpoints. Individuals are able to use the internet and other technologies both as sources of information and as tools for mobilization.Digital media such as blogs, Twitter feeds, Wikipedia pages, and Facebook groups have been harnessed for a wide variety of purposes ranging from elections, to campaigns against government corporate activities, to a channel for safety-related alerts where urgent and immediate updates were required.33 For instance, Google Maps was used in a creative endeavour to map out fire dissemination in the devastating 2009 wildfires that spread across the State of Victoria.VIOLATIONS OF USER RIGHTS Australians’ rights to access internet content and freely engage in online discussions are based less in law than in the shared understanding of a fair and free society. Legal protection for free speech is limited to the constitutionally implied freedom of political communication, which only extends to the limited context of political discourse during an election.35 The full range of human rights in Australia, unlike in other developed democratic nations, are not protected by a bill of rights or similar legislative instrument, though the country is a signatory to the International Covenant on Civil and Political Rights.
Nonetheless, Australians benefit greatly from a culture of freedom of expression and freedom of information, further protected by an independent judiciary. However, the Australian press has consistently expressed concerns about a “culture of secrecy” that Jones v. Toben  FCA 1150 (17 September 2002), http://www.austlii.edu.au/au/cases/cth/FCA/2002/1150.html, accessed June 2010.
Re Lim, “Cronulla Riot: Confiscation of Mobile Phones, Invasion of Privacy and the Curbing of Free Speech,” Act Now, March 15, 2006, http://www.actnow.com.au/Opinion/Cronulla_riot.aspx, accessed June 2010;
Les Kennedy, “Man in Court Over Cronulla Revenge SMS,” Sydney Morning Herald, December 6, 2006, http://www.smh.com.au/news/national/man-in-court-over-cronulla-revenge-sms/2006/12/06/1165081008241.html.
Digital media, for example, is readily used for political campaigning and political protest in Australia. See Terry Flew, “Not Yet the Internet Election: Online Media, Political Content and the 2007 Australian Federal Election” (2008) http://eprints.qut.edu.au/39366/1/c39366.pdf.
Global Voices, “Australian Wildfire and Web Tools,” February 9, 2009, http://globalvoicesonline.org/2009/02/09/australian-wildfires-and-web-tools/.
Alana Maurushat, Renee Watt, “Australia’s Internet Filtering Proposal in the International Context”;
Australian Press Council, “Press Law in Australia,” http://www.presscouncil.org.au/pcsite/fop/auspres.html#insult, accessed June 2010.
AUSTRALIA FREEDOM HOUSE Freedom on the Net continues to inhibit reporting.36 A 2007 report commissioned by Australia’s Right to Know (ARTK), a coalition of media companies formed to examine free press issues, found that there were over 500 pieces of legislation containing “secrecy” provisions to restrict media publications. It also found barriers to accessing court information, little protection for whistleblowers, and inadequate shield laws to protect journalists.The Anti-Terrorism Act 2005 revived laws against sedition and unlawful association.
The unlawful association provisions have been used widely since their enactment with the banning of several organizations perceived to be potentially dangerous in terms of intentions to commit violent acts.38 The sedition provisions, however, have not been used. Further, insults against government institutions or officials would not fall within the sedition provisions.Australian defamation law has been interpreted liberally,40 and is governed by legislation passed by the states as well as common-law principles. Civil actions over defamation are common and form the main impetus for self-censorship,41 though a number of cases have established a constitutional defense when the publication of defamatory material involves political discussion.42 In the online context, the lack of clarity on the responsibility of website operators to delete defamatory comments posted by other users has caused controversy. Court costs and stress associated with defending against suits under defamation laws have caused organizations to leave the country and blogs to shut down.43 In one prominent case, the operator of the Australian discussion board ZGeek was named as a defendant in a defamation suit over comments posted on the forum that were critical of Greg Smith’s conspiracy theory films.44 Smith sued ZGeek in 2009 for over A$42 million (US$41 million) claiming that he did not land a lucrative film contract due to the comments.
Although the Australian courts struck down the defamation suit, ZGeek announced plans to move its discussion forum to another jurisdiction. David Rolph, Matt Vitins, and Judith Bannister, Media Law: Cases, Materials and Commentaries (South Melbourne: Oxford University Press, 2010), 44.
Irene Moss, Report of the Independent Audit into the State of Free Speech in Australia (Surry Hills, New South Wales: Australia’s Right to Know Coalition, 2007), http://www.smh.com.au/pdf/foIreport5.pdf.
Andrew Lynch and George Williams, What Price Security (UNSW Press, 2006) pages 41 to 59.
See note above.
Chris Nash, “Freedom of the Press in Australia,” Democratic Audit of Australia, November 19, 2003, http://democratic.audit.anu.edu.au/papers/20031119_nash_press_freed.pdf. For more information generally on press freedom in Australia, see Reporters Without Borders, http://en.rsf.org/australie.html, accessed June 2010.
