Recently in EFA Category
It's been a busy week.
The media have gone into a feeding frenzy over Labor's election commitment to 'save the children' by forcing ISP-based Internet filtering upon everybody in the country, unless they specifically opt out of it. Nothing in particular seems to have precipitated this feeding frenzy. I have it on good faith from Senator Conroy's office that there have been no new announcements (apart from some new comments to the media equating freedom of speech with watching child pornography), and nothing has changed since they announced this before the election. It looks like one journo decided to write a follow-up article, which started a chain-reaction of scathing scorn and condemnation.
I find it somewhat amusing how media outlets feed of each other in this way. For instance, I can pretty much guarantee that if I'm quoted in the Sydney Morning Herald about anything remotely topical and newsworthy, I'll be getting phone calls from ABC radio stations throughout the country wanting to do interviews. It's somewhat ironic that an EFA media release doesn't have the impact that one story on smh.com.au does.
Anyhow, the media are really laying the boot into Labor's plans. They weren't this critical back in 1999 when the Coalition were proposing more or less the same thing. Perhaps with FOI becoming a waste of time and money, civil liberties increasingly going down the tubes, and the growth of a culture of secrecy at the Commonwealth level, the media outlets are taking the adverse potential of this scheme seriously.
A random assortment of media coverage:
The media have gone into a feeding frenzy over Labor's election commitment to 'save the children' by forcing ISP-based Internet filtering upon everybody in the country, unless they specifically opt out of it. Nothing in particular seems to have precipitated this feeding frenzy. I have it on good faith from Senator Conroy's office that there have been no new announcements (apart from some new comments to the media equating freedom of speech with watching child pornography), and nothing has changed since they announced this before the election. It looks like one journo decided to write a follow-up article, which started a chain-reaction of scathing scorn and condemnation.
I find it somewhat amusing how media outlets feed of each other in this way. For instance, I can pretty much guarantee that if I'm quoted in the Sydney Morning Herald about anything remotely topical and newsworthy, I'll be getting phone calls from ABC radio stations throughout the country wanting to do interviews. It's somewhat ironic that an EFA media release doesn't have the impact that one story on smh.com.au does.
Anyhow, the media are really laying the boot into Labor's plans. They weren't this critical back in 1999 when the Coalition were proposing more or less the same thing. Perhaps with FOI becoming a waste of time and money, civil liberties increasingly going down the tubes, and the growth of a culture of secrecy at the Commonwealth level, the media outlets are taking the adverse potential of this scheme seriously.
A random assortment of media coverage:
ITWire, New Australian Government tries totalitarian Net censorshipEFA's press release is here and an earlier analysis of their policy is here.
The Australian, Net-nanny state worth watching
AFP, Australia's plans to filter Internet under fire
Australian IT, Labor online strategy slammed
Al Jazeera (yes, seriously), Rudd's 'clean web' plan criticised
The Courier Mail, Censorship must be left to parents
ITWire, One small but significant step towards Internet censorship
Scopical, Plan to filter Australian internet a 'dud' says EFA
IT News, EFA attacks Labor's 'clean-feed' Internet proposal
Regular readers will remember some earlier dramas when accounting software vendor 2Clix Australia Pty Ltd sued whirlpool.net.au owner Simon Wright for injurious falsehood, and then shortly thereafter announced they would abandon the lawsuit.
Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.
You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit. At the time, I said:
Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.
You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit. At the time, I said:
"Lawsuits are a short-sighted and self-destructive way of dealing with criticism," said EFA Chairperson Dale Clapperton. "As McDonalds and many other companies have learned, suing your critics will cause much more damage and bad publicity than the criticism itself ever would."Here we have the result. An own goal indeed.
EFA has published the submission that we made to the Commonwealth Attorney-General's Department's RFC on a draft of the Copyright Infringement Notice Scheme Guidelines. Kim Weatherall made an excellent submission, which covers the big picture issues very well - so EFA kept ours mainly on the EFA-type issues.
As I blogged about earlier, the judgment in Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 was handed down this afternoon. It is significant for many reasons, including that it is the first precedent in Australia (or elsewhere, so far as I know) dealing with racial vilification/discrimination in forum postings, and because it's the first 'proper' case I've argued in court (not counting two trips to the small claims tribunal against landlords (both won), a minor debt claim against a former employer (won), and a speeding ticket that I once tried to beat (lost)...).
The Collective won, but not for the reasons I was hoping. The Collective's case was that it had no knowledge of the offensive material until a letter from Silberberg's solicitors arrived. Gyles J held that an unidentified administrator of the forum did have knowledge of one of the two offensive postings, from a time roughly six months after it was made. As noted by Gyles J at [34], if the proceedings had been brought in defamation or copyright infringement, that would likely be sufficient to establish liability.
However, under s 18C of the Racial Discrimination Act 1975 (Cth), an act is only unlawful if done because of the race, colour or national or ethnic origin of the person or group concerned. On this point, Gyles J said at [35]:
Gyles J made some comments in the judgment which are somewhat worrying, such as:
The end result is that the Collective won, with Silberberg to pay their expenses. But the result could have been very different. Silberberg lost against the collective because he sued for racial discrimination, and he couldn't prove that anything the Collective did (or failed to do) was motivated by his Jewish background.
Had Silberberg sued for defamation, he probably would have won -- Gyles J held that the Collective published the offensive messages, and that their anonymous admin had actual knowledge of one of the offensive messages, which would have negated a defence of innocent dissemination.
