FREE SPEECH AND CYBERSPACE

"The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." (Reno v ACLU )

Just as it is often said that prevention is better than cure, one does not need to talk about policies for liberal reform if one does not allow freedom to be surrendered in the first place. Although there are a number of policy issues surrounding the internet which could do with an examination from a liberal perspective, it is the issue of censorship which will be the focus of this paper.

THE INTERNET AS A VEHICLE FOR FREE SPEECH

The internet offers an opportunity for free speech which in many ways is unrivalled by conventional media. On the internet:

"Content providers do not merely consist of commercial organisations and on-line versions of the conventional media. They include individuals and organisations with a wide range of interests who may be providing content for a multitude of reasons beside commercial profit." (Gibson (1998))

One does not need to own a television station, be the editor of a newspaper or complete a degree in journalism to express an opinion on the internet. In the US courts, the internet has been hailed as "the most participatory marketplace of mass speech" precisely because " individual citizens of limited means can speak to a worldwide audience on issues of concern to them. " (ACLU v Reno) It is because of such features the internet has been hailed as the greatest tool for mass participatory democracy. (Dalzell J in ACLU v Reno ).

But this freedom is now being threatened by governments world wide. Despite the failure of it's previous attempt at censorship, the United States government is once again attempting to impose censorship legislation on internet content providers.

In Australia, the Department of Communications and the Arts (DoCA) has released its own proposal to regulate on-line content. Rather than directly censoring the internet, the proposal requires that industry bodies develop codes of conduct which comply with the DoCA censorship guidelines.

The approach this paper will take is to highlight a number of flaws in the DoCA proposals and then to briefly examine an example of the type of restrictive industry self-regulation that results from such proposals.

THE AUSTRALIAN POSITION

The DoCA proposal can be argued to be flawed in a number of ways.

Firstly, it attempts to impose Australian 'community standards' on a global medium. This raises a wide range of problems. Attempting to define a unique Australian community standard in a pluralistic society is likely to be a difficult exercise. Furthermore :

"The internet is a global medium and hence includes participants from a wide range of cultures and beliefs, some more liberal than Australia and some more conservative. Attempting to impose ill-defined Australian community standards on internet users who have become accustomed to its [the internet's] social and political diversity may well provoke a backlash from internet users who have become a part of this wider community." (Gibson (1998))

The second major flaw of the DoCA proposal is that it applies a 'lowest common denominator' standard to internet content. It does this by forcing content providers to comply with the laws of the most restrictive state jurisdiction. Thus, a web page developer must be familiar not only with what is permissible in their state or territory, but also in all other Australian states and territories. Furthermore it means that all Australian internet users, and effectively all internet users browsing Australian sites, are only able to view content deemed appropriate for the most restrictive Australian state or territory.

But the major flaw lies in its failure to appreciate that much content on the internet is provided by ordinary citizens. The DoCA proposal argues for internet content to be rated using guidelines such as that provided by the Office of Film and Literature (OFLC) guidelines. (e.g. G, PG, M, MA, R, NVE), with penalties to apply to those who incorrectly self rate their content.

Whilst the on-line versions of conventional media organisations may have staff familiar with these guidelines, it is unlikely that ordinary internet users will be familiar with the vagaries and nuances of the OFLC guidelines. This is especially so with the current inconsistencies in the way in which films, computer games and publications are rated and the capacity for internet content to fall into more than one of the above categories.

Some individuals and organisations may find that the penalties for incorrectly rating material will be such that they will choose to no longer provide content. In other cases it may lead to Australian content going 'offshore'. There already exist many organisations, principally based in the US, which provide web space, e-mail addresses and newsgroup posting services either for free or as commercial services. Those wishing to express controversial opinion may feel that publishing such material in the United States may offer them some protection.

Thus one may argue that the DoCA proposals, like all censorship proposals, is likely to have a detrimental effect on the free speech of Australian internet users. And given that Australia does not have the same constitutional protection of free speech which those in the US have to fall back in, the impact on free expression in Australia could be even more dramatic.

INDUSTRY SELF-REGULATION = INDIRECT CENSORSHIP

As previously mentioned, the DoCA proposal does not propose direct censorship of the internet. Rather it requires industry groups to produce, and then comply with, industry codes of practice that meet the DoCA requirements. By this sleight of hand the government is able to claim that it has not imposed censorship, rather that industry is self-regulated.

An example of the type of 'self-censorship' produced by the DoCA guidelines can be seen in the current version of the industry code put forward by the Internet Industry Association (IIA (1998)). Section ten of this code deals specifically with issues of content provision and proposes several restriction on internet content providers.

The code prohibits illegal material being placed on the internet, however it is worded such that what is considered illegal is dependant on the state or territory where the server is physically located. This may result not only in content moving offshore to countries with less restrictive content controls but may also produce inter-state transfers of web hosting services to the most permissive state jurisdiction.

But what surely rates as a cause for serious concern is the provision which prohibits content providers from placing "invitations or directions (including hyperlinks) to Illegal Content." (IIA (1998)). To consider a practical example of this, it would not only be illegal to place a copy of "The Art of Shoplifting" on the internet, but also illegal to mention that it is available on the Australian Legal Information Institute web site and provide a hypertext link to the article. This stifles free speech by not only prohibiting publication in Australia of controversial content, but also prohibits one from linking to foreign sites where such material may be legal.

CONCLUDING REMARKS

As was stated in the introduction to this paper, one does not need to talk about policies for reform if one does not allow freedom to be surrendered in the first place. The internet offers an incredible opportunity for all members of society to exercise their free expression and this freedom should not be surrendered, least of all without a serious debate.

Both abroad and within Australia moves are underway to censor the internet. Within Australia, the DoCA proposals and the codes of conduct which have flowed from them, represent an attack on the freedom of expression and freedom of access to information enjoyed by Australian internet users. This paper has, albeit briefly, attempted to provide a background to the current state of the censorship debate and flaws in the current proposals. It is the hope of the author that this paper will stimulate debate and raise the profile of the anti-censorship case so that future internet users will continue to enjoy the same freedom and liberty as previous internet users.

ACLU v Reno (US District Court Eastern District No. 96-963, 11 June 1996) Available :

http://www.eff.org/pub/Censorship/Internet_censorship_bills/HTML/960612_aclu_v_reno_decision.html

Attorney-General’s Office 1997, Tough Laws for Offensive Internet Material [On-line],

Commonwealth Attorney General’s Office. Available:

http://www.law.gov.au/aghome/agnews/1997news/376.htm

Child Online Protection Act (1998) Available: http://www.epic.org/free_speech/censorship/copa.html

Gibson, H. (1998) Cacophony and Chaos [On-line], Centre For Independent Studies. Available: http://www.cis.org.au/Policy/spring98/spr9809.htm

Internet Industry Association (1998) Internet Industry Code of Practice Version 4 [On-line], Internet Industry Association. Available: http://www.iia.net.au/Code4.html

Reno v ACLU (US Supreme Court No. 96–511, 26 June 1997) Available:

http://www2.epic.org/cda/cda_decision.html