Christian Porter’s defamation reform would be a catastrophic mistake

With Aaron M Lane

Attorney-General Christian Porter wants social media platforms like Twitter and Facebook to be legally liable for defamatory comments made by their users.

Right now, the common law can distinguish between the legal liability of active publishers of information (like newspapers and broadcasters) and the passive platform operators that allow users to publish information themselves. Courts decide where this distinction is drawn according the unique facts of each case.

But in a speech to the National Press Club on Wednesday, the Attorney-General declared he wants to eliminate the distinction altogether: “Online platforms should be held to essentially the same standards as other publishers.”

The Attorney-General’s proposal is fundamentally confused. Removing the distinction between digital platforms and newspapers would have a devastating effect on both those platforms and our ability to communicate with each other.

The proposal is bad on its merits. But even besides that, the conservative government needs to understand how destructive it would be to the conservative movement online.

Let’s start with the legal principles. It makes sense that newspapers and broadcasters are liable for what they publish. They actively commission and produce the content that appears on their services. They read it, edit it, arrange and curate it. They pay for it. Newspapers and broadcasters have not only an editorial voice, but complete editorial control. Indeed, it is this close supervision of what they publish that gives them strength in the marketplace of ideas.

Social media platforms do nothing of the sort. Not only do they not commission the content that appears on our newsfeeds (let alone read, factcheck, or edit that content), they don’t typically confirm that their users are even real people – not, say, bots or foreign impersonators. They merely provide a platform for us to communicate with each other. Social media has facilitated a massive, global conversation. But it has no editorial voice.

In the United States a parallel debate is going on among Republicans about whether Section 230 of the Communications Decency Act – which explicitly prevents courts from treating ‘interactive computer services’ as publishers or speakers for the purpose of legal liability – should be abolished.

Section 230 has variously been described by scholars and commentators as “the 26 words that created the internet” or the “the internet’s first amendment”. The internet law professor Jeff Kosseff writes that eliminating this provision would “turn the internet into a closed, one-way street”. Attorney-General Porter’s proposal would have the same effect.

If social media platforms have to bear legal responsibility for what their users say, they will assume editorial responsibility for it. That means editing, deleting, and blocking all content that could be even the least bit legally questionable.

Newspapers and broadcasters sometimes take calculated risks with what they print, if they believe that the information they reveal is in the public interest. But why would a technological company – a company that lacks an editorial voice or the journalistic vision – be anything but hypercautious? Why wouldn’t it delete anything and everything with even the slightest risk?

And here is where the practical politics comes in. Even if the Attorney-General’s proposal was a good idea in principle, this policy would be particularly devastating for the conservative movement that supports his government. Indeed, it is hard to imagine a legislative proposal that would more effectively, and immediately, cut down the Australian conservative movement online.

After all, what side of politics benefits most from the political diversity and openness of the modern internet? What side of politics has relied most on the internet’s ability to bypass traditional media gateways? It is difficult to imagine the conservative political surge in recent years without social media – without Facebook, Twitter, YouTube, and all those podcast platforms.

If conservatives are concerned about social media networks “censoring” conservative content on their services now, well, making them liable for everything conservatives say would supercharge that.

And why would this policy stop at defamation laws? Why wouldn’t it also apply to liabilities around, say, Section 18C of the Racial Discrimination Act? Or our sedition laws? We are looking at a future where technology companies in California (companies that many conservatives believe are stacked with culturally left employees) could be required to second-guess how the most left-wing judges in Australia might enforce this country’s draconian anti-speech restrictions.

The Coalition government should also reflect on how some of its most recent legislative programs have backfired on conservatives. The Foreign Influence Transparency Scheme, passed in 2018 in order to tackle Chinese interference in Australian politics, is now being used to target the organiser of the Australian Conservative Political Action Conference, Andrew Cooper, and even Tony Abbott.

The Attorney-General is right that defamation law needs reform. Australia’s defamation framework is heavy-handed and disproportionately favours private reputation over the public need to discuss significant issues. But removing the courts’ ability to determine liability for defamation – and instead deputising the world’s technology companies to enforce what they imagine it could be – would be a catastrophic mistake.

Submission to the Australian Competition and Consumer Commission’s Digital Platforms Inquiry

With Gus Hurwitz.

