Online pornography in australia: lessons from the first amendment

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The Child Online Protection Act

Following Reno No 1, Congress passed the Child Online Protection Act (‘COPA’)143 in a second attempt to regulate Internet content. The COPA made it an offence to knowingly, and for commercial purposes, make a communication to a minor by means of the Internet, where the communication contained material harmful to minors. It defined ‘material harmful to minors’ as obscene and expressly included a definition of obscenity based on Miller144 (ie, with reference to ‘community standards’).145 Affirmative defences applied to commercial content providers who restricted access to regulated material using an age verification mechanism, including requiring a credit card, personal identification, digital certificate, or ‘any other reasonable measures that are feasible under available technology’.146 On 22 June 2000, in American Civil Liberties Union v Janet Reno, Attorney General of the United States (‘Reno No 2’),147 the US Court of Appeals for the Third Circuit affirmed the grant of a preliminary injunction preventing the enforcement of the COPA. The main reason for the affirmation was, as highlighted in Reno No 1, the inclusion in the definition of obscenity of a test based on ‘community standards’. Such a test

essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state’s community standards in order to avoid criminal liability [because of the] inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor.148

Obviously, it is impossible to identify a single community standard throughout the US, just as it is impossible to identify such a standard throughout Australia or the world as a whole. This raises a difficulty for Congress, which may have to develop some alternative standard for assessing indecency and obscenity on the Internet if it wishes to pursue the notion of Internet content regulation. Alternatively, it might find that technology races ahead in offering a means to target access to particular sites by people of particular ages or in particular regions. In either case, it will be up to the courts to determine whether the resulting legislation is constitutional, or whether the right to freedom of speech in the First Amendment requires Congress to take a more restrained approach.

Australia’s Solution to Online Pornography

  1. Traditional Reluctance About Rights149

Rights in Australia are protected by democratic principles as well as the federal constitutional system of checks and balances, characterised by judicial review and bicameralism.150 The Australian Constitution contains only limited guarantees of rights. Peter Bailey lists specific ‘rights’ provisions of the Australian Constitution under the headings ‘Political Rights’, ‘Civil and Legal Process Rights’, ‘Economic and Equality Rights’ and ‘Social Rights’.151 These are not all strictly ‘guarantees’, and in some cases the extent to which they involve the provision of rights is debatable.152 Several provisions of the Australian Constitution are relevant to freedom of speech. For example, in a broad sense, individuals have a right to free speech through the requirement of direct election by the people of members of the House of Representatives,153 and through the strict criteria for amending the Australian Constitution by referendum.154

Australia has generally been reluctant to recognise or enforce specific individual rights and freedoms. This reluctance is exemplified by the pattern of sporadic calls for a Bill of Rights in Australia,155 and the failure of constitutional referenda for the entrenchment of greater guarantees of rights.156 The Australian people rejected the proposed insertion of a guarantee of free speech and expression as part of a broader referendum proposal in 1944.157 Hilary Charlesworth suggests that this reluctance may be due in part to an enduring faith in the system of responsible government in a democracy.158 This is consistent with Brian Galligan’s suggestion that equality ‘is the most fundamental Australian value which pervades social and political life’.159 While equality and individual liberty are not necessarily mutually exclusive,160 if a society focuses on justice in terms of giving everyone an equal say, this tends to discount the fact that, without additional protections, those in the minority risk consistently having their interests subordinated in favour of the majority view. In other words, recognition of minority rights may run counter to the utilitarian nature of Australian society,161 and democracy alone will not necessarily protect those rights.162

Although the Australian common law includes a principle that freedom of expression cannot be legislatively curtailed except by clear and unambiguous language,163 the right of freedom of speech has traditionally played only a small role in judicial decision-making.164 For example, in 1951, the High Court of Australia declared the Communist Party Dissolution Act 1950 (Cth) unconstitutional.165 The Act purported to dissolve the Communist Party, confiscate its assets166 and impose disabilities on its members and officers.167 The Court’s decision was based primarily, not on the rights of individuals to hold and express particular political opinions, but on the absence of a relevant head of legislative power under which Parliament could enact such legislation in accordance with s 51 of the Australian Constitution. Individual rights were only incidentally protected: ‘The court did not regard the substance of the legislation as antithetical to the rule of law’.168
Growing Recognition of Rights

Over the last decade, the Australian approach to human rights principles and rights discourse in general has been changing. Rights are becoming a more important feature of the legal, social and political landscape. One reason for this is the informal influence of the US culture of civil liberties, for example, through film, television, magazines and newspapers.169 Another reason is Australia’s role as a party to several human rights conventions, including conventions guaranteeing freedom of speech.

