On Monday afternoon, Labor and Coalition senators voted together to wave through legislation rolling out a new Australian internet filter.
The law is intended to stop the circumvention of copyright online – i.e. crack down on the pirating of films, TV shows, music and other content.
But the way it will do this has made advocates of online freedoms and opponents of censorship decidedly nervous.
Instead of focusing on individuals who download copyright material, the laws allow the Federal Court to issue an injunction, blocking anyone in Australia accessing a website where the “primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright”. The new law only applies to overseas sites.
The problem is that this is an extension of internet censorship – the big question is whether checks in the legislation will be enough to ensure that the power is not abused by government.
1) Sinking More Than Pirates
As noted, to order a website to be blacklisted, the Federal Court must be satisfied its “primary purpose” is to infringe or facilitate infringement of copyright.
Websites like The Pirate Bay, which allow users to download copyrighted material for free, without the permission of the rights holder, are likely to be the first blocked by the Court.
But a major concern online freedom advocates have is that despite this test, the laws could still be used to maliciously target troublesome websites that aren’t really about pirating copyright material.
Here’s the most alarming example. The NSW Council for Civil Liberties has argued there is a (remote) chance a website like WikiLeaks could be blocked as a result of these laws. As the website publishes documents whose copyright is owned by various governments, one of those governments may be able to mount a case for blocking the site in Australia.
A more likely problem, however, is that some Virtual Private Networks (VPNs) will fall within the powers of the laws.
Even if you’re not particularly web savvy you will have heard VPNs mentioned regularly in recent debates about online freedom and privacy. They allow an internet user to cover their tracks online, and provide gateways for protected communications. If you’re trying to leak documents or avoid mass surveillance, they’re now essential.
They also allow users to get around copyright restrictions, for example by accessing material that is only licenced to be broadcast in the US.
One threat is that VPNs being used for pirating, as well as a range of legitimate and vital ends at the same time, could be sunk by the new rules.
While Communications Minister Malcolm Turnbull has made repeated assurances that the legislation is not intended to target VPNs, he hasn’t gone so far as to say it doesn’t allow that to happen.
The cut and thrust of the problem is that if you can prove copyright material you own has been published on a website, or that the publication of that material has been ‘facilitated’ by another website, you’re well on your way to blocking a site if you can convince the court its “primary purpose” is copyright infringement.
On the upside, the legislation does allow a Court to consider the public interest of a website before blocking it, but it’s far from a bullet-proof exemption.
Interestingly, both sides of the online copyright debate seem to agree the new laws are too vague, and are worried for opposite reasons.
While the civil liberties/consumer rights side argues it will allow legitimate websites to be torpedoed, the copyright enforcement side (for example the Australian Copyright Council and the Communications Law Centre at UTS) say the “primary purpose” test would allow some pirating websites to keep doing what they’re doing.
2) Corporate Power And Political Donations
According to consumer group Choice – one of the most vociferous opponents of the legislation – the laws will also stop people legitimately accessing creative material.
They give the example of getflix, which allows Australian users to get around blocks already in place and pay for overseas streaming services that have not been set up here. That’s bad news for locally based corporations who buy content available on those services then sell it on to Australians.
In a study (admittedly done before Netflix Australia launched), Choice found an astounding 340,000 households were using technology like this to access Netflix US.
“[The law] could legitimately be used to restrict Australian consumers’ access to goods they’re currently paying for,” Choice campaign manager Erin Turner told New Matilda.
According to Turner, the laws are more about preserving a failing business model than improving copyright protections. This line of argument gets a little more sinister when you consider the scale of the political donations made by major corporate copyright holders.
It’s an argument Greens Senator Scott Ludlam buys into.
“The distribution model – where you could sit on your 20th century distribution bottleneck, put [copyrighted material] up on screen and then wait for two months and do the TV release, and then wait another two months and release it on DVD – is broken,” Ludlam told the Senate on Monday.
“That model worked before the internet existed. Rather than coming up to speed with that fact and offering content in a timely, convenient and cost-effective way, the rights holders – who have collectively donated around $4 million to those parties who are today championing their cause – have called on the government to legislate.”
There are also concerns no-one will show up to court to defend overseas sites who cannot afford to appoint an advocate on their behalf, or simply miss the proceedings entirely.
Both internet freedom advocacy group Electronic Frontier Foundation and the Law Council of Australia flagged this as a problem. A submission made by the latter said the arrangement “may well mean that [applications to block websites] are not scrutinised with the care that such significant orders should receive.”
There are legal checks in place, but they’re not much good if nobody shows to put them to the Court.
It’s worth nothing that despite being generally supportive of the legislation, the Arts Law Centre of Australia says smaller and independent artists are unlikely to benefit. The costs of taking overseas websites who distribute their work to Court is likely to be prohibitive.
This is a law that will best serve the rich and the vindictive.
3) Does It Actually Work?
Those with broader concerns about the law say no. But it’s not just them.
In a submission to the parliamentary inquiry examining the legislation, a perky little upstart by the name of Google said the available evidence suggested other remedies were far more effective at reducing piracy than site blocking.
“A key way to battle piracy is with better, more convenient, legitimate alternatives to piracy.”
This aligns with the arguments put by Choice, which says timely, affordable, and easily accessible content stops people pirating, and that filters don’t.
“People who are determined to pirate will get around this by googling ‘how to navigate around Australia’s Internet filter’ and doing it like before,” says Turner.
Companies like News Corp beg to differ. This graph was included in its submission, and shows the impact Britain’s site blocking legislation had on The Pirate Bay in the UK.
4) Things Get Creepy
The slippery slope argument is never the best, but those like Ludlam are adamant these laws will open the way for further censorship.
Earlier attempts to put filters in place reveal what might be at stake.
When Labor’s Stephen Conroy tried to implement a far-reaching internet filter in 2009 (which the Coalition opposed from the safety of Opposition, and eventually abandoned in 2012) he framed the debate around child pornography.
But when WikiLeaks got a hold of the list of sites that would be blacklisted, it revealed many were regular pornography sites, and others related to euthanasia, gambling, and fringe religious groups. Inexplicably, one was the webpage of a Queensland dentist.
It’s in legislation like this that the new battle against censorship begins.
Filters also enable ‘over blocking’, where websites not intended to be blocked fall victim to technological errors.
It was revealed last year that ASIC has already done this, mistakenly blocking a lazy 250,000 websites in one go. Oops.
Surrounded by a senate preparing to vote down his proposed amendments to the new law, Ludlam had this to say on Monday.
“Does anybody here in this debate, whatever side of it you may be on – whether it is the stale bipartisan consensus down at the other end of the table or if it is up at this end – seriously believe that this scheme will not be expanded in the future to cover more categories of content?
“Of course it will. It has scope creep absolutely built into it. It is lazy and it is dangerous.”