Irene Moss, Report of the Independent Audit; Electronic Frontiers Australia, http://www.efa.org.au/category/defamation/, accessed June 2010.
Human Rights Constitutional Rights, “Australian Defamation Law,” http://www.hrcr.org/safrica/expression/defamation.html, accessed June 2010.
See note 32 above; High Court of Australia, “Dow Jones & Company Inc v Joseph Gutnick,” news release, December 10, 2002, http://www.hcourt.gov.au/media/dowjones.pdf.
Asher Moses, “Online Forum Trolls Cost me Millions: Filmmaker” The Sydney Morning Herald, July 9, 2009, http://www.smh.com.au/technology/technology-news/online-forum-trolls-cost-me-millions-filmmaker-20090715-dl4t.html.
EFA, “ZGeek Law Suit Struck Down” July 2009, http://www.efa.org.au/2009/07/15/zgeek-defamation-lawsuit-struckout/.
AUSTRALIA FREEDOM HOUSE Freedom on the Net Criminal defamation charges have also been filed over online content. Adelaide teenager Christopher Cross was convicted in November 2009 of criminal defamation for creating a Facebook group dedicated to criticizing a local police officer. Offensive comments, and some statements encouraging acts of violence against the constable, were posted on the page. Cross was convicted and placed on a two-year and A$500 (US$492) good behaviour bond. If Cross breaches the bond he could conceivably face up to three years in jail.46 Under Australian law, a person may also bring a defamation case based on information posted by someone outside of Australia providing that the material is accessed in Australia and that the defamed person enjoyed a reputation in Australia.
Law enforcement agencies may search and seize computers, and compel an ISP to intercept and store data from those suspected of committing a crime. Such actions require a lawful warrant. The collection and monitoring of the content of a communication falls within the purview of the Telecommunications (Interception and Access) Act 1979 (TIAA).
Call-charge records, however, are regulated by the Telecommunications Act 1997 (TA).47 It is prohibited for ISPs and similar entities, acting on their own, to monitor and disclose the content of communications without the customer’s consent.48 Unlawful collection and disclosure of the content of a communication can draw both civil and criminal sanctions.The TIAA and TA expressly authorize a range of disclosures, including to specified law enforcement and tax agencies, all of which require a warrant.
ISPs are currently able to monitor their networks without a warrant for “network protection duties,” such as curtailing malicious software and spam.50 Australia has announced plans to accede to the Convention on Cybercrime.51 Unlike many other countries that have already ratified the convention, Australia is expected to go beyond the treaty’s terms in calling for greater monitoring of all internet communications by ISPs.
Under the convention, an ISP is only required to monitor, intercept, and retain data when presented with a warrant, and only in conjunction with an active and ongoing criminal investigation. A document leaked in June 2010 from the Attorney General’s Department describes a range of possible policy options under which Australian ISPs would be required to monitor, collect, and store information pertaining to all users’ communications. This would be done without a warrant and enforced against all users regardless of whether there Nigel Hunt, “Teen Guilty of Facebook Slur,” Sunday Mail (SA), November 22, 2009, http://www.adelaidenow.com.au/news/south-australia/teen-guilty-of-facebook-slur/story-e6frea83-1225801651074.
Telecommunications Act 1997, Part 13, http://www.austlii.edu.au/au/legis/cth/consol_act/ta1997214/.
Part 2-1, section 7, of the Telecommunications (Interception and Access) Act 1979 (TIAA) prohibits disclosure of an interception or communications, and Part 3-1, section 108, of the TIAA prohibits access to stored communications. See http://www.austlii.edu.au/au/legis/cth/consol_act/taaa1979410/.
Criminal offenses are outlined in Part 2-9 of the TIAA, while civil remedies are outlined in Part 2-10.
Alana Maurushat, “Australia’s Accession to the Cybercrime Convention: Is the Convention Still Relevant in Combating Cybercrime in the Era of Obfuscation Crime Tools” University of New South Wales Law Journal 16, no. 1, forthcoming.
Convention on Cybercrime, Council of Europe, http://conventions.coe.int/Treaty/Commun/QueVoulezVous.aspNT=185&CL=ENG, accessed June 2010.
AUSTRALIA FREEDOM HOUSE Freedom on the Net is a criminal investigation.52 This compulsory data-retention policy, if enacted, could become a great threat to online freedom in Australia. The document is not official policy in Australia nor has it evolved into a concrete proposal or bill. As of December 2010, therefore, it was unclear whether such a policy would be realized in Australia.
Users do not need to register to use the internet, nor are there restrictions placed on anonymous communications. However, under a new election law in the state of South Australia that came into effect in January 2010, any individual posting a political comment in the run-up to local elections would be required to do so with their real name and address.