Australia is a party to the ICCPR.170 Yet the ICCPR has not been implemented in Australia through domestic legislation (as required under Australian law if it is to take effect domestically),171 even though the ICCPR is annexed to the Human Rights and Equal Opportunity Act 1986 (Cth).172 However, in the case of ambiguity, Australian courts may interpret a domestic statute with regard to such conventions, and may prefer a construction that is consistent with Australia’s international obligations.173 Australia also has a theoretical incentive to comply with international obligations because it is now a party to the Optional Protocol to the International Covenant on Civil and Political Rights (‘Optional Protocol’).174 This means that Australian citizens can report violations of the ICCPR to the Human Rights Committee of the United Nations. However, decisions of the Committee are not binding. In practice, the Australian Government’s response is likely to depend on the degree of political will and pressure associated with the particular decision.175

The High Court has handed down several important decisions in recent years recognising individual or human rights.176 For example, the High Court has recognised a specific freedom of political communication as being implicit within the system of representative government established by the Australian Constitution,177 or at least within the text of ss 7 and 24:178

Once it is recognized that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains.179

The Court’s recognition of the importance of free political communication is linked to the rationale of promoting democracy through freedom of speech generally.180 Rather than extending to protect all or most speech, this implied freedom is restricted to political communication, including: critiques of or comments on State181 or federal governments, political leaders182 or public agencies like the Industrial Relations Commission;183 advertising by political parties on radio or television during federal election periods;184 and other speech relevant to the development of public opinion or matters of public affairs.185 Thus, although non-verbal, visual images or symbolic speech may be protected,186 this implied freedom is unlikely to protect any form of sexually explicit material or pornography, because of the absence of any political content.

The freedom of political communication implied in the Australian Constitution is therefore relatively limited in scope. It is focused on facilitating representative government for the good of the community rather than on allowing individuals to develop personal autonomy or self-fulfilment through speech.187 As such, it involves immunity from governmental action rather than regulation of matters arising solely between private parties,188 ie, a freedom from laws curtailing political communication rather than a freedom to communicate.189 It does not guarantee voter equality,190 and has been held not to protect speech that encourages voters to fill in ballot papers other than in accordance with the prescribed method.191 Finally, even if a particular kind of speech is protected, a law that burdens that speech by its terms may nevertheless be valid if it is ‘reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’ and the referendum procedure established by s 128.192
The Online Services Act

The passage of the Internet censorship legislation in Australia, and the constitutional limits on the power of legislatures in the United States to regulate communications content, mean that Australia and the United States represent extreme examples of the legal responses of Western societies to the problem of Internet content.193

On 1 January 2000,194 Australia’s solution to online pornography came into effect, in the form of the Online Services Act. The main amendment effected by the Online Services Act was the insertion of a new Schedule 5 into the Broadcasting Services Act 1992 (Cth), which sets up a scheme for regulation of certain content on the Internet. Internet content hosts and Internet service providers (‘ISPs’) bear the primary burden of ‘cleaning up’ the Internet in Australia, and substantial monetary penalties apply for non-compliance.195

Under the Online Services Act, Internet content hosted in Australia may be the subject of a ‘take down notice’ by the Australian Broadcasting Authority (‘ABA’). Such a notice directs the content host to cease hosting particular content and not to host it in the future. The classification of content for the purposes of the notice is based on the Australian classification scheme for films and television programs, which includes the categories of ‘R’ (restricted), ‘X’ (sexually explicit) and ‘RC’ (refused classification).196 The ABA is required to issue take down notices in respect of content hosted in Australia that is prohibited or potentially prohibited, being content that has been or is substantially likely to be rated X or RC. Unless subject to a restricted access system approved by the ABA (for example, requiring a PIN to access), content rated R is also prohibited.197

The Online Services Act also regulates Internet content hosted outside Australia, and the ABA can similarly issue a notice to an Australian ISP to take reasonable steps to prevent access to prohibited or potentially prohibited content hosted offshore, in accordance with any applicable industry code registered by the ABA, or any other applicable ABA standard.198 For offshore content, the prohibition applies only to X and RC rated material.199 In late 1999, the ABA registered a code of practice (developed by the Internet Industry Association) allowing ISPs to provide end users with approved content filters rather than blocking content from overseas sites.