Executive summary: The analysis in the Australian Competition and Consumer Commission’s Preliminary Report for the Digital Platforms Inquiry is inadequate in several ways, most notably:

  • It mischaracterises the relationship between changes in the economics of media advertising and the rise of digital platforms such as Facebook and Google.
  • Its analysis of the dynamics of media diversity is misguided.
  • Its competition analysis assumes its results and makes unsupportable claims about the division of advertising markets.
  • It is recklessly unconcerned with the freedom of speech consequences of its recommendations.
  • It fails to recognise, and proposes to supplant, the ongoing social negotiation over data privacy.
  • It provides a poor analytic base on which to make policy recommendations, as it applies a static, rather than dynamic, approach to its analysis.

There is a real danger that if the policy recommendations outlined in the preliminary report were to be adopted, Australian consumers would be severely harmed.

Available here.

An Institutional Theory of Free Speech

Abstract: The paper provides a theory of freedom of speech based on the new institutional political economy. Through politics individuals seek to achieve collectively what they would not be able to achieve individually, forming institutions of social control. But institutions have costs which need to be discovered. Freedom of speech facilitates information discovery about the subjective costs of social institutions. Those costs are not only discovered but created through the acts of speech and expression. The paper develops this institutional approach by contrasting and complimenting against the three dominant theories of free speech: Mill’s marketplace of ideas theory, Meiklejohn’s democracy theory, and Baker’s liberty theory. The paper then shows how the institutional theory can be meaningfully applied to two common questions in freedom of speech debates: that of protest on publicly accessible property, and the relationship between freedom of speech and political correctness.

Working paper available at SSRN.

Opening statement to Commonwealth Parliamentary Joint Committee on Human Rights inquiry into Freedom of speech in Australia

With Simon Breheny

Freedom of speech is a basic Australian value. A survey, commissioned by the Institute of Public Affairs and released today, finds that 95 per cent of Australians say freedom of speech is important and 57 per cent say it is very important. If you would like copies of that poll, it is available here today. Australia’s commitment to freedom of speech makes this country one of the most diverse, prosperous and socially welcoming on the face of the planet. Laws that undermine free speech put at risk our success story as a socially inclusive and cohesive nation.

Section 18C of the Racial Discrimination Act is one of the most significant restrictions on freedom of speech in this country. Along with the rest of the provisions of part IIA of the Racial Discrimination Act, section 18C ought to be repealed outright. It is an excessive, unnecessary and counterproductive restriction on Australians’ liberties. Alternative proposals for reform would not solve the problems with the legislation that have been identified in particular by recent court cases involving section 18C. In our analysis, simply removing some of the words from the section—or worse, replacing those words with new words—would be ineffective or redundant, or would create even more uncertainty about the scope of the law.

Some participants in this debate argue that freedom of speech is protected by section 18D, but section 18D is a weak and unstable foundation for such an important right. Section 18D has been applied in just three out of more than 70 cases that have been decided by the courts since part IIA was first inserted into the Racial Discrimination Act in 1995. Parliament should not imagine that section 18D provides any certainty about the law. In the QUT case, Judge Jarrett noted a conflict in the authorities about the way in which section 18D might operate.

More fundamentally, section 18D places a burden on the respondent to prove why he or she should have the right to speak freely. This is not a requirement that a free country like Australia should be proud of. A fence is not a moral trump card. Australia is driven by other values, including individual freedom and a democracy. Section 18C harms these values. We urge this committee to recommit to the liberal democratic values that make this country great and to recommend the full repeal of part IIA of the Racial Discrimination Act. Thank you.

The Case for the Repeal of Section 18C

With Simon Breheny, Morgan Begg, Andrew Bushnell, and Sebastian Reinehr

Executive Summary: Research conducted by the Institute of Public Affairs demonstrates that section 18C of the Racial Discrimination Act 1975 must be repealed to protect freedom of speech in Australia.

Part A of this report comprehensively outlines the case for the full repeal of section 18C, and the reasons why alternative proposals for reform fail to stand up to scrutiny.

The key arguments of this report are that section 18C:

  • Is a restriction on the human right to freedom of speech and an attack on human dignity;
  • Undermines democracy
  • Is inconsistent with a peaceful and cohesive society
  • Punishes defendants through an unfair process
  • Is partially redundant
  • Undermines attempts to combat racism
  • Is unconstitutional.

