ACMA link removal: A free speech analysis

Electronic Frontiers Australia has complied with a notice by the nation's communications regulator to delete a link from its site. But, the organisation writes, the action raises serious freedom of speech and freedom of political communication issues.
Written by Nic Suzor, Contributor

commentary Yesterday Electronic Frontiers Australia's hosting provider received a Final Link Deletion Notice from the Australian Communications and Media Authority (ACMA), requiring us to remove a link to a page that contains images of aborted foetuses from our website.

We believe that Australia's current and proposed censorship regimes result in the illegitimate blocking of political speech.

We have complied with this notice because it exposes our host to fines of up to $11,000 per day that we do not remove the link.

This post examines some of the free speech arguments and technicalities of potential appeals processes. Expect long-winded legal analysis.

ACMA advises that the page we linked to has been classified by the Classification Board as being R18+ content. A summary of the classification decision is available at the OFLC site, classification Number 56671019. The description of the content we received was that it contained "gratuitous, exploitative and offensive depictions of violence, which have a very high degree of impact."

In our original post, we explained that we were concerned that the ACMA blacklist included not just child sexual abuse material, but also political speech. We believe that the page we linked to was political speech. It is a set of images of aborted foetuses, designed to shock, aimed at furthering the organisation's messages that women should not terminate pregnancies and that abortion should be criminalised.

Our linking to the page, however, was not to support this message. We used the page as an example of over-blocking of political speech by the current and proposed censorship regimes. We are extremely concerned that Australian websites are currently being required to remove links to what we believe is legitimate political speech, even where that speech is offensive. We are also extremely concerned that, if the Government's plan for mandatory ISP filtering goes ahead, such websites will be blocked without any transparency or avenue for review.

We believe that linking to the blocked page was essential to communicate our message. We believe that Australia's current and proposed censorship regimes result in the illegitimate blocking of political speech. To illustrate this point, we need to link to what we believe to be an example of a page that has been illegitimately blocked.

Linking to the actual blocked page is important. We could have described the content of the page, but we believe that this would not have been sufficient to let Australians make up their own mind about whether the current or proposed censorship regimes are appropriate. We responded directly to comments by the Minister and others in the current debate that material on the ACMA blacklist is 'illegal' material, and that the proposed filter will not block any political speech.

The images on the linked page, being R18+ rated political speech, clearly demonstrate that both of these claims are false. While they may be offensive, they are political in nature and they are certainly not illegal to possess. No amount of textual description would have been as effective at demonstrating this point.

What does this mean?
We believe we may have a colourable claim under the implied freedom of political communication. Clause 121(1) of Schedule 7 of the Broadcasting Services Act 1992 (Cth) (BSA) explicitly provides that the take-down scheme "does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication".

The High Court considered the scope of the implied guarantee of political speech in a series of cases in the 1990s. The test developed in Lange v ABC means that laws that "effectively burden freedom of communication about governmental or political matters, either in its terms, operation or effect" must be "reasonably appropriate and adapted to serve a legitimate end", the fulfilment of which is compatible with the constitution.

This is certainly a worrying example of the dangers of Australia's current and proposed censorship regimes.

It is apparent that Schedule 7 of the BSA "effectively burden[s] freedom of communication about governmental or political matters", as demonstrated by this take-down notice. We might be able to assume that Schedule 7 of the BSA generally serves a legitimate purpose. However, whether it is 'reasonably appropriate and adapted' to that purpose is not clear.

In Levy v Victoria, a restriction on protests against duck hunting was appropriate because it was adapted to avoid physical harm to members of the public in hunting areas. This is not such a case. Any potential harm of somebody finding the publicly available R18+ rated images through a link on our website would seem to be far outweighed by the detrimental effect that the take-down notice has on our ability to engage in informed debate about the legitimate scope of our current and proposed censorship regimes.

All this is complicated by the fact that EFA cannot directly appeal this decision. Because EFA does not host its own websites, our provider is the "links service provider" within the meaning of Schedule 7. Under cl 113(5), an application can be made for a review to the Administrative Appeals Tribunal, but it "may only be made by the links service provider concerned" (cl 113(6)).

We are currently investigating potential means of appealing this decision. As Colin already mentioned, this is certainly a worrying example of the dangers of Australia's current and proposed censorship regimes.

This article was first published on Electronic Frontiers Australia and is republished here with permission.

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