Various commentators have criticised the Online Services Act as being both ineffective in its goal of limiting access to pornography on the Internet,200 and unduly onerous in imposing strict obligations on ISPs.201 Peter Chen states that the Online Services Act exemplifies ‘symbolic politics’: ‘the desire of the decision-maker to appear active on an issue when he or she is not’.202 As such, the Internet industry in Australia is likely to respond by hosting content offshore if it is prohibited in Australia.203 This is an illustration of the very nature of the Internet: ‘The Net interprets censorship as damage and routes around it’.204 The principles underlying the Online Services Act and the manner in which it has been drafted are also confused and inconsistent.205

The implementation of the Internet Industry Association’s code has also been criticised. While ostensibly reducing the extent of regulation, the unfortunate effect of this change is that the acceptability in Australia of content hosted overseas will depend on ‘American beliefs and values’,206 since the majority of commercial filtering services are designed by Americans. At the same time, the usual difficulties with such services arise.207 In particular, due to technological limitations, content filters tend to be both over-inclusive and under-inclusive, filtering out desired material, such as educational material about sex, while failing to filter out particularly offensive material.208 Moreover, users can choose not to use the filters.209 This may be a triumph for individual liberty, but it appears to represent an unwitting departure from the strict, conservative approach taken in the Online Services Act as a whole.

Aside from its poor drafting and unwanted practical effects, the Online Services Act represents an insidious form of regulation. It restricts access to material deemed offensive, even though such material is available in the form of books, magazines and videos.210 Moreover, while it ostensibly derives from a concern about children’s access to such material, it makes no attempt to limit itself to children’s access and restricts adult choices as well.211 This suggests an unwillingness on the part of the Parliament to accept adults’ rights to take responsibility for their own viewing habits and to follow their own moral compass. The Federal Government responded in this extreme fashion to the problem of pornography on the Internet in the absence of real contemplation and public consideration of the competing arguments. The legislation was heavily influenced by the moral conservatism of the Senate Standing Committee on Information Technologies,212 and stands in stark contrast to the US law on this issue.


The conflict between freedom of speech and pornography has produced some strange bedfellows. Dworkin and MacKinnon accuse the American Civil Liberties Union of having economic ties with pornographers.213 Strossen cautions against the alignment of feminist anti-pornographers with right-wing conservative and fundamentalist Christian groups.214 The current US approach to online pornography may be less than ideal, and should not necessarily be followed in Australia. However, it is clear that if Australia is to reach a defensible position on online pornography it must give further thought to issues of free speech and harm. The reasons for protecting speech – based on ideals of democracy, autonomy and equality – apply equally in Australia, despite the lack of an equivalent to the First Amendment. The importance of this freedom must be compared to the lack of evidence of a direct causal relationship between pornography and physical, emotional and social harm. More importantly, even if such a relationship could be established, banning pornography is unlikely to remove, and may well intensify, any harms it presently causes. Criminal conduct associated with pornography would be better dealt with under laws directed specifically at that conduct rather than by censorship.

The Online Services Act imposes a strict regime limiting access by adults and children alike to material considered offensive by a group of moral conservatives. This approach conflicts with the rights of individuals to determine what is appropriate for them and their children to see. Further, in the context of the Internet, there is even less reason to attempt to regulate pornography than in other media. The nature of the Internet means that, at least at present, it is extremely difficult to stop people accessing material they wish to see. The likely impact of the legislation is therefore to move pornographic material offshore without preventing it being accessed from Australia. While it may fail in its goal of ridding Australians of online pornography, it is still a step in the wrong direction. The Internet offers a uniquely open forum which should be embraced and nurtured rather than strangled, as the Online Services Act seeks to do.

* BSc (Melb), LLB (Hons) (Melb), LLM (Harv), AmusA; Solicitor, Mallesons Stephen Jaques, Melbourne. I submitted an earlier version of this article as part of a Graduate Diploma in International Law at the University of Melbourne. I would like to thank Gigi Sohn, Andrew Mitchell, the Journal’s Editors and the anonymous referees for their helpful comments in the preparation of this article. The views expressed herein, and any errors, are mine.

