civil liberties: September 2007 Archives

News.com.au reports that Burma's "State Peace and Development Council" (i.e. the socialist military junta which rules the country) appears to have shut down all public access to the Internet in the country.  Presumably this will let them put down their current pro-democracy protests without pesky stories and images of them shooting Buddhist monks being leaked to the overseas media.

The Internet, and blogs in particular, have been used to expose the current atrocities in Burma to the rest of the world.

Not that Internet access in Burma is that great the rest of the time -- they are apparently subject to mandatory ISP-based software filtering.  Sound familiar?  Truly this is a country that Australia should be emulating.

At 2:15pm in Canberra on Tuesday 2 October, Gyles J of the Federal Court of Australia will hand down his judgment in Silberberg v Builders Collective of Australia.

This case is one of four currently before the courts in Australia, in which the operators of an Internet forum have been sued because of what third parties have said or done in the forum.  The others are:

• A case before the NSW Land and Environment Court, in which a NSW local government authority sought to prosecute the owner, host, and moderator of an Internet forum because third parties were allegedly leaking confidential council information and documents on the forum.  The prosecution was under s 664 of the Local Government Act 1993 (NSW) and alleged that these persons had unlawfully 'disclosed' information 'obtained in connection with the administration or execution of this Act'.

• A case before the NSW Supreme Court, in which an religious school sued the moderator of a NineMSN-hosted forum over comments on the forum.  Although the school was incorporated as a company, it is not for profit, therefore can still sue for defamation.

• The Whirlpool case, which I've discussed earlier.

Silberberg involves allegations of unlawful racial discrimination under s 18C of the Racial Discrimination Act 1975 (Cth).  The material in question (which is alleged to convey anti-semitic imputations) was posted in the forums of the Builders Collective by a third party, who is the second respondent in the action.

Silberberg will be a significant judgment for a number of reasons.  It will be especially significant to me because I appeared in the Federal Court on behalf of the Builders Collective and argued their defence.  Fortunately for the collective (who could not afford legal representation), an obscure provision of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) gives a right of appearance in this type of case to people who aren't legal practitioners.

I won't comment on the merits of the case -- at least not until after the judgment is given.  But on a personal note, I'll observe that appearing in court and arguing the Collective's case against senior counsel who appeared for the applicant was equal parts terrifying and exhilarating.

Fingers crossed for Tuesday.

News.com.au carries the story that Centrelink, in the last financial year, had:

• 367 proven breaches of privacy regulations by it's staff;
• A further 239 breaches of the Australian Public Service code of conduct (eg staff accessing records of relatives with permission but in contravention of the code of conduct);
• 296 employees were given a written warning;
• 44 were fined or had their salary reduced;
• 13 were reprimanded (is there a substantive difference between a reprimand and a written warning?);
• 24 people resigned; and
• 2 people were sacked.

The most amazing part of the above is what's not in the article - prosecutions.  Presumably because there weren't any.  This from the agency that tells us to "trust them" with the Access Card database.  Who say that their staff won't snoop through people's records because it will be a criminal offence to do so.

Despite the fact that, unlike the offences which are likely to apply to everyday people, the snooping-by-government-staff offences:

• Carry a maximum penalty of 2 years jail, as opposed to 10 years for the ordinary-people type offences;
• Do not have offences of strict liability, as opposed to many of the ordinary-people type offences; and
• Are highly unlikely to ever be used, because as the above figures indicate, Centrelink will warn their employees, or reprimand them, or fine them, or allow them to resign, or very occasionally fine them, but never prosecute them.

Trust them with the Access Card database?  Sure -- about as far as I could spit them.

Yesterday morning, on what will (probably) be the last sitting day before the federal election, Coonan, out of the blue, introduced the Communications Legislation Amendment (Crime or Terrorism Related Internet Content) Bill 2007 into the Senate.

The Bill, as it currently stands, will give the commissioner of the keystone cops Australian Federal Police, or senior members of the AFP (to whom the commissioner's powers can be delegated) the power to ban Australians from accessing Internet content, whether it is in Australia or overseas.

The commissioner (or delegate), if they have "reason to believe" that Internet content is "crime or terrorism related content", may give a notice to that effect to the ACMA, who are required to notify all ISPs under the registered code for general-purpose Internet censorship, or otherwise give all ISPs a standard access-prevention notice which requires them to "take all reasonable steps to prevent end-users from accessing the content" - i.e. block it.