The report rejects the following proposed compromises as inadequate:

  • Removing ‘offend’ and ‘insult’ from section 18C;
  • Replacing ‘offend’ and insult’ with functionally similar language;
  • Reforming the process for hearing section 18C or the Australian Human Rights Commission.

None of these reforms will address all of the problems created by section 18C.

We conclude that section 18C must be repealed in full, along with the associated provisions in Part IIA of the Racial Discrimination Act 1975.

Part B of this report outlines the history of section 18C and how it has been interpreted. This information forms the basis for the argumentation in Part A.

Available in PDF here.

Section 18C, Human Rights, and Media Reform: An Institutional Analysis of the 2011–13 Australian Free Speech Debate

With Sinclair Davidson. Published in Agenda (2016) vol. 23, no. 1, pp. 5-30.

Abstract: The paper examines two Australian freedom-of-speech controversies between 2011 and 2013 – the debate over section 18C of the Racial Discrimination Act, and the debate over the Gillard Government’s print media laws. These controversies featured rhetorical and ideological debate about the limits of free speech and the nature of human rights. The paper applies a ‘subjective political economy’ framework to these debates in order to trace the effect of increased perceived ‘disorder costs’ and ‘dictatorship costs’ of freedom of speech restrictions. The paper concludes that policy change is driven by exogenous changes in perceived institutional costs. In the case of the Gillard Government’s media laws, those costs were borne by the Gillard Government, and one would not expect print media laws to be a major political issue in the absence of a further exogenous shock. In the case of section 18C the revealed dictatorship costs of legislation, which includes the words ‘offend’ and ‘insult’, suggest the section 18C controversy will endure

Available at Agenda

When ‘Safe Spaces’ Become An Attack On Ideas

There is something deeply reactionary brewing in American higher education.

The events at Yale and the University of Missouri over the last few weeks make plain that the movement for trigger warnings in university classrooms and safe spaces on campus has turned into a dogmatic moral illiberalism.

We should pay attention to what’s happening. With a few years lag, Australia tends to enthusiastically adopt American intellectual fashions.

At the University of Missouri, anti-racism activists announced that their protest encampment on public property was a “safe space”. A student journalist, Tim Tai, tried to report on the protest.You can watch what happened. In the first half of the video, you’ll see the activists surround and attempt to intimidate Tai. In the last 10 seconds you’ll see no less than an assistant professor of mass media shout for “muscle” to remove another journalist for simply filming a public protest.

The Yale incident appears more trivial, but is more telling.

Just before Halloween, Yale’s Intercultural Affairs Committee emailed students asking them to ensure their Halloween costumes did not involve offensive “cultural appropriation and/or misrepresentation”. In response, one Yale lecturer and associate master at Yale’s Silliman College, Erika Christakis, objected that the idea that cultural appropriation was inherently wrong could stifle free speech and open debate.

Christakis’ email was apparently beyond the pale. Outrage spread across Silliman College. An opinion piece in the Yale Herald responded that “I don’t want to debate. I want to talk about my pain.” (The piece was taken down but you can read an archived version.) The New Yorkercomplains Christakis was “privileging abstract free-speech rights over the immediate emotional experiences of those who are likely to experience discrimination at the university.”

In these two events, we’ve dramatically seen how the apparently benign movement for trigger warnings in university classes and safe spaces for students has metastasised into a more general assault on the contest of controversial ideas in higher education.

The original idea behind trigger warnings was to advise students who had experienced serious and severe trauma, such as sexual assault, that they were about to hear some disturbing content. You can understand the reasoning behind the warnings, as a reasonable concession to the fact that some material, particularly in humanities subjects, can be highly confronting. Likewise the safe space – say a women’s room – might be seen as a benevolent amenity.

But trigger warnings have become absurd. Some students are requesting classic literature come with warnings. And safe spaces are morphing into places where infantilised students hide from ideas.

Now this movement has turned into a generalised attack on open discussion. The entire higher education experience is being reconceptualised as a zone of post-trauma, in which students demand faculty protect them from the expression and thoughts of others.

Using the language of psychological harm, ideas are condemned, rather than rebutted. Students can receive “pain” from the decision of another person to write an email. It is wrong to “privilege” free speech, a mere “abstract right”, over personal emotional experience.

It’s hard to think of anything more contrary to the purpose of education – which is, in the broadest sense, the systematic exposure to ideas outside personal experience – than that.

