Sydney, 22nd October 2002
All quotes are paraphrases from memory and this is an unpolished draft - corrections are most welcome!
I sat next to Troy Rollo (the Coalition Against Unsolicited Bulk Email), who remained very quiet during the sessions. During the breaks I spent the most time talking with Tim Mansfield (W3C) and Katherine Gelber (UNSW law school).
The first session began with an introduction by Race Discrimination Commissioner William Jonas. Star guest Professor Kasperson, from the Netherlands, then talked about the Council of Europe's handling of cyber racism, in particular about the "first additional protocol [to the Cybercrime Treaty] on racism and xenophobia in computer systems". (Not included in main treaty because US wouldn't sign if it was.) The European model, with criminal sanctions, was contrasted with the Australian approach in Jones versus Toben, with injunctions against publishing "similar content", concerns about private v public, etc.
[At the cyberhate conference two years ago the star guests were from the US (David Goldman and Ken McVay) and I think the organisers got a bit of a shock at both being such strong free speech advocates. Kaspersen presented a very different perspective, anyway.]
Questions were then put to Kaspersen. An observer from the B'nai B'rith asked if "terrestrial laws" weren't good enough. Irene (?) from UNSW law school preempted me with two questions. She asked about the status of email and password protected web sites - email not covered, but chatrooms were public and password protected web sites were likely to be if many people had access. Irene also mentioned that the US probably constituted a data haven and mentioned the "imminent incitement to violence" standard there. Prof Kasperson said "it's a pity", suggested European courts could have jurisdiction of US websites (mentioned the Yahoo case), and said that "eventually" there would be "one single system".
Andrew (UTS) asked about filters (EU not Council of Europe) and the liability of ISP hosting services - not liable unless they have knowledge, but once informed ISPs have to decide. He also asked about Turkey and the Armenian genocide, the response to which appeared to be along the lines that nations set their own standards and that it was ok for Turkey to apply sanctions to people explaining the Armenian genocide as it actually happened... Which was rather scary, but an excellent example of the dangers of letting governments regulate ideas! [For those who don't know, the Turks killed several million Armenians between 1915 and 1918, but the official Turkish position is much like that of Holocaust deniers - it never happened.]
Peter Coroneos (Internet Industry Association) explained how ISPs shouldn't be required to decide legality... different in Europe, where independent "extra-legal" monitoring bodies could inform ISPs, after which they had no "good faith" defence if they took no action.
Paul Hunt asked about funding of monitoring bodies in Europe - government funded - and whether they reported to the police - yes. The public have to report cases for the system to work.
Session Two: Regulatory Effectiveness in Australia
The moderator suggested there were two different groups involved: "consumers" (victims) and regulators. The man from the Arab Council talked about race hate in general. Jeremy Jones talked about threatening email, web sites and search engines, and complained about ninemsn bulletin boards and the Canberra Times open policy on their letters page. Rothman talked about the time and resources needed to bring a case, and Brendan Cody (Gilbert and Toben) talked about the difficulties of enforcement.
The ABA is mostly concerned sexually explicit material, high threshhold for racism (RC). The OFLC is "not designed" to deal with racism. (But "really is a form of censorship which we exercise".) Unless it's coverd under instruction or promotion of crime and violence, it would need legislation changed for the OFLC to deal with it.
HREOC (Edwina) talked about problems of jurisdiction and identification of respondent - most cases not as easy as Toben, and even that took six years... Peter Coroneos suggested "just close down the Internet" - also pointed out that "relevant authorities" other than the ABA can issue requests under the IIA Code clause 7.10 and talked about a case in Queensland (Metal Storm?) - if that finds hosting services reponsible for bulletin boards, no more open bulletin boards in Australia... And he mentioned the risk of regulations that infringe on privacy.
Tom Dale, asked about regulating email, talked about spam report - many people concerned about pornographic spam, racism not highlighted in submissions. ninemasn - chat room monitoring impossible, 30 000 communities, don't take responsibility for sites, automated filters can be evaded.
Commonwealth Public Prosecutor - criminal law "big stick". resources not available for extradition, uniformity of legislation - "leaving aside the United States" (a "big hole")
Questions from observers: EOC in Victoria 2002 Act has criminal provisions (and electronic) but all cases civil so far. conciliation inappropriate
Luke McNamara (Wollongong University) - no criminal cases in Australia yet (legislation since 1989 in NSW) - would need unequivocal indication of unlawful conduct - but lines are blurry... hard - hence "soft" legislation
Does the system work? asked the moderator.