The short version is that the Federal police will be able to ban access to Internet material by decree, based merely on what they "believe" about the material.

The important part of the definition of "crime or terrorism related content" is that:

• the Internet content (when considered in isolation or in conjunction with any other Internet content that is accessed, or available for access, from that Internet site or that part of the Internet site) encourages, incites or induces the commission of a Commonwealth offence; or
  
• the purpose, or one of the purposes, of the Internet content (when considered in isolation or in conjunction with any other Internet content that is accessed, or available for access, from that Internet site or that part of the Internet site) is to facilitate the commission of a Commonwealth offence; or
  
• the Internet content (when considered in isolation or in conjunction with any other Internet content that is accessed, or available for access, from that Internet site or that part of the Internet site) has, or is likely to have, the effect of facilitating the commission of a Commonwealth offence.

Despite the continued references to "terrorism", this Bill has nothing to do with terrorism.  Its provisions apply to any offence against a law of the Commonwealth - even something relatively insignificant such as copyright infringement.  The government are simply playing the terrorism card to deter criticism of the Bill.

This is the type of legislation that you would expect to see in a police state.  The Bill contains no mechanisms for review or appeal of a decision to give one of these notices.  It puts the police in the position of judge, jury, and executioner of Internet content, and it will almost certainly be used as a tool of political censorship.

EFA have issued a media release about the Bill.  The Bill is typical of the contempt with which the coalition treats the Internet and the civil liberties of all Australians.  Remember this on election day.

Although the paperwork has yet to be filed, 2Clix has told various media outlets that they are abandoning their injurious falsehood lawsuit against the owner of Whirlpool.  2Clix's solicitors have told Whirlpool they have been instructed to discontinue the action.  EFA press release here.

Some of the media coverage of this latest development has been less than accurate and less than fair to Whirlpool.  2Clix, in apparent fit of pique, leaked news of their intent to discontinue the action to several media outlets, before they even confirmed it to Whirlpool.

Initial coverage by one media outlet in particular said that the action had been discontinued (which it had not, and still has not), and implied that Whirlpool was acting dishonestly by not announcing this development (despite the fact 2Clix and their solicitors had ignored Whirlpool's attempts to confirm it) while they allegedly continued to accept donations from the public (despite the fact that Whirlpool had never solicited donations, had actively discouraged people from donating until they knew what their legal bills were likely to be, and most importantly, they removed the donation links off their website when they got an unconfirmed email indicating that 2Clix might discontinue).

Whirlpool published a response to this media speculation.

I don't know what 2Clix's motivation was for this course of action, but it seems consistent with a puerile attempt to smear Whirlpool in the press, which was at least partially successful.

Whirlpool.net.au, one of Australia's largest online discussion forums, has been sued by a software publisher whose products and services received negative commentary on the site.  Becuase the publisher is a corporation, and can no longer sue in defamation, they've dusted off the less-known tort of "Injurious Falsehood".  This has already attracted media attention at The Age, news.com.au, itnews.com.au, itwire.com, The Register, Australian PC World, and of course Slashdot.

EFA issued the following press release tonight:

EFA condemns Whirlpool lawsuit

Electronic Frontiers Australia (EFA) today condemned a lawsuit filed against the operator of whirlpool.net.au, one of Australia's largest online discussion forums.

Some messages posted in the Whirlpool forums have criticised the products and services offered by software company 2Clix Australia Pty Ltd (2Clix).  The lawsuit alleges that the operator of Whirlpool has maliciously published those comments, with the intention of damaging 2Clix's business.  2Clix claims that these comments have caused a "severe downturn in monthly sales" of approximately $150,000 per month.

"This action is an attack on freedom of speech and the ability of consumers to engage in legitimate online criticism," said EFA Chairperson Dale Clapperton.  "One of the great benefits of the Internet is that it allows consumers to become better informed, by searching for information about products or services.  If negative comments about poor quality goods or services can't be published for fear of a lawsuit, consumers will be unable to properly inform themselves."

