Andrej Kovačević

@andre_20037

Anti-Censorship Activists Should be Paying Attention to Australia Right Now

January 22nd 2019
Photo: ronstik / Adobe Stock

There are some places in the world where internet users can rightly expect their activities to be subject to monitoring by private or government entities. In some places, the government exercises the right to order materials it finds objectionable blocked from access by citizens or gives private interests plenty of sway in decisions that force certain content offline. If you ask the average westerner, it’s the kind of behavior they ‘d associate with repressive regimes like those found in China, Iran, or North Korea. Unfortunately, it’s not confined there.

It may come as a shock to some that the behavior described above may be found within western democracies, as well. Examples include countries like Germany demand that internet platforms remove objectionable speech within 24 hours, and the UK, which has been fighting an escalating war against online pornography since 2015. Those examples, while surprising to some, pale in comparison to the western democracy with the strictest internet censorship policies of all: Australia. Here’s what’s happening, and why it should matter to everyone in the western world.

Online Down Under

Photo: alexlmx / Adobe Stock

When most people think of Australia, they likely picture a somewhat progressive place and know it to be a young but stable democracy. It’s also a place with a pretty forward-thinking approach to internet access, with NBN coverage now reaching the majority of the country. When it comes to the internet content, however, they have a long history of embracing or at least attempting censorship. The first visible sign of this came in 2007 when the government announced that all ISPs would have to provide what was termed a ‘clean feed’ to all homes and schools that had been pre-scrubbed of offensive content. Leaving aside the vagaries of such a request, as well as the fact that the government eventually abandoned the plan, it marked the beginnings of an aggressive governmental approach to controlling what Australians could see or do online.

The Slippery Slope

The failed ‘clean feed’ filtering plan was by no means the last attempt made by the Australian government to block materials it deemed harmful. In fact, a 2013 effort by the nation’s corporate regulatory body to block 1,200 websites tied to fraud accidentally resulted in more than 250,000 other sites being blocked from access within the country. Then, in 2015, the government handed local and international copyright holders the ability to force ISPs to block entire websites that they alleged were infringing on their protected works. Privacy and free speech experts described the law as an overreach and blasted it as a vaguely worded statute that would be at best ineffectual, and at worst, abused by rights holders.

A Prophecy Fulfilled

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As it happens, the critics had a point. Fast-forward to 2018, and we now have a ruling under the 2015 statute that allowed rights holders to demand that ISPs block, among legitimately infringing websites, a site that is sure to raise some eyebrows: Opensubtitles.org. At first glance, the blocking of a website that provides crowdsourced subtitles for films may elicit a shrug from many people, but in reality, it sets a dangerous precedent. The ruling, in effect, codifies the view that complimentary works, even when offered for free and for fair use purposes may be construed as piracy and punished.

That’s significant because the current law in Australia only allows for nationwide blocking of websites when ‘the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).’ It seems a stretch to argue that a subtitle file ‘facilitates infringement’ or that there’s no fair use argument that should leave Opensubtitles in the clear, but the ruling stands regardless. If that were the end of the story, it would be disturbing enough, but copyright holders aren’t satisfied. They want more and may get it.

A Power Grab

Right now, the Australian Parliament is debating an amendment to the existing law that would make it even easier for copyright holders to force websites offline. The draft proposal, among other things, would modify the existing language of the law to include websites whose ‘primary effect’ is infringement. That means that sites like YouTube and other large video providers could become vulnerable to spurious copyright claims in Australia.

The proposal would also allow claimants to seek injunctions to prevent search engines from including results that they claim infringe on their rights, with little recourse for website owners, and no clear way for the public to know what’s been removed. That would create a system where abusive practices would become all but invisible to users, who will have no way to know how much of the internet is being shielded from their view.

The Next Step

Photo: Stringer Image / Adobe Stock

Although the changes mentioned above should be enough to worry every Australian internet user, there’s another that should be setting off alarms all over the country and in every other western democracy. Aside from lowering the bar for getting websites blocked, the language would allow court orders that block ‘IP addresses that start to provide access to the online location after the injunction is made’. That means that rights holders could demand further blocking without going back to court and that they could demand that blocking to occur at the IP level rather than by DNS name. That vague language could allow claimants to block things like VPN servers in foreign countries based on the theory that they’re ‘providing access’ to blocked sites, and there would be no oversight by the government or the courts.

The Bottom Line

Right now, there’s no telling if the language in the current proposal will become law. If it does, it points to an internet future in Australia where users not only may be denied legitimate access to legal sites and services anywhere in the world, and where they won’t get so much as a notification that it’s happening. For residents of other western democracies that may be thinking that it isn’t their problem, consider this — the current legal system for internet censorship in Australia mirrors one that was narrowly defeated in the United States and another version that went down to defeat in the EU.

If Australia goes forward with their proposal, expect it to become the model used for new restrictive efforts elsewhere in the world. There’s no guarantee that activists will prevail in a second global fight, so what happens in Australia may be a preview of what’s to come everywhere in the ‘free’ world. If that sounds like a world you won’t want to be a part of, pay attention to Australia and spread the word.

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