Internet filtering is supposed to just be a trial in Australia, but the government has already clamped down on Whirlpool for posting a link to a banned website.
The trial of wide-scale Internet filtering is supposed to be ongoing, but the Australian Communications and Media Authority (ACMA) is already wielding a nasty weapon it can use to block any site it likes without further discussion. Just what is a link deletion notice and why does it represent a major threat to online freedom in Australia?
Broadband information and discussion site Whirlpool is no stranger to legal action, having successfully fought off an attempt by accounting software developer 2Clix to have content which criticised 2Clix products deleted from its forum. Yet last week Whirlpool did remove a link from a post on its site, after its hosting provider Bulletproof was issued with a "link deletion notice" from ACMA.
The post reproduced an earlier complaint which had been submitted to ACMA by a user to test how its current policy of blocking "prohibited content" was applied. The link in question. which was part of the submission, contained anti-abortion information judged by ACMA to be likely to be illegal.
Subject: Complaint Reference: 2009000009/ ACMA-691604278
Date: Wed, 21 Jan 2009 15:45:00 +1100
From: online@acma.gov.au
Complaint Reference: 2009000009/ ACMA-691604278
I refer to the complaint that you lodged with
the Australian Communications and Media Authority (ACMA) on 5th January
2009 about certain content made available at:
http://www. URL REMOVED .htm
Following investigation of your complaint, ACMA
is satisfied that the internet content is hosted outside Australia, and
that the content is prohibited or potential prohibited content.
The Internet Industry Association (IIA) has a code of practice
for Internet Service Providers (ISPs) which, among other things, set
out arrangements for dealing with such content. In accordance with the
code, ACMA has notified the above content to the makers of IIA approved
filters, for their attention and appropriate action. The code requires
ISPs to make available to customers an IIA approved filter.
Information about ACMA’s role in regulating
online content (including internet and mobile content), including what
is prohibited or potentially prohibited content is available at ACMA’s
website at www.acma.gov.au/hotline
Thank you for bringing this matter to ACMA’s attention.
"As we have a policy of never editing people's content, the entire post had to be removed," Whirlpool founder Simon Wright explained on the site. ACMA had complained to Whirlpool's hosting company, Bulletproof Networks, rather than Whirlpool itself because its jurisdiction extends to "hosting services" rather than site creators.
One reason the decision has caused controversy is that ACMA appears to have a confused policy over whether such links can ever be made public. It has earlier issued public assurances that people are free to publish the results of their complaints to ACMA, but its successful attempt to remove the link from Whirlpool contradicts that statement.
Wright was quick to pick up on the contradiction. "I don't get it either, but that doesn't stop ACMA from declaring whatever they like, or links to whatever they like as inappropriate. Today it's abortion sites. Tomorrow it's drug sites? Propaganda sites? Wikipedia?" (That last example isn't unlikely, as Wikipedia was effectively blocked in the UK because of objections to a single image in a single article earlier this year before the decision was reversed.)
Link deletion notices explained
The "link deletion" process was introduced in 2007 as part of Schedule 7 of the Communications Legislation Amendment (Content Services) Act 2007, and thus represents one of the last actions of the former Federal Liberal administration.
However, Labor has been quick to latch onto it as part of its controversial censorship plans. Even by legislative standards, the phrasing is particularly arcane, with repeated cross-references to type A and B remedial situations. However, the actual mechanics are relatively straightforward.
So how can a link deletion notice be issued? For a regular site, content would need to have been judged likely to have been classified as RC or X18+ and added to ACMA's blacklist of prohibited content. Technically, this is known as "potential prohibited content". Anyone can suggest sites or pages that might fall into this category to ACMA, which can add them to its blacklist — though it has no effective way of having content hosted overseas removed.
However, sites which are hosted in Australia but which link to blacklisted sites can result in the hosting company being issued with a "link deletion notice". Faced with that option, hosting companies only have two effective choices: volunteering to remove the link, or seeking to have the content in question formally classified to determine if it would be legal. Few site owners are likely to pursue the second option, especially for what is only a single link to an external site.
One obvious tricky aspect of this scenario is that the actual contents of the blacklist aren't made public, so someone could unwittingly post a link onto an Australian-hosted site from overseas, making the site a potential candidate for a link deletion notice. Reporting on the issues involved is also tricky, since any content on the blacklist can't be linked to in a news story without risking further invocation of the code.