iiNet case dealt filter a body blow

iiNet case dealt filter a body blow

Summary: While a court absolves iiNet from responsibility for what users do with its internet services, Senator Stephen Conroy is exploring yet another way to control what Australians do on the internet. But with the forces of net neutrality seemingly gaining strength, is Conroy's case for filtering losing steam?


It's more than a little ironic that, in the same week that a court absolved iiNet from responsibility for what users do with its internet services, Communications Minister Stephen Conroy should be hitting the lobbying trail to pursue yet another way to control what Australians do with their internet services.

But there he was, telling a Senate Estimates committee that he has been in discussions with Google to voluntarily censor YouTube so as to block potentially offensive content. Citing performance concerns that would stop his own pet internet filter from being used for such a purpose, Conroy is apparently hell bent on pressuring even video delivery sites to self-regulate in order to sanitise the Australian internet.

It's a curious development, particularly since iiNet's victory in the AFACT case would seem to indicate the legislative environment is leaning towards US-style net neutrality. This hands-off principle basically says that internet service providers (ISPs) shouldn't discriminate in the services they deliver to users: VoIP, for example, cannot be blocked by a carrier that is concerned it will eat into their voice revenues, and carriers should not speed-limit or block BitTorrent or any other internet service just because it uses a lot of bandwidth.

Net neutrality is the ultimate pro-competition weapon, since it prevents carrier-cum-ISPs from constructing technological hurdles that favour their other telecommunications services. It's also an important philosophy in setting the rights and responsibilities of ISPs — and, by extension, structuring the legislative framework that controls the behaviour of ISPs.

With little incentive for change, Conroy's call for an industry code of conduct is likely to be met with a big fat 'meh'.

ISPs are already revelling in their new-found freedom: Optus, for one, has stated it has no intention of interfering in its customers' services just to suit one particular special-interest group. Exetel has watered down its anti-piracy procedures, and every other ISP in the country will have used the iiNet case as a benchmark by which to decide their own practice. It's not much of a stretch to assume many will follow Optus' lead. With little incentive for change, Conroy's call for an industry code of conduct is likely to be met with a big fat "meh".

Does the decision automatically mean that forcing ISPs to interfere with measures such as Conory's filter, is now illegal? Not necessarily, since the minister has wide discretion in enforcing policies. But one can be sure he has sat down with a hot cuppa and read the judge's decision word by word — especially the parts where the justice repeats the fundamental principle that ISPs provide a carriage service and nothing else.

Whether or not ISPs will use that decision to challenge the legality of the internet filter remains to be seen. The case could be made that the decidedly pro net-neutrality decision lays the framework for such a legal challenge, since Conroy's filter project — apart from being culturally and politically objectionable — is decidedly anti-neutrality.

In the short term, however, Conroy is coming off as weak — and a bit of a liar, truth be told. Remember when he was quick to seize on the results of the Enex TestLab report last December and proclaim that his filtering proposal won't slow down internet access? And remember how he used that as justification to open the throttle on his push for this particular legislation?

Well, he's now apparently citing performance concerns as a reason he is hoping Google will self-censor YouTube rather than expanding the filtering blacklist to block specific Google content. Doing that would, apparently, slow down internet access, which Conroy promised his filter would never do. Which is why he's hoping to get other organisations to do his dirty work for him — even if it means trying to censor a video sharing site that's added 40 hours of footage since you started reading this.

Yes, apparently Conroy's filter actually encompasses the entire web; talk about scope creep. But Google appears to be having nothing of it: as an organisation, the company "has a bias in favour of freedom of expression in everything we do", a Google Australia spokesperson told me, and already has its own community-enforced processes for trapping and reviewing the kind of content Conroy is trying to block. "Originally, [Conroy] said that he had 100 per cent confidence that filtering would not affect performance," the spokesperson added.

With a seemingly shaky legal platform underneath him, Conroy would appear to be in a poor position to be doing anything more than asking politely.

Given that Google is currently engaged in a high-stakes game of chicken with no less than the Chinese Government over censorship, Conroy is delusional if he thinks Google will do little more than listen to his entreaties, nod politely, and direct him to the pinball machines in its break room. And, with a seemingly shaky legal platform underneath him after the iiNet decision, Conroy would appear to be in a poor position to be doing anything more than asking politely.

