Sublime IP Pty Ltd and Australian Communications and Media Authority
[2010] AATA 353
•13 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 353
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/2486
GENERAL DIVISION )
ReSublime IP Pty Ltd
Applicant
AndAustralian Communications and Media Authority
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Ms N Bell, Senior Member
Date 13 May 2010
PlaceSydney
DecisionThe decision under review is affirmed.
....................[sgd]....................
Mr RP Handley
Deputy President
CATCHWORDS
MEDIA AND COMMUNICATIONS - final-link deletion notice - implied constitutional freedom of political communication - whether decision effectively burdens communication - whether reasonably appropriate and adapted to serve a legitimate end - content services - link services provider - correct recipient of final link-deletion notice - decision under review affirmed
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RELEVANT ACTS
Broadcasting Services Act 1992: Schedule 7 cll 2, 3,20, 62, 121
Telecommunications Act 1997: s 7
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CITATIONS
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; (1992) 108 ALR 681; (1992) 66 ALJR 658; (1992) 44 IR 282
Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106; (1992) 108 ALR 577; (1992) 66 ALJR 695
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818; [1997] 10 Leg Rep 2; (1997) Aust Torts Reports 81-434; [1997] HCA 25
Coleman v Power (2004) 220 CLR 1; (2004) 209 ALR 182; (2004) 78 ALJR 1166; [2004] HCA 39
Australian Plaintiff Lawyers Association v Legal Services Commissioner (NSW) (2005) 224 CLR 322; (2005) 219 ALR 403; (2005) 79 ALJR 1620; [2005] HCA 44
Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd (party joined) (2004) 82 ALD 163; [2004] AATA 704
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; (2008) 103 ALD 467; (2008) 248 ALR 390; (2008) 82 ALJR 1147; (2008) 48 AAR 345; [2008] HCA 31
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OTHER AUTHORITIES
Restricted Access Systems Declaration 2007
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REASONS FOR DECISION
| 13 May 2010 | Mr RP Handley, Deputy President |
| Ms N Bell, Senior Member |
Sublime IP Pty Ltd is a company registered in NSW that operates as an Internet Service Provider (ISP) and provider of website hosting services. It hosts a website for Electronic Frontiers Australia (EFA), including an article on internet censorship in Australia. EFA is a non-profit association incorporated in South Australia whose major objective is to protect and promote the civil liberties of users and operators of computer‑based communications systems and of those affected by their use. EFA opposes the Commonwealth Government’s proposals to censor the internet. The Australian Communications and Media Authority (ACMA) is a federal government agency responsible for the regulation of broadcasting, the internet, radiocommunications and telecommunications.
On 5 May 2009, ACMA directed Sublime, by issuing a ‘link deletion notice’, to either delete or restrict access to a link on an EFA webpage to an ‘Abortion TV’ webpage containing pictures of aborted foetuses. Sublime seeks a review of ACMA’s decision to issue that notice.
The EFA webpage in question, headed “Net censorship already having a chilling effect”, refers to “the current net censorship regime” in the context of proposals by the Government for the introduction of an internet filter. The article refers to the Classification Board’s classification regime and the power of ACMA to restrict access to material that has been refused a classification or rated R 18+ or X 18+. The article refers to an ‘interim link-deletion notice’ issued to another ISP pending a decision of the Classification Board on an application for classification of the Abortion TV webpage, and provided a hypertext link to the Abortion TV webpage (which the reader can click on) as follows:
The page … which can be found here (warning: graphic content) is itself controversial, as it is from an anti-abortion website.
The Abortion TV webpage was the subject of complaints to ACMA on 5 January 2009 and 19 February 2009, which had been investigated by ACMA and led to its applying to the Classification Board for classification of the Abortion TV webpage. On 18 March 2009, ACMA received a complaint about the EFA webpage and its link to the Abortion TV webpage. On 20 March 2009, ACMA received notification from the Classification Board of its having classified the Abortion TV webpage as R 18+.