The lawsuit by 2Clix is for the common-law tort of "injurious falsehood", which is distinct from the more common and better-known tort of defamation.  "2Clix have sued for 'injurious falsehood' to sidestep recent national changes to defamation laws, which removed the right of most companies to sue for defamation.  Those changes were designed to ensure that individuals could engage in robust debate and criticism of companies, without the threat of a lawsuit hanging over their head," continued Clapperton.

"This case has echoes of the notorious 'McLibel' action in the United Kingdom, and the lawsuit by David Jones against the Australia Institute over allegations of 'corporate pedophilia'.  Corporations are increasingly using the courts to silence and intimidate people who criticise the corporation."

The Statement of Claim filed by 2Clix includes the allegation that Whirlpool "did not require proper verification of identity" before it allowed people to become registered users.

"Forum operators are not required by law to verify the identity of their users, nor is there any reasonable way for them to do so," Clapperton continued.  "Plaintiffs have, in the past, argued that forum operators were 'reckless' for not verifying the identity of their users.  Forum operators are not the identity police, and the fact that they do not verify users' identity does not make them liable for what their users say or do."

EFA is concerned that an adverse decision in this case could impose significant burdens and legal liability on the operators of Internet forums and discussion sites.  Such a result could cause many such sites to close down.

EFA understands that Whirlpool engages in moderation of obviously inappropriate content, a practice which EFA endorses.  However, forum operators are not equipped, and should not be required, to verify the truth or falsity of criticism posted by third parties.  The ultimate responsibility for content posted by third parties lies with the person who posted it.

APEC has ended, but the fallout has just begun.

Events of note, in no particular order:

• Dozens of riot police removed their name tags, apparently in defiance of police policy, ensuring that they could not be identified by potential complainants or in media coverage.  Not a single name-tag in sight in this photo, only the velcro where they should have been.  Ironic that the police were given expanded powers to demand that members of the public produce identification, when the police go to such lengths to avoid being identified themselves;
• A single-seat Cessna aircraft, piloted by a Sydney lawyer, with a filed flight-plan, was intercepted by two F/A-18 fighters and escorted to a landing at Bankstown airport;
• The NSW Police obtained injunctions against the organisers of a protest march, preventing them from even approaching the fenced-off areas;
• Of course, the infamous crew from "The Chaser" organised a fake motorcade and made an utter mockery of the APEC security arrangements.  They were waved through two police checkpoints, reaching as far as the Intercontinental Hotel (where George W Bush was staying) before being sprung - and only then because one of the crew, dressed as Osama Bin-Laden got out of a vehicle and approached police;
• The police said that the Chaser crew were lucky they were not shot by snipers.  I think that the police are lucky the Chaser crew were not shot by snipers!  I want to know what the snipers' rules of engagement were, if they were permitted to shoot unarmed people on the street!
• The Chaser said that police were lucky that they weren't Al Quaeda, and I whole-heartedly agree.  Those vehicles could quite easily have been loaded with explosives instead of comedians, and the police allowed them to drive right up to the front of the most secured hotel in Sydney!
• Police snipers were on rooftops in the city, pointing firearms at people.  The last time I checked, that was a crime, even for police;
  
• A 52-year old accountant was manhandled to the ground by four police officers and arrested for jaywalking, and allegedly assaulting a police officer, then jailed for 22 hours and not permitted access to a lawyer [video of the arrest];
• Two people on the police blacklist were drinking lattes in Hyde Park, when they were arrested by riot police for being in a declared area.  Except Hyde Park isn't actually a declared area.  Oops;
• A media FOI request revealed that police have been spying on "interest-motivated groups" within universities, and seeking the cooperation of the university administration with such spying.  An email from the police reads "[g]iven that next year holds numerous events including state/federal elections, APEC and the ongoing war in Iraq, there is a strong possibility that IMGs will become more active throughout 2007."  The objective of the police was to "monitor these IMG's and identify the current key members."  I'm sure that had absolutely nothing to do with the police blacklist;
  
• Fifteen protesters driving from Melbourne to Sydney were pulled over by police in rural NSW, searched for drugs with a sniffer dog, had their vehicles searched and given roadworthy inspections, and generally subject to harassment and intimidation;
• Police demanded that German tourists delete digital photographs of the security fence.

About the only good thing that can be said about APEC is that nobody died or, so far as I know, was seriously injured.  Although that doesn't seem to be for lack of trying on the part of the police.  Maybe next time, they'll shoot the Chaser team on sight.