One of the arguments in Christakis’s email is worth dwelling on. Not her main points about the benefits of provocation, or the challenge of defining what costumes are offensive, but her point that, from a childhood developmental perspective, students need to learn how to reject ideas that trouble them, rather than running immediately to ban and punish.

This accords with the most well-known argument for freedom of speech – that made by John Stuart Mill in his book On Liberty. Mill argues that by hearing contrary ideas, if only to consider and discard them, we grow intellectually.

In this way, free speech and education are tightly intertwined. Limit the former and you hinder the latter. An education system where the students are excessively cushioned from the provocation of others will stifle that development. One would hope you could graduate from Yale being able to articulate why some ideas are wrong.

But what about students who have experienced genuine trauma? Even then, it’s not clear that preventing “triggering” is the best response, as Jonathan Chait noted earlier last year. Students who are genuinely unable to cope with incidental references to that trauma might not be ready for the window into the breadth of human experience that education is supposed to provide. If you are triggered by the racist language in Huckleberry Finn, you are not ready to study 19th century literature.

For those who are ready, hiding from every reminder of trauma can be counterproductive. There’s a growing area of research into what’s known as “post-traumatic growth”, the idea that some people who experience trauma can become stronger for the experience, rather than made permanently fragile.

This isn’t for everyone, of course. Talk to your doctor. But education is supposed to foster intellectual development. It is not supposed to be a safe zone of comfort and emotional protection. Campus radicals used to brag about how transgressive and provocative they were. Now, it seems, they’re more interested in policing the transgressions and provocations of others.

Free speech lost in translation

Ten years ago in September 2005, the Danish newspaper Jyllands-Posten published twelve cartoons and sparked what the Danish prime minister described as the worst crisis in Danish foreign policy since the Second World War.

In his book, The Tyranny of Silence: How One Cartoon Ignited A Global Debate on the Future of Free Speech, Danish journalist Flemming Rose compellingly outlines what happened, and what the events meant for the fight for liberty in free and unfree countries.

In 2005 Rose was the culture editor of Jyllands-Posten. He commissioned and published the cartoons in his section of the paper. And it was Rose who, more than anyone else, bore the brunt of the backlash — as well as being the most prominent defender of the decision to publish. First published in Denmark in 2010, his book was written at first to justify his actions and respond to critics. It has just been republished by the American free market think tank the Cato Institute, but developed into a longer discourse about free speech and censorship.

The purpose of the cartoons was to take a position in favour of free expression, and to editorialise against self-censorship in Denmark. The Jyllands-Posten editorial team were interested in the fact that a Danish children’s author, Kåre Bluitgen, had only been able to get an illustrator for his book on the life of Muhammad if the illustrations were done anonymously. In the middle of a Danish debate on self-censorship, this was an opportunity for the paper to take a stand: not a stunt, or an experiment, but a statement of principles.

Most strands of Islam are aniconic: that is, they oppose the depiction of images of their god and their Prophet Muhammad. Yet the question facing Jyllands-Posten was not whether Islam, as practiced in by Europe’s muslim migrant communities or the Islamic world, was aniconic. Rather it was whether the prohibition on depicting Muhammad was to be applied to non-Muslims in a non-Muslim country. Some potential illustrators for Bluitgen’s book had contacted Islamic religious and academic authorities in Denmark, who had given the project an all clear (at least one of those authorities, Rose notes, took a lead in the anti-cartoon reaction).

The twelve cartoons were published on 30 September 2005. Not all of them depicted Muhammad. At least two caricatured Kåre Bluitgen, suggesting the whole affair was a publicity stunt. Another was of a school child going by the name of ‘Mohammed’ — implicitly mocking Jyllands-Posten. But the most provocative cartoons directly connected Muhammad with terrorism. One — possibly the most iconic — was a picture of Muhammad’s face with a lit bomb in his turban. On the bomb was the Islamic creed ‘shahadah’. Others cartoonists offered more neutral portraits. One showed a cartoonist looking over his shoulder as he nervously drew the Prophet — also a comment on the Jyllands-Posten commission about free speech. All the cartoons were printed around a comment piece by Rose discussing the cartoons’ publication as a statement against self-censorship and in defence of freedom of speech.

In 2015 political backlashes are almost instantaneous. The cycle of outrage, counter-outrage and resolution can be completed within 24 hours. Ten years ago — that is, before social media drowned out the public sphere — political outrage took more time to build up.

