State-based censorship regimes need a Digital Bill of Rights for consistency

The New South Wales Parliament may soon effectively make discussing "adult themes" online a crime throughout Australia. But on the Internet we are all potentially affected by the laws of all eight states and territories and the Commonwealth. If you put material online in Australia, you are subject to the laws where you are, the laws where you send the material, and the laws of any jurisdictions you send the material through.

The general effect of this is to make the most restrictive law the prevalent law. Newspaper publishers have had this problem for a long time. Although newspapers generally serve only one locality, the publishers may be held liable for defaming someone interstate. Victorian and News South Wales defamation laws are the most restrictive, and effectively set the national standard for defamation. On the Internet, ordinary people are now subject to the same dilemma. We are all nation-wide publishers, indeed international publishers. We are potentially subject to any of the various Australian laws prohibiting defamatory, X or R rated, or unclassified material. Not knowing the law has never been an excuse, but having to know all the relevant jurisdictions is a bit over the top.

The need for a national approach is increasing. The New South Wales and South Australian Parliaments are presently considering bills that would criminalise the publication of R-rated material on the Internet (see Electronic Frontiers Australia http://www.efa.org.au). These two bills will unduly stifle expression online, in part because published material would be classified only after criminal charges had been laid – a pernicious retrospectivity. This effectively gives a classification board the power to convict by a majority vote. Discussing "adult themes" is enough for an R rating and therefore potentially attracts a criminal conviction. These laws will most likely not be the last nor the worst to be proposed.

The Commonwealth Parliament should legislate for the online rights of Australians. In support of this, a resolution was passed by Australian Young Labor (AYL) this year:

Bill of Digital Rights and Responsibilities

Global electronic communications have created a defacto standard for free speech online and it is not a coincidence that the most dynamic and enduring societies and economies are those that foster freedom of expression.

Recent and proposed legislation relating to digital communications has acted to erode legal certainties and rights. This trend should be decisively reversed.

The Commonwealth Government should commence public debate on a Bill of Digital Rights and Responsibilities, to be legislated using the Commonwealth's electronic communications powers under the Constitution.

Such a Bill would include:

• A recognition that when communicating online there is the responsibility to not racially vilify or otherwise contravene the Commonwealth Racial Hatred Act or other Commonwealth Anti-Discrimination legislation.
• A less restrictive national definition of defamation, overriding laws of the states and territories. The defamation laws would provide:

1. Freedom for non-malicious speech acts concerning corporations.

2. Freedom for non-malicious speech acts concerning matters of public interest.

3. That in the absence of malice no general damages be awarded.

4. The burden of proving malice would be with the complainant.

• A right to not be criminally prosecuted for any speech act made digitally that is of a purely expressive nature, with well-defined non-trivial exceptions. Also, a right to publish those speech acts on or by means of computers within Australia.
• Some guarantee of the opportunity for each Australian not just to access digital information, but to publish it. The information super-highway must not be one-way; barriers to entry must be lowered as much as possible for the Australian with an idea and a small budget.
• A right to fair use of all digital intellectual property, restoring the original intent of copyright law.
• A right to not have substantive personal information transmitted from one's personal computer without consent.
• A right to use communications technology provided by an employer or educational institution for non-work or non-study purposes to a limited extent.

The proposed bill would not just foster freer speech, but also address the need to increase opportunities for online communication, provide for privacy, improve copyright law, and ensure workers and students are treated fairly. The suggested national online defamation law is similar to the standard proposed by Free Speech Victoria.

Fundamental to these proposed rights is the notion that government can no longer realistically expect to control its citizens' access to and participation in discussions and communication online. Government should not just acknowledge this, it should facilitate participation by investing in telecommunications infrastructure.

In the era of mass media, the people receive their information from a small number of influential sources. This concentration of media largely results from the economies of scale required to profitably operate a media organisation with twentieth century technology. This concentration makes media vulnerable to government influence and regulation, through defamation laws, onerous classification schemes, broadcasting licenses and special handouts .

But in the online era any person can be a participant in a devolved and diverse media, whether through email lists, websites, chat sessions, or however. Attempts to regulate communications between mere citizens will produce laws which are enforced as infrequently as they are unfairly. Prosecutions and heavy damages will be visited upon those who stand out from the crowd, not for the inherent illegality of their speech, but because they are an annoyance to some petty or vindictive person or corporation. Defamation laws will continue as a general disincentive against free discussion, not necessarily because a discussion may be technically illegal, but because of the risks surrounding the interpretation of defamation laws. The High Court's limited recognition of free political communication has not improved the situation much. (see Theophanous but also Lange). Citizens are still being intimidated into apologies and costly settlements by wealthy complainants using defamation laws.

Exactly which rights should be legislated by the Commonwealth Parliament are a matter for discussion but we can no longer sensibly leave the matter for state parliaments. A national approach is required, an approach founded on an appreciation of the fundamental importance of freer communication.

James Madison said:

"A popular government without popular information or the means of acquiring it, is but a Prologue to Farce, or a Tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

Was the 2001 election a Farce or a Tragedy? Given the Howard Government's manipulation of the media for the purpose of winning a third term, it is doubtful they would want to give effect to these ideas. It is up to the Labor Party to make the argument for a national guarantee of freer communication online.

Acknowledgments

Assistance with some legal details was provided by Helen Wilson.

The motion itself was drafted by the author with input from Ben Heraghty, current AYL President.