Conroy misleads the Senate on 'illegal material'
Senator Conroy, 'Minister for Broadband, Communications and the Digital Economy' (also known as the 'Minister for Child Pornography') was grilled in a Senate estimates hearing on Monday of last week. The Hansard (official transcript) for the hearing is available here.
Conroy repeatedly defended the government's scheme by reference to the supposed illegality of the material that they propose to blacklist, e.g.:
Illegal material is illegal material. Child pornography is child pornography. I trust you are not suggesting that people should have access to child pornography. [p 76]
We are talking about mandatory blocking, where possible, of illegal material -- illegal material. [p 76]
But in terms of the policy, what we are investigating is whether it is possible to ensure that people can opt out of an ISP filter if they wanted to look at material that is legal as opposed to not allowing an opt out for material that is illegal. [p 77]
we are looking at two tiers - mandatory of illegal material and an option for families to get a clean feed service if they wish. [p 77]
Throughout the hearing, Conroy and a Mr Rizvi (the 'Deputy Secretary, Broadcasting, Regional Strategy, Digital Economy and Corporate') who was testifying with him, treated the existing ACMA 'black list' as synonymous for 'illegal material', e.g.:
The situation in the United Kingdom, for example, is that a range of ISPs have introduced black list filtering--that is, the filtering of their equivalent of the ACMA black list. In respect of that filtering in the United Kingdom, the consumer does not have the option of opting out. They get an ISP feed which has those illegal sites filtered out. [p 77. This comment is also false because in the UK, only one ISP has a 'clean feed' and it blacklists only child pornography']
The problem with Conroy's statements is the ACMA 'black list' is not restricted to material which is 'illegal'.
The ACMA 'black list' is a list of websites or URLs (it's unclear which is the case) which have been identified by the ACMA as 'prohibited content' but which are hosted outside Australia, so the ACMA can't force the material to be removed. Instead, it adds it to the black list which is distributed to manufacturers of various Internet filtering products, so they can block access to those sites.
The ACMA black list is simply a list of material which the ACMA could forcibly remove from the Internet if it were hosted in Australia. Nothing on there is necessarily 'illegal.'
Exactly what does Conroy mean when he talks about 'illegal material'? It could be any number of things, including:
- Material which is illegal to publish on the Internet in the country in which it is hosted;
- Material which would be illegal to publish on the Internet if it were hosted in Australia; or
- Material which is illegal to access or possess in the country in which it is hosted; or
- Material which is illegal to access or possess in Australia.
Some material, such as child pornography (i.e. images depicting the actual sexual abuse of children, and not Bill Henson photographs, or 18 year olds who might look 17) falls into more than one of those categories. But child pornography isn't the only thing which is 'prohibited content'.
'Prohibited content' is defined in cl 20 of Sch 7 to the Broadcasting Services Act 1992 (Cth) and includes:
- Material classified RC, meaning content which:
- describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or
- 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
- promotes, incites or instructs in matters of crime or violence.
- Material classified X18+, which is generally depictions of actual sexual activity (i.e. 'hard core' pornography);
- Material classified R18+ unless it is protected by a government-approved age verification system. Much R18+ material is so classified because of so-called 'adult themes', including 'verbal references to and depictions associated with issues such as suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues'; and
- In some cases, material classified MA15+ (see cl 20(1)(c) and 20(1)(d)).
Most of this material is completely legal to possess in Australia. I can quite legally buy R-rated films at any video store. I can mail-order, if I am so inclined, X-rated pornography from the Australian Capital Territory, even though it's illegal to sell it in Queensland. So far as I know, it's illegal to sell or distribute RC material in Australia, although it's not illegal to possess it or access it on the Internet.
It's also worth remembering that Australia doesn't have an R classification for computer games, meaning that any computer game not suitable for a 15-year old to play (i.e. MA15+) is automatically classified RC and therefore banned in Australia. Those games would go on the black-list. There's a long list of games which have been banned in Australia, including several of the Grand Theft Auto games, Manhunt 2, Postal 2, 50 Cent: Bulletproof, etc.
For example, if I, from my computer in Queensland, use the Internet to access X-rated pornography which is hosted in the United States, I'm not breaking any laws, the publisher isn't breaking any laws (thanks to the First Amendment), the material isn't 'illegal' in any way, but it's 'prohibited content' simply because the Commonwealth government made a policy decision that all X-rated material on the Internet will be black-listed. This is pretty absurd when you consider that Australians can perfectly legally mail-order the same material from Canberra!
This is merely one example. My point is that the government is not only black-listing 'illegal' material and to say otherwise is a gross misrepresentation.
Conroy arguably misled the Senate with his numerous statements equating the ACMA 'black list' and Labor's filtering plans with 'illegal' content. This is on top of his misleading comparisons to other countries, which Mark Newton debunks in a Whirlpool posting located here.
[In writing this posting I used information and resources published by Irene Graham at libertus.net and her assistance is gratefully acknowledged]
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