Consensus says the iiNet case is far from over, with likely appeals set to chew up court resources for some time still. But the court has dealt Conroy's filtering plan a body blow, if only because it contributes legal weight to the tide of dissent against which he has been swimming. Whether this means his plan ends up all washed up, only time will tell.

What do you think? Will the carriage-without-responsibility iiNet verdict threaten Conroy's filtering plans? Should ISPs plan an anti-filtering test case citing iiNet as precedent?

Topics: Censorship, Government AU, Telcos


Australia’s first-world economy relies on first-rate IT and telecommunications innovation. David Braue, an award-winning IT journalist and former Macworld editor, covers its challenges, successes and lessons learned as it uses ICT to assert its leadership in the developing Asia-Pacific region – and strengthen its reputation on the world stage.

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  • Right-wing Christian Lobby

    It's only the right wing Australian Christian lobby who are trying to enforce this internet filter, rational clear thinking people are against it. It's sad to see that these superstitious god botherers have gotten so much sway in Australian politics. As sensible people we have to fight back against this dangerously ignorant minority who, as usual, think they know best for everyone.
  • performance

    As commented a few times, the Enex results were pointless. Filtering a handfull of known sites is next to useless. In order to filter effectively you have to employ fuzzy techniques that assess all content. This comes at performance cost orders of magnitude greater than simple URL blacklising and also at a high risk of filtering out valid content - e.g. medical sites with lots of images involving bare skin filtered out as pornography.
  • Et tu, Fielding?

    The religious right only have that sort of sway due to Labor needing one of them - Steve Fielding - to have any chance of getting legislation through the Senate. If you want to put the brakes on this lunacy, I'd suggest donating a few dollars to any Victorian Senate campaign that pledges to preference Family First last.
  • Agree

    Agree, but I smell a conspiracy because it is this same group that wants internet censorship which harbours pedaphiles.
  • why

    Was there ever an explanation as to what was wrong with the previous government's filtering scheme? Allowing people to choose to filter or not (particularly on a user by user basis) without impacting on anyone else seems a much better solution to me.

    Maybe it wasnt marketed as well as it could have been, particularly to the luddite mums and dads but that could have been fixed by giving ISPs and the likes of Harvey Normans incentives to pre-install on systems and/or offer support.

    Also, the previous scheme promoted competition between vendors which is good for improving the products.
  • Not just them

    The ACL are merely one supporting group which wants this censorship policy. It comes straight from the top of the government, which means that Rudd desperately wants this policy. Don't make the assumption that the government is pushing for this solely for the ACL.
  • Re:Why

    The only explanation was that there was minimal take-up of the previous government filter. How this was interpreted as a requirement for filtering at ISP level is a mystery. Also by stopping the Howard governments filter program 2 years ago, Senator Conroy has left more children exposed to the things he is supposedly trying to protect them from for the last 2 years.
  • The Minister doesn't know how big the internet is

    The filter is supposed to filter all RC (refused classification) content, and Stephen Conroy thinks there will only be a few thousand pages filtered. What has he been smoking? there are countless millions of pages that would be RC, and there have been since I was in primary school. The filter is a complete waste of taxpayers' money.
  • Re: Re:Why

    It wasn't interpreted as a requirement for filtering. Conroy is just an arrogant politician who thinks he knows what is best for everyone. Well, I hope that at the next election his electorate show him what they think of him and his filtering policy because I know that I will not be voting for the Rudd government anymore. I really thought they would make a difference but it is evident in the short time they have been in power, that they do not go along with what the people of this country would like, rather they go on their arrogant ways destroying this great country and the making a mockery of Australia's reputation by being compared to the likes of China. Good onya Conroy & Rudd. No wonder Abbott's popularity is rising.
  • youtube

    google already moderates youtube, there is no porn of any kind allowed. So Conroy wanting to further filter content exposes his desire to extend the scope of material to be blocked under censorship.
  • RC is a joke

    Its clear this is not to protect the children.