Some newspaper sellers declined to sell the issue of Jyllands-Posten on the day. A few days after the publication, a group of Muslim leaders and activists agreed to take political and legal action against the paper. Two weeks later 3,500 Danish Muslims peacefully protested the cartoons’ publication. And there the reaction stalled. As the Danish scholar Jytte Klausen writes, ‘there was no groundswell of support for the mosque activists and imams who led the charge against the newspaper and the government in Denmark.’

It was the international events that brought the crisis to a head. As part of their political campaign against the paper, the Danish imams had petitioned the ambassadors of Muslim countries in Denmark to raise the cartoons as a diplomatic issue with the Danish government. In October 2005, a diplomatic protest was lodged by the ambassadors of eleven countries, including Turkey, Saudi Arabia, Iran and Indonesia. Their protest was acknowledged by the Danish government. But the Prime Minister Anders Fogh Rasmussen, head of a centre-right coalition, affirmed the paper’s right to free expression.

Feeling themselves unsupported, the imams decided to directly appeal to Middle Eastern governments. In December 2005, they travelled to Cairo armed with a dossier that included the cartoons.

The imam’s dossier — all 43 pages of it — was probably the most inflammatory part of the entire affair. It included not just the cartoons and translations of Jyllands-Posten’s editorials on Islam and self-censorship, but other material as well. There were abusive letters which the imams said had been sent to Muslims in Denmark. There were clippings from other papers, images completely unrelated to Denmark and Jyllands-Posten, unsubstantiated and inaccurate claims about the relationship between Denmark and its Muslim community, and a host of other material designed specifically to rile up Muslim readers. According to the secretly recorded statement of one of the Danish clerics, the dossier was intended to ‘create a climate of hate against the newspaper, God willing’.

In this, the dossier was a great success. The result of the fundamentally political decision to create a dossier that exaggerated and distorted the actions of Jyllands-Posten was devastating. Throughout February 2006 — more than four months after the publication of the cartoons — protests and riots erupted throughout the Muslim world. The targets of ire were not just symbols of Denmark but other countries whose newspapers either reprinted the cartoons or were generally presumed to be in league with the anti-Muslim sentiment contained within. The Danish embassy in Damascus was stormed. The European Union offices in Gaza were stormed. Riots occurred in Iraq, Afghanistan, and Pakistan. In Nigeria, protestors attacked and burned down local Christian churches. Some estimates suggest that globally 200 people lost their lives in the aftermath of the cartoons’ publication.

In Denmark, Rose and the cartoonist Kurt Westergaard were the subject of numerous death threats and assassination plots. One particularly close call occurred when a Somali man invaded Westergaard’s home with an axe and a knife. Westergaard hid in a panic room until Danish police shot and wounded the man, who was linked to a radical Islamist group. Other plots disrupted include attempts to attack the offices of Jyllands-Posten — a disturbing foreshadowing of the devastating Charlie Hebdo attack earlier this year.

The Danish cartoons crisis has, in light of subsequent events, taken on a deeper meaning. But in 2005 the political undercurrents of clerical aniconism seemed to be at the forefront. The Danish imams were playing Danish politics when they compiled their dossier of grievances. One cleric had been particularly incensed with Jyllands-Posten for publishing details of a sermon he had given in which he described women as the devil’s work. He saw the cartoons as an opportunity for some payback.

Likewise, the governments of Saudi Arabia and Iran had their domestic audience in mind when they lodged their Danish protests. The violence emanated primarily from within Muslim countries and not from Muslim migrants in Denmark. Local riots always have local causes. Attacks on Christians in Muslim-majority countries were as much driven by local prejudices as anything else.

In some countries — such as India and Pakistan — extremists used the existence of the cartoons as a way to destabilise domestic regimes. Other protests were sponsored by the governments of Iran and Syria to underline their own regimes’ religious piety.

One notable aspect of the Danish crisis is the relationship between Jyllands-Posten’s decision to publish the cartoons and the blame laid by critics on the Danish government. How does a feature in an independent newspaper so quickly become a question of diplomacy between national governments? We are used to political leaders sharing their views on the non-political scandals of the hour, but the Danish imams and the eleven Muslim governments were after more than just a side-comment by Prime Minister Rasmussen. They wanted a legal and political response.

