New Internet Censorship Laws

By Robbie Swan

It’s been 11 years since John Howard’s government created the Online Content Services Act that provided fines of $250,000 and 10 years in the slammer for Australian Internet Service Providers (ISP) who published adult content. Those fines and jail sentences also applied to anyone with ‘an Australian connection’ who could reasonably have been shown to have assisted in the publishing of adult material on an Australian ISP site or even an overseas hosted site. This meant someone who opened a bank account that either received or paid money to someone who published the adult content, someone who made calls to a publisher about certain content or even if they were related to that person in a way that suggested they could have been in cahoots. It was draconian media legislation of the like that we have never seen before and threatened the Australian adult goods and services industry in a way that had never been thought of.  

It’s been 10 years since Eros lobbied Howard’s Communication’s Minister, Helen Coonan, to drop the ‘Australian connection’ part of the legislation, so that the industry could at least do business on sites hosted offshore without being caught by these draconian laws. (See Fiona Patten’s upcoming memoir for an hilarious account of how this was done).  While it is still illegal for Australian ISPs to host adult content, it’s now legal to use an overseas server to carry adult material. This has meant that the Australian adult industry has had a decade of doing business over the internet without any problems.

But no one should be feeling complacent at the moment. Over the last few months there have been some extremely worrying developments in the US and the UK that are already causing Australian private citizens and adult companies to change the way they do business and in some cases to abandon the internet as a platform altogether.

In the UK, the 2017 Digital Economy Act has legislated age-verification technology for all adult sites, under threat of A$500,000 fine or 5% of ‘qualifying’ turnover. This was pushed on the government by groups who cited statistics that showed that more than half the children and teenagers who saw porn on the internet had ‘stumbled on it’. The industry is taking the threats seriously with MindGeek, the company behind sites like Pornhub, saying they have developed a ground up new system for verifying age online. The BBFC, (our equivalent of the Classification Board) has been tasked with regulating the system. Adult material that has been classified R18 (similar to our X classification) will be allowed but unclassified adult material that has been, “produced solely or principally for the purposes of sexual arousal” may be in trouble.

In March 2018, a Rhode Island (US) state Senator, Frank Ciccone, proposed a Bill that would have would have required mandatory porn filters on all personal computers and mobile devices and charged users $20 to unblock online porn. The Bill had been taken up by 19 states before they realised that they had been conned by it’s chief proponent but it was still astonishing to see that legislators in 18 states were quite happy with the notion of effectively placing a tax or a fine (whichever way you want to read it) on people who accessed porn online.

In another worrying development, the huge US supermarket chain, Walmart, recently caved in to the religious right and banned the sale of Cosmopolitan magazine. The National Centre for Sexual Exploitation (previously known as Morality in Media) claimed that their win on the issue would help to stop, “Cosmo’s hypersexualized and degrading article titles that regularly promote pornography, sexting, BDSM, group sex, anal sex, and more, all while marketing toward young teens with Disney star cover models”.

Cosmo has no nudity or explicit content. It’s all about words and ideas. Never mind the fact that most teenage US girls now have good working knowledge of sexual reproduction, contraception, negotiating sex with boys and safe sex techniques, much of which comes from magazines like Cosmo. Walmart went with the religious right who would rather young girls grow up ignorant of sexual matters from where they can be more easily manipulated to the patriarchal ‘barefoot and pregnant’ views of life. As Eros’ sister group in the US, The Free Speech Coalition, put it – “When we see religious conservatives say they’re coming for porn, what they’re really coming for is women’s sexuality”.

However the most ominous legislation has just been passed in the US under the weird title of the SESTA-FOSTA laws. FOSTA was an acronym for Allow States and Victims to Fight Online Sex Trafficking Act and was a Bill that originated in the House of Representatives. SESTA (the Stop Enabling Sex Traffickers Act) was a similar Bill that originated in the Senate in August last year and was originally an attempt to nail a large US site called backpage.com that was engaging in some pretty nasty sex work arrangements and probably some trafficking. Most legal minds in the US believed that there was already enough laws to prosecute them without the addition of new laws. But what has ended up is that both bills have been joined now into one super brothel-busting bill that goes far beyond sex work and could just be the tip of the iceberg in a raft of new laws that target specific aspects of the internet that particular groups don’t like. Particular groups who happen to have the ear of particular politicians who will sponsor these new laws.

The problem with these new laws is that they undo a crucial section (230) of the Communications Decency Act 1996, that protects internet platforms and carriage service providers against legal liability for what content providers might do when using their services. Its like Telstra is not legally liable for the content of the phone calls that take place on their network. How could they be? They would spend all day chasing complaints and not much else if they had to check up on each call that was made.

The problem with SESTA-FOSTA is that the new laws are written in such a way as to cover all aspects of the internet and not just specifically advertisements for sex work or sex trafficking. Email, social media, dating apps, private chat forums and even direct messaging all appear to be targeted. Even Wikipedia which is a user-generated forum will be targeted. With lengthy jail terms and astronomical fines set as penalties, the end result of this will be some serious censorship of adult advertising and content. Facebook and Google are not going to run the risk of hosting content likely to get them into trouble. When the Sex Party tried to run ads on Google and Facebook at the last federal election, it took days of correspondence to convince those companies and their simple-minded technicians that the Sex Party was not a piss up in a brothel but was a legitimate political entity. If we hadn’t changed the name to the Reason Party, we would now find it impossible to advertise on pretty much any online forum or platform hosted out of the US.

And if you think it can’t happen here, think again. Apart from Eros, there are no free speech organisations willing to take a stand and speak out on behalf of the adult industry. Electronic Frontiers Association, at time of writing, were not taking up the cudgel and neither were the Civil Liberties Councils. Eros has lobbied successfully in this area before but needs all adult traders who use the internet to promote their products and services to get behind a new push to keep this nasty legislation out of Australia. And it will be tried here without a doubt. The only alternative if things get tough here is the ‘dark web’ and who really wants to go down that rabbit hole while continuing to maintain that they run  legitimate business?

Time to put your money where your mouth is folks and enable Eros to get to work on this before Fred Nile sees an opportunity.