    The whole RC category should not exist.

    There needs to be a huge overhaul. RC removed, only have, classified content and illegal content.

    What ever rules google are using to censor youtube is exactly what people want. It is more than acceptable. But no, our government doesnt think so, this is going to affect all australians.

    Just think, right now, there is a video on youtube that is going to be filtered, and IT WILL BE a video that you won't find offensive and more than likely will be confused to why it will be filtered.

    Pro-filter people have no idea what "RC" is going to do to the internet.

    This policy must be stopped.
  • Internet Filter

    We need the filter! "Ordinary" Australians like myself are too stupid to realize what's acceptable or not. Fortunately we have Conroy, another one in the conga line of trade union hacks from the TWU parachuted into the senate, with his superior intellect and judgment, to protect us from ourselves.
  • RE:Why

    For anyone who hasn't followed the issue from Day 1, it all started 22 March 2006 with the Labor Party in opposition. Then leader Kim Beazley announces it here:

    Labor's position was based on a 2003 'research report' from Clive Hamilton of 'The Australia Institute' here:

    Note that both sources clearly suggest an *Optional* filter, definitely not mandatory. Prof Clive Hamilton has also, since that report, spoken out *Against* Conroy's mandatory proposal.
  • Thin edge of the wedge

    It's not about left or right - that's just a diversion. It's about democratic rights being chipped away in many western democracies. Look at how many rights the Americans lost with the Patriot Act. We live in 'interesting' times, and unless people become informed and defend their rights, they will lose them. Conroy's filter and South Australia's recent attempt to make people post their full names and post codes if making comments on political matters at election time are just the thin edge of the wedge.
  • ISPs provide a carriage service and nothing else....

    Requiring ISP's to stop people from using their services to access illegal content (or worse legal content that the Minister would rather they didn't access), is akin to requiring telcos to stop people from using their services to ring people who say things the Minister doesn't want them to hear.

    This is a ridiculous notion. It's time for the Government to get off the ISP's back and go after those who produce and distribute illegal content.

    I would be happy to see my ISP actively fight this ill conceived policy through the courts even if they had to increase charges to fund the action.

    It's time to bring the fight to the Government.
  • Google cannot be forced.

    Hopefully Google will not cave into the demands of Conroy like they did in china.

    China could easily stop ALL of google's operations (in China) if they do not operate by their rules. Currently that cannot and would not happen here.

    And thus they cannot really be forced in this situation.
  • Dangerous Ultra Right Religous Politics

    Hey you in the big house
    Ha ha charade you are
    You paid off church mouse
    Ha ha charade you are
    Your're trying to keep the truth off the net
    Pollie you're nearly a treat
    all tight lips and cold feet
    And do feel the power
    ......! .......! .......! .......!
    You gotta stem the evil tide
    and keep the net on your side....
  • re: youtube

    Good point. It makes you wonder what else Conroy thinks should be filtered out. Liberal campaign videos perhaps?
  • Alternative ISPs

    What they should do rather than censoring the internet as a whole, is have the people who are so interested in having a censored feed set up their own ISP. This ISP would provide a censored internet to the pundits who desperately want one and of course the number of customers they have would show just how much this service was in demand. Perhaps executives of media companies and religious ministers would flock to the service.
  • Just remember..

    Just remember that the roots of the Labour party are in socialism/ communism. Many early Labour politicians where also communist/socialists.

    Just remember how the Russian and still the Chinese, Cuban and North Korean communist/Socialists need to have absolute media control so as to keep their populations in check.

    Just Remember that Mr Rudd is a close friend of China.

    I am a staunch Labourite but I am a Socialist not a Communist, and believe that decisions should be made for the good of the whole and not , like the Communists only trying to cement power through fear and intimidation.

    A perfect example is the pudding-headed Attorney General of SA, trying to intimidate anyone with anti-government views from speaking out. in the press. " A news filter" perhaps. Just shows how some Labour pollies are trying to censor your free-thought and speech.. Note the Libereals where only too willing to approve this legislation and any calls of "we were misled" is a crock.

    I would never vote Liberal, but any other party with a social bent who are anti-filter, you've got my vote.