An ACMA investigator continued to be able to access the content on the Abortion TV webpage by using the hypertext link on the EFA webpage and found there was no restricted access system in place limiting access to those aged 18 and over, and that access to what is defined as “prohibited content” was freely available. ACMA identified Sublime as the host server of the EFA webpage providing the link to the Abortion TV webpage and, on 5 May 2009, issued a notice to Sublime (a final link-deletion notice) directing it to take such steps as are necessary to ensure that either it ceases to provide a link to the Abortion TV webpage or that access to the webpage is subject to a restricted access system.
Issues
The relevant facts are not in dispute. The issues for the Tribunal to consider are, first, whether the decision to issue the final link-deletion notice is contrary to the implied freedom of political communication, and second if it does not offend the implied freedom, whether the notice should have been issued to Sublime. The latter issue turns on whether Sublime is a ‘links service provider’ within the meaning of Schedule 7 of the Broadcasting Services Act 1992 (Cth) (the Act), and if so, whether the decision to give the notice to Sublime was the correct or preferable decision.
Is ACMA’s Decision contrary to the Implied Freedom of Political Communication?
Schedule 7 of the Act provides for a system of regulation of certain electronic content services and empowers ACMA to issue a range of notices to deal with prohibited, or potentially prohibited content. A significant limitation on the operation of Schedule 7 appears in cl 121, which states:
(1)This Schedule does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied political communication.
An implied constitutional freedom of political communication was recognised by the High Court in its decisions in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106. A later Full Bench decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 (Lange), at 567, set out the test for determining whether a law infringes the freedom of communication:
When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law 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 procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively “the system of government prescribed by the Constitution”). If the first question is answered “yes” and the second is answered “no”, the law is invalid.
In the High Court decision in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 (Coleman), at 49, McHugh J (with whom three of the other five judges in the majority agreed) said, referring to the test set out in Lange:
In all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence. And a law will not impermissibly burden those communications unless its object and the manner of achieving it is incompatible with the maintenance of the system of representative and responsible government established by the Constitution.
Referring to the second limb identified in Lange, he commented, at 50:
In the two-limb test formulated in Lange, the adjectival phrase “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” does not merely qualify the expression “legitimate end”. It qualifies the compound conception of the fulfilment of such an end, and the emphasis of the qualification is on the term “fulfilment” rather than “end”. That is to say, it is the manner of achieving the end as much as the end itself that must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
In this case, the parties agree, and we concur, that, as the High Court stated in Lange, at 560, the constitutional protection afforded by the implied freedom extends to the exercise of both legislative and executive power. The validity of the relevant legislation is not in issue but rather whether the implied freedom of political expression invalidates the decision made by ACMA. Thus, the Tribunal should consider (1) whether the decision under review effectively burdens communication about government or political matters, and, if so, (2) whether it is nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
In the Tribunal’s view, imposing restrictions on access to the internet, in some instances, could effectively burden communication about government or political matters. It is common knowledge that the law concerning the practice of abortion is a sensitive political matter. It is possible that opponents of the practice might wish to use material including pictures or images of aborted foetuses as a means of educating (and shocking) members of the public about the results of the practice. Thus, an executive decision that restricts access to such material could effectively burden communication about government or political matters.
However, in this case, the subject of the relevant EFA webpage was internet censorship and the only constraint imposed by the final link-deletion notice was in respect of a hypertext link to the Abortion TV webpage, which had been the subject of complaints to ACMA. The remaining text on the EFA webpage in which the author criticised “the current net censorship regime” and also the Government’s proposal for “mandatory filtering conducted by ISPs against all Australian internet users”, was otherwise unaffected. Thus, any constraint on communications was, in our view, minor and left the words penned by the author of the article untouched. The notice was not directed to preventing discussion of internet censorship or related issues of public policy (see Australian Plaintiff Lawyers Association v Legal Services Commissioner (2005) 224 CLR 322; [2005] HCA 44, at 351, per Gleeson CJ and Heydon J) and it did not effectively do so.
The notice required the recipient to take such steps as are necessary to ensure that either it ceased to provide a link to the Abortion TV webpage or that access to the webpage be subject to a restricted access system, a system more particularly described in the Restricted Access Systems Declaration 2007 (the Declaration) made by ACMA on 20 December 2007. It was unfortunate that the email to Sublime dated 5 May 2009 attaching the final link-deletion notice actually stated that the notice required the link to be deleted, which was incorrect. However, the email directed Sublime to the notice itself and to the action therein required to be taken within the specified time frame. We do not attach any great significance to the error in the email.