Peter Coroneos talked about what is actually possible, about risk and proportionality. The woman from the AG mentioned RDA 1975. Rothman suggested that the criminal standard was too high, he wasn't that keen on criminal rather than civil sanctions. Edwina and CPP exchanged a commentary on the Crimes Act - he was thinking of 85ZE, on misuse of telecommunications, while she was thinking of laws of general application, for extreme cases.
I got in a piece about racism not being clearly defined, starting with "I'm a racist and you all are too" (the academics understood what I was saying, but some people obviously didn't). How there's huge fuzzy zone of stuff people might not like but which couldn't sensibly be regulated, how the Internet is different to traditional media because regulation falls on individuals not just publishers, about how EFA supports the US position, drawing the line at "imminent incitement to violence", etc. When asked by moderator, no one on panel said they supported that... which was hardly surprising.
Response from Jeremy Jones - the US approach no good because of "leaderless resistance" (though that is obviously illegal under criminal law already, and how HREOC-style regulation is going to help I don't know!).
Luke McNamarra asked if chatrooms or password protected web sites were private? And how willing participants could be offended. In discussion Edwina suggested that it would be difficult with no aggrieved person, but that a shallow "veil" would not be enough to make something private. Rothman suggested the goal was ridding society of an evil, not necessarily preventing people being offended. The man from the Arab council said that censorship dealt with symptoms only, and that education was needed to deal with the causes.
Session Three: Options for Regulatory Improvements
There was much discussion of whether criminal sanctions were a good idea here, and of the existing Crimes Act 85ZE. The Commonwealth Public Prosecutor suggested that since criminal sanctions were considered by parliament in drafting the RDA but rejected, that was an argument against race hate prosecutions under general criminal law. But he suggested that "dressing up" actions under 85ZE would allow criminal discovery (search warrants etc.) and enable international cooperation (though he said extradition for this kind of stuff was most unlikely). He also said that the only way to get criminal sanctions would be "crisis legislation", and suggested a tie-in with anti-terrorism...
Kaspersen said the First Amendment was too absolute [actually, it's not absolute, it just sets the barrier at a different level] and talked about case-law from the Strasbourg court. Not "over-criminalised" - only for serious, "very harmful" conduct. Also noted that sex/gender/age discrimination was, unlike race hate, not covered by criminal law in Europe... In Netherlands, private watchdogs inform ISPs of problem material and if they don't act then can't claim "unknowing" defences... ie, privatised censorship (I got in comment with objections to this).
Paul Hunt from the OFLC sugested there was no "political will" to apply classification/censorship system to hate material. Edwina argued the BSA/classification scheme needed to be made consistent with RDA. (would require SCAG and new legislation by states and commonwealth) - no discussion of who would pay (apparently HREOC's funding has been cut recently...)
Paul Greenfield asked what is the goal of regulation: Censorship? Punitive? Attitude change? Symbolic statement? Deterrent?
The ninemsn person (?) suggested that they'd act on private complaints without hesitation -- someone said "So what if I complain about Pauline Hansen's web site" and he came back with something along the lines "that's a registered organisation, a business, not just a private site, we wouldn't want to interfere with that"...
My comment in response that individuals shouldn't have weaker rights than businesses actually scored some applause! I also attacked idea of privatised censorship, with bodies other than courts able to get ISPs to act (through indirect threats). Katharine Gelber (UNSW law lecturer) talked about the campaign for a Bill of Rights, implied freedom of political communication, and the risk of pushing racism underground.
Session Four: Non-Regulatory Approaches
This was half about filters and half about education.
The idea that Australia should take the "Chinese approach" and filter the universe was met with... not quite laughter, but no one was really endorsing it. The discussion of personal filters baffled Professor Kasperson, who twice expressed concern that filters were the solution to a diferent problem... I don't think he understood that Australia is half-way towards the United States.
There was a lot of "geek" support for tech solutions here - James Day (Social Change Online) was now on the panel and Andrew (UTS) and Tim Mansfield (W3C) also spoke. There was also discussion of regulators needing education, support from the more clueful - I wish I'd got in the same comment here that I'd got in two years ago, about support drying up rapidly once they started censoring ideas.
The Race Discrimination Commissioner in his closing speech said that he wasn't a racist and didn't appreciate being called one... obviously a reference to my earlier comment, the point of which he had clearly missed completely. (There is no simple binary division of the world into "racists" and "non-racists" - and everybody has some racist prejudices.)
I think the chances of the Classification Act being rewritten are slender, but HREOC finding some way to issue takedown notices to ISPs using the IIA Code is not inconceivable. The "sextuple jeopardy" is a worry (for both users and ISPs), but the "inefficiency" of having half a dozen different regulatory bodies is in many ways a blessing.