The principle of a free press not subject to direct controls by the government of the day is a liberal one. Yet this liberal idea is not internationally unanimous. The countries that protested so vigorously against the cartoons do not share the ethos of the free press. Saudi Arabia, Egypt, Pakistan, Iran impose the death penalty for blasphemy. Turkey, Indonesia, Libya and Morocco also impose judicial punishment for blasphemy. Perhaps what the world saw in 2005 and 2006 was an international clash between two societies. The virtues of free expression were lost in translation.

And yet this explanation is too simple. Freedom of speech is hardly an overriding concern in the West either. One need only look at the repeated legal actions taken against Charlie Hebdo to see that. Or indeed, against Jyllands-Posten. Denmark has a blasphemy law which prohibits the public ridicule of a religious community. Denmark’s blasphemy law is a criminal law, rather than a civil one. The committee of imams complained to the police that such a violation had occurred, but the outcome of the police investigation was that the cartoon publication would be protected by exceptions covering matters of public interest.

What messages do such laws send? They suggest that religious insult is a matter for state supervision. Moreover, they imply that the bounds of public discourse should be determined by legislation, and that the proper response to offensive newspaper publications is to approach the police. No wonder the immediate appeal of the imams — and the foreign governments — was directed to the Danish government.

Hate speech and blasphemy laws undermine the liberal firewall that exists between individual expression and the views of society as a whole. Once we have established the principle that the nation can prevent offensive speech, it is unsurprising that people blame the nation for having failed to prevent offence. Rasmussen’s response to the diplomatic protest stated that: The freedom of expression has a wide scope and the Danish government has no means of influencing the press. However, Danish legislation prohibits acts or expressions of blasphemous or discriminatory nature. The offended party may bring such acts or expressions to court, and it is for the courts to decide in individual cases.

Pleading the fundamental right to freedom of expression simply looks false when blasphemy and hate speech laws are sitting on the statute books, waiting to be used. In the wake of the Charlie Hebdo massacre in January 2015, world leaders, foreign ministers, ambassadors and other dignitaries gathered in Paris to take a stand against Islamist violence. Linking arms they walked solemnly down a Parisian boulevard, looking as if they were leading the protest marches that had brought more than a million people onto the streets in Paris that day.

In fact, this was an illusion: the famed photo-op was conducted in an otherwise empty and secure side-street, far away from the crowds. More egregious, and more suggestive, was the fact that many of the leaders who attended the protest apparently in defence of freedom of expression were in charge of countries that aggressively stifled expression at home. Take, for instance, Sameh Shoukry, the foreign minister of Egypt, marching at the very time that Al Jazeera journalists, including the Australian Peter Greste, were locked up in a Cairo prison. So too was the Russian foreign minister — envoy to a country that targets journalists and whistle blowers for criticising the government.

Even Western, liberal leaders like David Cameron and Angela Merkel preside over laws that prohibit and punish hate speech. And Australia, of course, has section 18C of the Racial Discrimination Act. After the Charlie Hebdo killings Tony Abbott argued rightly that ‘from time to time people will be upset, offended, insulted, humiliated … but it is all part of a free society.’ Yet our legal system does not reflect this basic liberal principle.

Speech laws, we have been told time and time again, play as much a symbolic role as a practical one; showing who we are as a nation, the language and sentiments we will not tolerate.

Rose’s Tyranny of Silence is especially good when it contextualises the cartoon crisis in the long historical contest over individual liberty and dissent. As a journalist, he spent a great deal of time talking to Soviet dissidents who wanted the same sort of liberal freedoms enjoyed in the West. Many Muslims now want the same freedoms but are prevented from expressing their desire by a stultifying public sphere in Islamic countries and the aggressive political dominance of radical Muslim ‘spokesmen’ in the West.

As Rose points out, Western liberalism’s weak and hesitating defence of free speech is not only a poor defence of its own values, but it abandons liberals in the Muslim world who are looking for alternative political paths. There are many human rights activists in the Muslim world crying out for the liberties which we now bargain away in the mistaken name of ‘toleration’.

Defending freedom of expression is not some academic preoccupation. It is fundamental to our idea of ourselves — to our liberties, and ultimately, to our civilisation.

Is The Looming Internet Filter Justified? Not Yet

Is intellectual property “property”? Kinda. Sorta. Not really.