1 American Civil Liberties Union v Janet Reno, Attorney General of the United States, 929 FSupp 824, 883 (Ed Penn, 1996) (Dalzell J).

2 See generally Joan Kennedy Taylor, ‘Gender Symposium: Does Sexual Speech Harm Women? The Split Within Feminism’ (1994) 5 Stanford Law and Policy Review 49.

3 See, eg, Nadine Strossen, ‘Fighting Big Sister for Liberty and Equality’ (1993) 38 New York Law School Law Review 1; Nadine Strossen, ‘A Feminist Critique of “The” Feminist Critique of Pornography’ (1993) 79 Virginia Law Review 1099; Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (1995); Nadine Strossen, ‘Hate Speech and Pornography: Do We Have to Choose Between Freedom of Speech and Equality?’ (1996) 46 Case Western Reserve Law Review 449. See also Gillian Rodgerson and Elizabeth Wilson (eds), Pornography and Feminism: The Case Against Censorship (1991).

4 See, eg, Catharine MacKinnon, ‘Not a Moral Issue’ (1984) 2 Yale Law and Policy Review 321; Andrea Dworkin, ‘Against the Male Flood: Censorship, Pornography, and Equality’ (1985) 8 Harvard Women’s Law Journal 1; Andrea Dworkin and Catharine MacKinnon, Pornography and Civil Rights: A New Day for Women’s Equality (1988); Catharine MacKinnon, Only Words (1993).

5 See below Parts VII (A) and (B).

6 Edward Cleary, Beyond the Burning Cross: The First Amendment and the Landmark RAV Case (1994) 109.

7 413 US 15, 24 (1973).

8 Roth v United States, 354 US 476, 489 (1957).

9 Federal Communications Commission v Pacifica Foundation, 438 US 726, 740 (1978).

10 Ibid 746.

11 Ibid 740.

12 Dworkin, ‘Against the Male Flood’, above n 4, 515, 520.

13 Catharine MacKinnon, ‘Pornography, Civil Rights and Speech’ in Catherine Itzin (ed), Pornography: Women, Violence and Civil Liberties (1992) 456, 464. See below Part IV(D) for further discussion of MacKinnon’s notion of pornography in and of itself subordinating women.

14 Ibid 465.

15 Dworkin and MacKinnon, above n 4, 138-42; Mary Heath, ‘Catharine MacKinnon: Toward a Feminist Theory of the State?’ (1997) 9 Australian Feminist Law Journal 55, 55-8; Andrew Jacobs, ‘Rhetoric and the Creation of Rights: MacKinnon and the Civil Right to Freedom from Pornography’ (1994) 42 Kansas Law Review 785, 785-92.

16 See the discussion in Strossen, Defending Pornography, above n 3, 75-7. See below Part IV for further examination of the various harms arising from pornography.

17 American Booksellers Association v Hudnut, 598 FSupp 1316 (D Ind, 1984); 771 F2d 323 (7th Cir, 1985); 475 US 1001 (1986).

18 MacKinnon, above n 13, 465.

19 Ibid 466.

20 Strossen, Defending Pornography, above n 3, 13, 16.

21 Ibid 53-5.

22 See generally the language used in Strossen, Defending Pornography, above n 3.

23 See, eg, the criticisms of this term in Strossen, ‘A Feminist Critique’, above n 3, 1103-4.

24 Opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976).

25 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 365.

26 See Henry Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (1996) 767-71.

27 Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952). See generally Anthony Strahan, ‘An Overview of the Protection of Freedom of Expression under Article 10 of the European Convention on Human Rights’ (Research Paper No 6, Centre for Media, Communications and Information Technology Law, University of Melbourne, 1998).

28 T Emerson, ‘First Amendment Doctrine and the Burger Court’ (1980) 68 California Law Review 422, 423.

29 John Stuart Mill, On Liberty (1972) ch 2; see also Kent Greenawalt, ‘Free Speech Justifications’ (1989) 89 Columbia Law Review 119, 131-41.

30 Abrams v United States, 250 US 616, 630 (1919) (Holmes J, dissenting).

31 Adam Newey, ‘Freedom of Expression: Censorship in Private Hands’ in Liberty (ed),
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