The Classification Board classified the Abortion TV webpage as R 18+, a classification that relevantly applies, according to the Guidelines for Classification of Films and Computer Games, to “material of high impact which requires an adult perspective”. In the case of R 18+ content, amongst other things, the restricted access system requirements include that a person seeking access to such content must apply for access, and that there must be verification that the person is at least 18 years of age. A person seeking access to such content must also be provided with a warning about the nature of R 18+ content and safety information about how a parent or guardian may control access to R 18+ content by persons under 18 years of age.
In this way, ACMA’s requirement that access to the Abortion TV webpage be subject to a restricted access system is consistent with the Classification Board’s classification of the Abortion TV webpage as R 18+. The Tribunal notes that the right to vote in Australia is also limited to those who are aged 18 and over, so that those who are entitled to vote will be able to access the Abortion TV webpage if access to the webpage is the subject to a restricted access system. Thus, the only constraint is in respect of minors, albeit that adults will have to comply with the verification and access requirements of a restricted access system, which may cause some inconvenience. We do not accept that the verification and access requirements are not reasonably appropriate and adapted to serve a legitimate end, namely the protection of minors, and we note, as Mr Daley pointed out, that cl 17 of the Declaration has built-in safeguards, for example, that records must be kept “in accordance with the National Privacy Principles contained in the Privacy Act 1998” (cl 17(2)(a)).
Mr Clapperton contended Sublime lacked the capacity to implement a restricted access system for access to the Abortion TV webpage, especially in view of the fact that Sublime was required to comply with the final link-deletion notice not later than 6pm on the next business day or face the possibility of significant penalties for non-compliance (currently up to $11,000 in respect of each day during which the contravention continues). Sublime, he submitted, lacked both the necessary personnel, skills and experience to assume the decision-making and record-keeping obligations on behalf of EFA, as well as the technical capacity to modify content on the EFA website which is password protected. We note that no evidence was provided to substantiate these contentions. Mr Clapperton also contended that the legislation is “practically ineffective”. In this case, the Abortion TV webpage “is easily discoverable using common search engines and linked to from [sic] many websites hosted outside of Australia”; more generally, because the legislation operates on a complaints system.
In our view, these matters should not affect our decision. The Tribunal is concerned not with the practicality or effectiveness of any constraints but rather with their validity and legitimate application. Pursuant to cl 62(7) of Schedule 7, the final link-deletion notice required Sublime to “take such steps as are necessary to ensure” that a type B remedial situation exists in relation to the content (explained below). Thus, the required action contemplated that the implementation of the restricted access system or the deletion of the link could be undertaken by some other person, as in fact occurred in this case, with Sublime procuring EFA to delete the link.
We conclude that the constraint imposed by the decision in this case was minor – being only in respect of the hypertext link, leaving the remaining text unaffected – and did not effectively burden the communication. In any event, we conclude that the constraint was reasonably appropriate and adapted to serve a legitimate end – the protection of minors – in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Thus, the circumstances of this case do not bring cl 121 of Schedule 7 into operation.
Should the Notice have been issued to Sublime?