Where to from here? Silberberg could appeal. Or he could sue for something different. I'm reliably informed that Silberberg is saying he will now sue the Collective for defamation, based on the same events in this case. I don't like his chances.
EFA has issued a press release which will be available here later tonight.
The Collective won, but not for the reasons I was hoping. The Collective's case was that it had no knowledge of the offensive material until a letter from Silberberg's solicitors arrived. Gyles J held that an unidentified administrator of the forum did have knowledge of one of the two offensive postings, from a time roughly six months after it was made. As noted by Gyles J at [34], if the proceedings had been brought in defamation or copyright infringement, that would likely be sufficient to establish liability.
However, under s 18C of the Racial Discrimination Act 1975 (Cth), an act is only unlawful if done because of the race, colour or national or ethnic origin of the person or group concerned. On this point, Gyles J said at [35]:
However, there is substance to the argument that the failure to remove the offensive material has not been shown to have any relevant connection with race or ethnic origin of the applicant or indeed any other Jewish person as required by s 18C(1)(b) of the Act. The failure of the unidentified administrator to remove the Second Message on and after 1 July 2006 was the clearest case of failure to act. I cannot conclude that such failure was attributable, even in part, to the race or ethnic origin of the applicant. If Dwyer [the president of the Collective] is accepted, the message should have been removed if its offensive nature was understood. However, failure to do so is just as easily explained by inattention or lack of diligence. Drawing the necessary causal connection would be speculation rather than legitimate inference. The same reasoning would be more obviously applicable to the systematic failure to monitor and remove offensive postings. Absent the necessary causal connection there is no breach of Pt IIA [of the Racial Discrimination Act] by the Collective.Seems to be a judicial application of Hanlon's razor - 'Never attribute to malice that which can be adequately explained by stupidity.'
Gyles J made some comments in the judgment which are somewhat worrying, such as:
I'll muse on those quotes sometime in the future.
- 'the conduct of the Forum in permitting the posting of anonymous messages that are automatically available for display without prior checking is entirely the choice of the Collective' (at [11]); and
- 'The Collective chose to conduct an open anonymous forum available to the world without any system for scrutinising what was posted. The party controlling a website of such a nature is in no different position to publishers of other media.' (at [34])
The end result is that the Collective won, with Silberberg to pay their expenses. But the result could have been very different. Silberberg lost against the collective because he sued for racial discrimination, and he couldn't prove that anything the Collective did (or failed to do) was motivated by his Jewish background.
Had Silberberg sued for defamation, he probably would have won -- Gyles J held that the Collective published the offensive messages, and that their anonymous admin had actual knowledge of one of the offensive messages, which would have negated a defence of innocent dissemination.
Where to from here? Silberberg could appeal. Or he could sue for something different. I'm reliably informed that Silberberg is saying he will now sue the Collective for defamation, based on the same events in this case. I don't like his chances.
EFA has issued a press release which will be available here later tonight.
This Friday the 28th of September, the QUT Faculty of Law and the ARC Centre of Excellence for Creative Industries & Innovation will host the Australian Blogging Conference, to be held in the Creative Industries Precinct at QUT's Kelvin Grove campus in scenic Brisbane, Australia.
Wearing my EFA hat, I will be one of the discussion leaders of the "legal issues" breakout session. The recent Whirlpool lawsuit illustrates some of the legal issues involved in blogging or running forum websites; we should have a lot to talk about, and I'd love to see you there.
See Peter Black's blog for more information.
Wearing my EFA hat, I will be one of the discussion leaders of the "legal issues" breakout session. The recent Whirlpool lawsuit illustrates some of the legal issues involved in blogging or running forum websites; we should have a lot to talk about, and I'd love to see you there.
See Peter Black's blog for more information.
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 thekeystone 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:
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.
The Bill, as it currently stands, will give the commissioner of the
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.
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 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.
EFA has tonight issued the following press release, in relation to a story which appeared in today's Australian IT online.
Electronic Frontiers Australia (EFA) today said that the latest in a long series of embarrassing data security breaches proves that the Commonwealth government can not be trusted to maintain the security of the proposed Health Services Access Card database.
"The government has dozens of databases containing sensitive and personal information about millions of every-day Australians," said EFA Chair Dale Clapperton. "Yet the government is unable to prevent its own
employees from illegally snooping through personal records that they have no business accessing."
An article in today's Australian IT online detailed dozens of cases of public servants inappropriately accessing confidential client records have occurred in recent years in government agencies including the Australian Taxation Office, Medicare Australia, the Child Support Agency, and Centrelink.
"If the government cannot maintain the privacy of information in its existing databases, it has no business establishing a new massive database which will contain sensitive information about each and every Australian," Clapperton continued.
"The Access Card database will inevitably be a target for computer hackers or busy-bodies in the public service that have no respect for other people's privacy."
The exposure draft of the Access Card legislation contains criminal offences that would apply to public servants who inappropriately access the Access Card database, but those offences are punishable only by imprisonment for 2 years, and/or a fine of $13,200. By comparison, most of the offences that would apply to ordinary people are punishable by imprisonment for 10 years and/or a fine of $110,000.
"This disparity in levels of punishment is further proof, if any were needed, that the Commonwealth government is not taking the problem of snooping public servants seriously," Clapperton said.
"Furthermore, the vast majority of public servants who are caught abusing their access to these confidential databases never face criminal charges. They are internally disciplined or allowed to resign as a face-saving measure for the government."
"The Howard government needs to take this problem seriously, and throw the book at public servants who abuse their positions of trust in this way."