That question might seem a bit abstract, on par with how-many-angels-can-fit-on-the-head-of-a-pin. But it matters. Because how Parliament sees the fundamental nature of one form of intellectual property – copyright – is almost certainly going to determine whether we are subjected to a new internet filter.

A bill now before Parliament, the Copyright Amendment (Online Infringement) Bill 2015, would give courts power to require internet providers block access to foreign websites whose dominant purpose is to facilitate copyright infringement.

In practice this means that Time Warner, which owns the copyright to Game of Thrones, could go to a judge and demand Telstra or iiNet block access to the Pirate Bay.

There are lots of problems with this bill. Its language is absurdly vague and broad. What counts as “facilitating” copyright infringement? Maybe it would block sites that offer virtual private networks, perhaps – those VPNs that Malcolm Turnbull has been encouraging us all to use.

But these are legislative technicalities. More importantly, blocking websites is censorship. The bill is an internet filter, no matter how stridently the Abbott Government rejects the comparison.

Supporters of the bill argue that technicalities and censorship aside, the real issue is that property is being stolen, and the Government – whose job it is to protect property – needs to act. After all, private property is a human right as much as free speech is. (Check out Article 17 of the Universal Declaration of Human Rights.)

It is true that intellectual property shares some of the characteristics of property. Like tangible property, intellectual property can be owned. It can be traded. So it’s property in those senses.

But, unlike tangible property, the use of intellectual property is not exclusive. When one person listens to a song or watches a movie they do not prevent others from doing so. It can’t be “stolen” in anything but a metaphorical sense.

This is why the law hasn’t treated intellectual property like real property. We don’t have a moral right to perpetual ownership and unimpeded exclusive control over the songs we write or movies we produce. For instance, copyright lasts 70 years after the death of the creator. Real property has no such time limits.

The scholar Tom W. Bell says that intellectual property would be better called intellectual privilege. This privilege is conferred for a specific purpose – to provide an incentive for the creation of new works. The theory is if we don’t confer that privilege people will supply less creative work than is socially desirable.

But that privilege has costs. For instance, copyright also stops us from using our other, real property as we see fit – we can’t use our computers, printing presses or internet connections as we would like. And we can’t build on the cultural capital created by others.

Thus the Howard government’s Ergas Report into Intellectual Property and Competition Policyargued that “over-compensating rights owners is as harmful, and perhaps even more harmful, than under-compensating them”.

So will the proposed Copyright Amendment (Online Infringement) Bill 2015 inspire the creation of new works? Even if placing a block on the Pirate Bay successfully stops internet piracy (please bear with me on this fantastic hypothetical) will artists go out and create more art as a result? And would enough new work be created to compensate for the restriction on free speech?

Many economists theorise about an “optimal” level of copyright protection – a sweet spot of enforcement and rules where the benefits of copyright are maximised and the costs are minimised.

Yet it is very hard to figure out where that sweet spot is. Even impossible. And the political system isn’t looking for the optimal policy – it’s looking for the most politically palatable policy, the one where the benefits are being maximised for politicians, not consumers.

In the United States, every time Mickey Mouse threatens to fall into the public domain the Walt Disney Company lobbies hard to extend copyright term limits. Nobody really thinks that maintaining Disney’s exclusive rights over Mickey for another decade or two will lead to more creative works being produced. But these are decisions made by politicians, not blackboard economists, so the extensions get granted.

The Australian Parliament has been considering copyright enforcement changes since last year. We’ve heard a lot of pontificating about “theft” and digital access and global release dates.

But the only policy question is whether website blocking would inspire the creation of enough new content to make up for the fact that the Government is censoring the internet.

And, so far, nobody has shown that would be the case.

Submission to the Acting Independent National Security Legislation Monitor Inquiry into section 35P of the ASIO Act

With Simon Breheny

Introduction: This submission has been drafted in response to an invitation to the Institute of Public Affairs to make a submission to the Acting Independent National Security Legislation Monitor’s Inquiry into section 35P of the ASIO Act.

Our submission recommends the repeal of section 35P. We contend that there are three key problems with section 35P:

  • Individuals can engage in illegal conduct without being aware they are breaking the law
  • Restrictions on disclosure about special intelligence operations last forever
  • Any exemption will provide only limited protection for journalists but journalism is an ambiguous term, and the exemption will not protect freedom of speech

Available in PDF here.