Clause 20 of Schedule 7 sets out the definition of ‘prohibited content’ for the purposes of the Schedule. This provides relevantly:
20Prohibited content
Content other than eligible electronic publications
(1) For the purposes of this Schedule, content (other than content that consists of an eligible electronic publication) is prohibited content if:
(a) the content has been classified RC or X 18+ by the Classification Board; or
(b) both:
(i) the content has been classified R 18+ by the Classification Board; and
(ii) access to the content is not subject to a restricted access system; or
(c) …
Clause 62 of Schedule 7 sets out the circumstances in which relevant action can be taken by ACMA in relation to links services:
62 Action to be taken in relation to links services
Prohibited content
(1)If, in the course of an investigation under Division 2, the ACMA is satisfied that:
(a) end-users in Australia can access content using a link provided by a links service; and
(b) the content is prohibited content; and
(c) the links service has an Australian connection;
the ACMA must:
(d) if:
(i)the content does not consist of an eligible electronic publication; and
(ii)the content has been classified RC or X 18+ by the Classification Board;
give the links service provider a written notice (a final link-deletion notice) directing the links service provider to take such steps as are necessary to ensure that a type A remedial situation exists in relation to the content; or
(e) if:
(i)the content does not consist of an eligible electronic publication; and
(ii)the content has been classified R 18+ or MA 15+ by the Classification Board;
give the links service provider a written notice (a final link-deletion notice) directing the links service provider to take such steps as are necessary to ensure that a type B remedial situation exists in relation to the content; or
(f) …
The relevant subcl (1) paragraphs in the present case are (a), (b), (c) and (e).
A ‘type B remedial situation’ referred to in (e) is described in cl 62(7) as follows:
(7)For the purposes of the application of this clause to a links service provider, a type B remedial situation exists in relation to particular content if:
(a)the provider ceases to provide a link to the content using the links service concerned; or
(b)the content is not provided by a content service provided to the public (whether on payment of a fee or otherwise); or
(c)access to the content is subject to a restricted access system.
There is no dispute that the Abortion TV webpage falls within the definition of ‘prohibited content’ in cl 20 because it has been classified by the Classification Board as R 18+, thereby satisfying subcl 20(1)(b). With regard to subcl (1)(a), there is also no dispute that end-users could access this content by clicking on the hypertext link on the EFA webpage and that this link was provided by a ‘links service’ which is defined in cl 2 as meaning a content service providing one or more links to content to the public.
‘Content’ is defined in cl 2 as including text, data, speech, music or other sounds, visual images whether in any form or combination. A ‘content service’ is defined in cl 2 as including a service that allows end-users to access content using a carriage service. ‘Service’ is defined in cl 2 as including a website or distinct part of a website. ‘Carriage service’ is defined in s 7 of the Telecommunications Act 1997 (Cth) as meaning “a service for carrying communications by means of guided and/or unguided electromagnetic energy”. Guided electromagnetic energy is used for sending communications over Telstra copper wires. Unguided electromagnetic energy is used for mobile telecommunications.
With regard to subcl (1)(c), there is no dispute that the links service has an ‘Australian connection’, defined in cl 3 as including where any of the content provided by the content service is hosted in Australia. Subclause (1)(e) rather than subcl (1)(d) applies in this case because the content has been classified as R 18+. Subclause (1)(e) empowers ACMA to give a final link-deletion notice to the ‘links service provider’.
At issue is whether Sublime is a links service provider. ‘Links service provider’ is defined in cl 2 as a person who provides a links service. This raises two questions: first, what is the relevant links service and, second, who provides that links service?
As stated above, a ‘links service’ is a content service providing one or more links to content to the public. The term ‘link’ is not defined in Schedule 7, although a note to cl 3(1) states, “A link is an example of content”. There is no dispute that the hypertext link appearing on the EFA webpage linking users to the Abortion TV webpage was a link for the purposes of Schedule 7. Also, as stated above, a ‘content service’ includes a service that allows end-users to access content using a carriage service. There is no dispute that in this case access to content occurs by way of a carriage service. Thus, the Tribunal is satisfied that the relevant links service in this case was the EFA webpage.
The second question is whether the EFA webpage – the links service – was provided by Sublime? Mr Daley, for ACMA, referred the Tribunal to the Macquarie Dictionary definition of ‘provide’, meaning ‘furnish or supply’. He contended that by hosting EFA’s webpage, Sublime furnished a content service to the public allowing end-users to access content on the Abortion TV webpage. Thus, Sublime was a ‘links service provider’ and the proper recipient of a final link-deletion notice under cl 62(1)(e).
Mr Clapperton, for Sublime, contended that Sublime was a ‘hosting service provider’, being, as defined in cl 2, a person who provides a ‘hosting service’. In accordance with the definition in cl 4, a ‘hosting service’ is provided where a person hosts stored content and that person or another person provides a content service. In this case, he submitted, EFA provided the contents service and was the links service provider. The mere fact that EFA’s content was sitting on Sublime’s hardware does not make Sublime a content provider. Mr Clapperton contended that EFA was the appropriate recipient of the final link-deletion notice.
