As if made to order, the leaking of ACMA’s blacklist perfectly demonstrated the faulty logic behind the Government’s net filtering proposal. Even assuming a government that can resist the temptation to further extend the already wide-ranging limitations on free speech online in Australia, there will always be someone who ends up on a blacklist by mistake or others’ malice and will have no idea that their site — which may be crucial to their business, or serve perfectly legitimate community goals — is suddenly unreachable.

It also shows how information is viral on the internet and trying to stop its spread is like trying to kill a disease one cell at a time. The Age was claiming this morning that the Wikileaks site, which hosts the list, had been “blocked”, but it could still be found via a simple Google search at the time of writing.

The response of censorship proponents was predictable. Stephen Conroy fired off a press release at 3.02pm talking about referrals to the AFP and “serious risk of criminal prosecution”. Moral panic merchant Bernadatte McMenamin predicted “every 15-year-old boy in the country is going to be after this p-rn list” — perhaps they all want to go to the dentist — and demanded the gaoling of those responsible for its release. That’s the way Bernadatte – gaol ‘em first, ask questions later.

There is, unfortunately, a caveat on all this that suggests both anti-free speech warriors like McMeniman and diehard net libertarians ought to calm down a bit.

In 2006, for my sins, I had the honour and privilege of overseeing a significant extension of the enforcement powers of ACMA. Regulatory guru Prof Ian Ramsay had been commissioned to review the powers ACMA used to regulate the media and found that they didn’t give enough options to the regulator to effectively administer areas like broadcasting content and licensing. The new powers, introduced along with the Howard Government’s media ownership changes, gave ACMA a greater range of options for enforcing the media regulatory framework.

The only problem was that ACMA, particularly in its former guise as the ABA, barely used the powers that it did have. Because of the “co-regulatory” nature of the media regulation framework, the requirements of natural justice attached to investigations and enforcement and ACMA’s risk-averse nature, the regulator was treated like a mug by industry.

It took forever to carry out investigations even of open-and-shut breaches of broadcasting codes of practice, weighed down by the insistence in broadcasting regulation that it not move without extensive consultation and natural justice, and wrist-slapped the perpetrators when it found they’d committed a breach. Even then, larger media companies incessantly appealed ACMA decisions and frequently won in the Federal Court.

Anyone who thinks ACMA will turn into the Elliott Ness of cyberspace, busting down the doors of geeks circulating the URLs of illegal tuckshop websites, doesn’t know the regulator. The only risk to perpetrators is that of dying of old age while waiting for ACMA to finalise its investigation.

This is a further reason why Labor’s net-filtering scheme is badly-flawed. The media regulator simply isn’t cut out to play cyber-cop on the beat. It is too slow, too legalistic and, for that matter, is too busy with a slate of other major issues like digital conversion and spectrum allocation to make an effective Big Brother.

On ACMA’s record, net filtering will be poor policy, poorly enforced.

Peter Fray

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