The Comment Factory

Earlier this month the Australian government announced the testing of a controversial Internet filter, the so called “Clean Feed”. The ISP level filter is ostensibly aimed at the protection of children, through mandatory censorship of all websites depicting child pornography and opt-out censorship of a poorly defined range of other material deemed objectionable.

The particulars of Australian politics rarely trouble the rest of the world, but all should be wary of the precedent value of this scheme. The Australian government justified the filter to the public on the basis that similar programs were common in other liberal democracies, including the United Kingdom, Canada, Sweden, Norway, New Zealand and Finland. This assertion was subsequently shown to be false and apparently retracted, although at present it still appears on the government’s official website. It seems likely that any government seeking to justify Internet censorship will rely on the Australian example if it is implemented.

The proposed filter has been the subject of enormous criticism in Australia. IT experts have dismissed it as “technically impossible”. The results of initial tests suggest that it may result in the speed of the Internet being slowed by 87 percent and “will accidentally block huge numbers of legitimate sites”. In a survey of concluded this month only 13.3 percent of respondents supported the filter. It has been alleged that it will bring Australia into the company of only China, Cuba, Iran and North Korea in terms of censorship.

These objections have been extensively argued elsewhere and I do not propose to address them here. Rather, I propose to look at the approach the Australian government has taken in terms of freedom of speech.

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Australia has no constitutional guarantee of freedom of speech, except insofar as it relates to political communication. However, there is no serious argument against the proposition that speech should only be restricted where it necessary. A liberal democracy aims to give its citizens choice and the freedom to exercise it. Free communication is an important aspect of choice. It is critical to the development of ideas and individual thinking and personality. Speech should only be qualified where there is serious harm that will be alleviated by the suppression of that speech.

The proposed Internet filter unquestionably limits speech, but the government has made no more than cursory attempts to demonstrate why it is necessary. The case against child pornography has been sufficiently debated not to require further analysis. This is not true of the vague list of other areas to be censored, which apparently includes mainstream pornography, euthanasia and anorexia websites.

The point is not, necessarily, that censorship of this type of material cannot be justified. Rather, it is that freedom of speech should never be qualified without a clear and cogent explanation of why it is necessary. This has not occurred. The failure to provide this justification matters in a number of ways.

First, a failure to explain the need for the measure limits public support for the proposal to those who already accept that the content in question should be restricted. No attempt has been made to convince the uncertain, the doubting or the ignorant. Even if the government itself is convinced the measure is necessary, this is bad governance.

In this respect, it is notable that the proposed censorship follows on from a government program that allowed parents to choose to download free filtering software. It failed in part because of technological limitations, but primarily because most parents showed no interest in it. According to research by the Australian Communications and Media Authority – a government agency – the major reason for the poor uptake was that parents saw it as unnecessary. Apparently “[f]ifty per cent did not install filters because they trusted their child. Seventeen per cent of parents felt that installing software was redundant because of their use of other safeguards.” The government clearly believes that these parents made the wrong decision. It is regrettable that rather than attempting to persuade those parents to change their mind, it leapt to censorship.

Second, if the unpopular measure is implemented, the lack of an intellectual defense for its existence means that it is less likely to be respected. At present it seems likely that many individuals will react to it with hostility and attempt to circumvent the filter. This would be less likely to occur if, for example, a convincing case had been shown linking the viewing of mainstream pornography with a propensity for negative attitudes towards women. Laws are more likely to be respected and supported by the community when they appear rational.

Third, a cogent explanation of the need for the measure would go a long way towards dispelling concerns that the filter is just the first step towards much greater limitations on freedom of speech. The concern is obvious — assuming it can be made to work, once the infrastructure for censoring the Internet is in place it would relatively simple to expand the list of prohibited sites. This concern is not helped by the government’s insistence on keeping the list of prohibited websites secret and restricting Freedom of Information requests in relation to the program. The absence of an explanation of the logic behind the choice of content to be prohibited exacerbates these fears.

Fourth, the lack of an explanation highlights the failure of the government to directly confront the alleged negative messages of these websites. The traditional liberal response to harmful speech is not to restrict the speech, but to engage in counter-speech. If it is believed that pornography fosters the objectification of women, then the first step should be to provide a counter narrative affirming the autonomy, freedom and worth of women. Identifying the existence of a harmful link that illustrates why the speech is bad is critical to this process. It seems uncontroversial that it would be preferable if “bad speech” could be dealt with by exposing it to “good speech” rather than by censoring it.

It is worth noting that the concept of inoculating people against the effects of bad speech is not purely theoretical. Although open to criticism, there is empirical support for this idea. To give one example, in the context of pornography, a study was conducted in which a group was exposed to images of nonconsensual sexual intercourse and then briefed about the nature of rape as a crime. This group was found less likely to blame the victim and more likely to impose harsh penalties on perpetrators of rape than groups which hadn’t been briefed – even if they unbriefed group were only shown images of consensual intercourse. Applying this logic, if the Australian government is concerned about the harmful effects of pornographic or pro-anorexia websites, it needs to demonstrate that counter-education is inadequate before it proposes censorship.

The failure by the Australian Government to engage in meaningful counter-speech makes censorship look a draconian measure. Counter-speech might not work, but it should have been attempted. This is particularly the case given that, by definition, all the affected users of the undesirable speech are users of the Internet. In the past the efficacy of counter-speech has been doubted because it was thought that the recipients of the bad speech would not expose themselves to the outlets of good speech. The Internet provides a historically unique opportunity to provide targeted messages to the recipients.

It is true that the Government is proposing a program of education for children about safe use of the Internet. Educating minors about avoiding giving out personal details to strangers in chat rooms is desirable. It is not the same as counter-speech. It does not provide an explanation as to why certain content should be avoided. Nor does it engage with the substance of undesirable content that might be found.

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It is not clear why the Australian Government has not provided a justification for the censorship. If a proper analysis has been conducted of the harms of the material to be censored then it should be made public. There is no shortage of academic support – the desirability of censoring this type of material has been extensively argued for many years. In the case of pornography the case setting out the harms has been readily available since the efforts in the 1980’s of radical feminists such as Catherine Mackinnon and Andrea Dworkin. This is not to say that such arguments are necessarily correct, but it highlights the inadequacy of the government in providing an explanation given that the intellectual heavy lifting has already been done.

Cynics might suggest that the whole proposal is simply a play for the votes of social conservatives. The unpopularity of the proposal makes this questionable. An alternate hypothesis is that the government has not identified a specific need for censorship and is assuming it to be necessary. This would be troubling. Limitations on freedom of speech should not be imposed on gut instinct.

Whatever the truth, it is clear that the failure to outline the need for the proposed censorship is unacceptable. Even if is accepted that there are harms that require censorship, a failure to clearly identify what they are is bad governance. It undermines respect for the government and reduces the efficacy of any restrictions. It shows a lack of respect for the citizen and a frightening disregard for the importance of free of speech.