Access Denied: artists under Australia’s mandatory internet filter

Over the past year, digital Australia has been blogging and tweeting about the federal government's decision to impose a mandatory filter over the internet. Such a measure, so Communications Minister Stephen Conroy says, is aimed at preventing children from being exposed to obscene material, particularly child pornography, online. The filter will implemented through legislation forcing internet service providers (ISPs) to block websites containing material 'refused classification'.

The response to this proposal – at least online – has been overwhelmingly negative. Civil rights campaigners say the filter is a dangerous limitation on freedom of expression and puts Australia in the same club as regimes infamous for internet censorship like China and Burma. Internet experts claim that the filter will be technically pointless as it can be easily circumvented, won't cover the hidden 'dark net' of networks that distribute child pornography, and could slow access to or even block high traffic websites such as Wikipedia and Facebook. Even Google has weighed in, stating that it will not voluntarily comply with government requests to censor YouTube because the 'refused classification' criteria is too broad, and has along with Yahoo expressed support for filter opposition groups.

For artists, the implications of a mandatory filtered internet are immense. Classification, as many artists know, can have a profound effect on the exhibition and distribution of their work, sometimes resulting in censorship. Here, Arts Law gives a quick rundown of how the filter will work and what it could mean for artists online.

What is 'Refused Classification'?

The proposed mandatory filter aims to block websites containing material 'refused classification' (RC). Under the National Classification Code a publication, film or computer game is RC if it:

1. describes or depicts matters of sex, cruelty, drug abuse, or revolting/abhorrent phenomena in such a way as to offend a reasonable adults' standards of morality and decency to the extent that it should not be classified (ie., it can't be classified under another rating such as X18+ or R18+ );
2. describes or depicts in a way that is likely to cause offence to a reasonable adult, a person who is or appears to be a child under 18 (whether the person is engaged in sexual activity or not); or
3. promotes, incites or instructs in matters of crime or violence.

This can include not only illegal material such as child pornography or terrorism advocacy, but also socially or politically controversial material that isn't necessarily illegal such as sexual fetishes, homosexuality, abortion and euthanasia.

Whether or not something is RC is determined by the Classification Board. If the Board rates something RC it is effectively a ban of the material in Australia. This is because under the Classification Guidelines all publications, films and computer games are required to be classified before they can be sold, hired or shown in public.

How will the internet filter work?

At present, the proposed filter is two-tiered: a mandatory filter blocking RC material for all Australian internet users, and an additional optional filter blocking X18+ and R18+ material. This is different to a computer level filter – of which there are already many available – which blocks material for a specific computer without affecting others, and can be customised for an individual or parent's personal needs.

The mandatory filter will block sites listed on an RC Content List ('the List') maintained by the Australia Communications and Media Authority (ACMA). The List will be based on public complaints to ACMA and assessed according to the national classification scheme. If ACMA determines that a website subject to complaint matches or is likely to match a RC rating it will add the website to the List.

The List will be separate from the current 'blacklist' of sites containing prohibited content used by ACMA. 'Prohibited content' is defined under the Broadcast Services Act as being RC or X18+ material and R18+ or MA15+ material not subject to a restricted access system, however ACMA can also add websites containing potentially prohibited content that would – in ACMA's view – likely be prohibited if classified by the Board. Websites on this blacklist are passed on to commercial filter vendors or if hosted in Australia, sent a takedown notice.

The content of the ACMA blacklist is confidential and not subject to freedom of information laws, and the RC Content List will be likewise kept secret. This is because the internet being what it is any website can be located given enough keywords or a web address. In contrast, the list of material rated RC by the Board is public.

It has been pointed out by the Communications Minister that democracies such as Canada and the United Kingdom use internet filters. However, unlike Australia's proposed filter the filters in these countries are non-government, voluntary, and limited to child sexual abuse material. Even then these filters have made mistakes, such as in 2008 when the United Kingdom filter accidentally blocked the entirety of Wikipedia to British internet users over one "potentially illegal" image of a 1977 music album, even though the album itself had never been banned and was still available in shops both online and offline.

How will the filter affect artists?

For artists, the filter has many unanswered questions. What will blocked? Who decides what should be blocked? Can a decision to place a website on the List be reviewed? Since the definition of RC is unclear it leaves plenty of room for misinterpretation and 'scope creep' for the List to expand and include material beyond its original intention. What is offensive to some is not to others, and the RC rating can and has been applied to many things including sexually explicit film Baise Moi, mature computer games Manhunt and Reservoir Dogs, and a satirical article on shoplifting in a student newspaper.

To understand how the List could operate, it's useful to consider what is known about the ACMA blacklist, allegedly leaked in March 2009. As well as illegal child pornography sites the blacklist reportedly included legal adult entertainment sites, fetish sites, Christian sites, YouTube links, and the apparently hacked website of a Queensland dentist. Inquiries in May 2009 Senate Committee hearings revealed the blacklist of the time was 32% illegal RC child abuse material or pornography, 19% unspecified RC material, and 49% material rated X18+, R18+ or MA15+. Although nobody denies that children abuse material and pornography should be illegal and stopped, the blacklisting of material which is legal (ie., not RC) is not acceptable to the arts community or the broader community.

The implications of a filtered internet are even more worrying when one considers just how vital the internet is for information and communication. Australia Council research shows the internet is now a key tool for people to engage with the arts, and today most artists have some form of internet presence whether their own website or promotional images on a gallery's website. If, rightly or wrongly, an artist's website was blocked by the filter, how would audiences know about the artist? How would arts organisations advertise exhibitions? They couldn't, because on the internet if something is filtered out, as far as your computer is concerned that something doesn't exist.

To put this in perspective, consider the 2008 Bill Henson controversy where after a public complaint Mr. Henson's photographs were seized by the police. It's no stretch of the imagination to think that had the internet filter been in place then, not only would the public complaint have resulted in the police seizing Mr. Henson's physical photographs, but also in the addition of Mr. Henson's website to the List of blocked sites. As things were, the year after the Henson controversy it was discovered the ACMA blacklist included a website containing photographs by Mr. Henson. These photographs had been previously rated PG by the Classification Board. When the inclusion of Mr. Henson's photographs on the blacklist was revealed, ACMA said it had occurred due to "computer error."

Have your say

It is important that artists and arts organisations comment on laws and policies that affect them. Although formal submissions on the government's consultation paper on the filter have closed, if you want to make your concerns known you can do so by contacting Communications Minister Stephen Conroy (www.dbcde.gov.au), the Arts Minister (www.arts.gov.au), or your local Member of Parliament.

Jo Teng is a solicitor at Arts Law.