Mr Clapperton submitted that even if Sublime was a links service provider, the correct or preferable decision is that the final link-deletion notice should have been given to EFA: Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd (2004) 82 ALD 163, at 194 (but see also Shi v Migration Agents Registration Authority (2008) 235 CLR 286, especially Kirby J at [35] to [37]). EFA was the author and publisher of the relevant content, whereas Sublime was the uninvolved third party which merely provided technical services to EFA. EFA, Mr Clapperton submitted, was also better placed to remove the hypertext link, which was what happened in this case. Moreover, in other situations where a notice is served on a purported links service provider which is in fact a hosting service provider, that hosting service provider may have little interest in making an application to the Tribunal for a review. This would mean, in effect, that the content provider might have no means of seeking a review of the decision by ACMA to give a final link-deletion notice. Finally, Mr Clapperton noted EFA was in a better position to effect a restricted access system.
Mr Daley noted that EFA had been invited to participate in these proceedings but had declined to do so. (The Tribunal received a letter from EFA dated 19 April 2010 stating that it did not wish to be joined in these proceedings, that it supported Sublime’s contentions, and “willingly accepts that it is the most appropriate entity to receive a Final Link Deletion Notice in regards to content on its website”.) Mr Daley said whether or not Sublime could have put in place a restricted access system, they were still in a position to comply with the notice by getting EFA to take the necessary action. The notice was given and acted on, and it would be of no utility to set aside the decision under review and remit the matter to ACMA with a direction that the required notice be given to EFA.
In our view, Sublime is a ‘links service provider’ within the meaning of the definition in cl 2 because it provides a content service in that it allows end-users to access content. We note that the definition of content service includes both paragraph “(a) service that delivers content to persons having equipment appropriate for receiving that content …” and “(b) a service that allows end-users to access content …” [our emphasis]. In our view, the clear words of the definition include a situation where, as here, the service provided is merely that of providing access to the content. In Sublime’s case, access was provided by its hosting EFA’s website. The fact that Sublime may, for other purposes, also be a hosting service provider to which Division 3 of Schedule 7 applies, is immaterial for the application of Division 5 of Schedule 7 if the relevant definitions and requirements of Division 5 are satisfied. We note that cl 62(1) states that ACMA “must” give the links service provider a notice if the matters specified in subcl (1)(a), (b), (c) and (e) are satisfied.
However, we note that while Sublime was a links service provider in this case, so, apparently, was EFA. As the provider of content and the entity most directly affected by the giving of the notice, EFA was the entity likely to be most interested in exercising the right to seek a review of ACMA’s decision to give the notice. In our view, it was open to ACMA to give a notice to either Sublime or EFA, both being located in Australia, and it appears both could have taken the necessary steps to comply with the final link-deletion notice. We note that in other matters there may be circumstances where a content provider such as EFA is not located in Australia, in which instance the only course open to ACMA would be to give a notice to a links service provider such as Sublime that is located in Australia.
While we acknowledge that there is some substance to Mr Clapperton’s submissions on this issue, we do not consider it appropriate to set aside the decision on the basis that it would have been preferable for the notice to have been given to EFA. Here it was for ACMA to determine how best to achieve its object of restricting access to prohibited content in accordance with the R 18+ classification. As Mr Daley pointed out, our setting aside the decision and remitting the matter to ACMA with a direction that Sublime was not the appropriate recipient of the final link-deletion notice would not be of any utility since the hypertext link has already been deleted.
Decision
In conclusion, the Tribunal finds that Sublime is a person to which a final link-deletion notice could be given and that the decision to give such a notice to Sublime was not contrary to the implied freedom of political communication. The decision under review is therefore affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President, and Ms N Bell, Senior Member.
Signed: ........[sgd].................................................................
Associate
Dates of Hearing: 20 and 21 April 2010
Date of Decision: 13 May 2010
Applicant representative: Mr D Clapperton
Respondent representative: Mr S Daley, AGS
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