Parts of Wikipedia blacklisted in Australia

The Australian Communications and Media Authority (ACMA) has added whistleblower website Wikileaks to its secret website blacklist. This comes after Wikileaks published a recent version of the blacklist, which includes Wikipedia pages, in addition to various religious websites and the site of a Queensland dentist.

In February an anti-censorship activist submitted a Wikileaks page (containing a copy of Denmark's secret blacklist!) to ACMA's online complaints facility, as a test of ACMA's guidelines. ACMA blacklisted that page, satisfied that it was "prohibited content" or "potential prohibited content" under the relevant legislation. However Wikileaks then published details of the report, including the correspondence, and then published a leaked copy of the ACMA blacklist from last August. Following this, ACMA blacklisted the entire Wikileaks site.

As of the time of writing, it does not seem possible to access Wikileaks from Australia, so I do not know what is on the leaked blacklist. But media reports indicate that, in addition to the intended targets of child porn sites, there is a substantial minority of other sites blacklisted, including some Wikipedia pages, YouTube videos, and online gambling sites, as well as a few bizarre examples in a tuckshop management company and an animal carer group.

The responsible minister, Senator Stephen Conroy, has denied that Wikileaks' list is the real thing, and one of the ISPs involved in the mandatory internet filtering trial has backed that up, saying that it is not the same as the list supplied to them recently.

Yet whether Wikileaks' list is accurate or not, the attention now being paid to the practices of ACMA in relation to the blacklist has at least exposed the risk to educational sites like Wikipedia posed by similar censorship systems. The ACMA blacklisting scheme is designed to dovetail with Australia's existing content classification system (for films, television etc) by defining "prohibited content" to mean content classified as RC (refused classification) or X 18+ by the Classification Board (and also R 18+ content to which unrestricted access is allowed, and under certain circumstances, M 15+ content).

This system has been criticised in a number of ways, not least because Internet content is subject to the film and television classification rules, rather than the rules for publications (with the result that, for example, a printed newspaper and a newspaper website showing the same material will be treated differently, depending on which version is classified first). Nevertheless, the Classification Board has extensive experience in content classification, and, as it is a singular organisation whose decisions are subject to review, is at least broadly consistent in its application of the guidelines.

The blacklisting scheme goes further, however, and allows ACMA to blacklist not only content which has actually been classified, but also "potential prohibited content", that is, unclassified content which it believes would ultimately be prohibited if it were classified. In practice, this means that ACMA bureaucrats - whose decisions are not subject to the same process of review, and are not even guaranteed to be made in the same way and applying the same process as the Classification Board - can blacklist sites if they think there is a "substantial likelihood" that the content would be prohibited.

Under the National Classification Code (PDF), classification not only depends on what the content depicts, but on the manner in which it is depicted. Relevantly for Wikipedia, educational materials covering subject matter like sexuality will likely be treated differently than other genres of material depicting the same subjects. With this parallel ACMA scheme, there is no guarantee of consistency, no guarantee the code will be correctly applied and no prospect of review. Thus, the public's access to legitimate educational content, such as Wikipedia articles, is subject to the whims of ACMA bureaucrats.

A related problem is that the ACMA blacklist is the basis of the aforementioned proposed mandatory internet filtering scheme in Australia, which aims to filter the Internet at the ISP level. Depending on the way such a scheme (if it is actually instituted, which seems unlikely at this time) is actually implemented by ISPs, we may end up with a situation in which access to Wikipedia is widely blocked, as happened recently in the UK.

Maryland court rejects identification subpoena

Zebulon Brodie, a franchisee for Dunkin' Donuts, sued Independent Newspapers (operator of the Newszap.com classifieds and forums website) and three pseudonymous members of the site for defamation and conspiracy to defame, after the three participated in a forum thread in which the cleanliness of the store was critiqued.

The liability of Independent Newspapers (IN) was fairly easily resolved: the trial judge found that the company, as the provider of an "interactive computer service", could not be treated as the publisher or speaker of the forum postings due to s 230 of the Communications Decency Act, and as such could not be liable in defamation for the postings' contents. This provision has protected a range of service providers from liability for defamation and similar actions, including the Wikimedia Foundation itself.

However, the liability of the three pseudonymous users is a different story, and it was this issue that has been contentious in the case. The Newszap website required users to register before using the forums, and Brodie sought, by way of a subpoena, to compel IN to identify a total of five pseudonymous users who had participated in the forum thread. In turn, IN sought motions to quash the subpoena, and for a protective order to be issued; however, the trial judge rejected those motions, and ordered IN to identify the users.

The Maryland Court of Appeals overturned that order in a decision published this week (PDF). The basis for the decision was that three of the users did not make any comments that were actionable in defamation, and the other two, though they did make arguable actionable remarks, were not actually named as defendants in Brodie's original complaint (and by the time the case had proceeded to that point, any action against the two was barred by limitations provisions).

Though the case was thus resolved on an essentially procedural point, the Court of Appeals nevertheless went on to discuss the underlying question of when anonymous or pseudonymous users in such sitautions should be identified, and offered some guidance to lower courts.

All seven judges agreed on four steps that should be undertaken by courts considering defamation actions involving anonymous or pseudonymous defendants, where disclosure is sought:

1. require the plaintiff to make efforts to notify those defendants of any subpoena or application to disclose their identity - in the context of Internet forums, by posting a message there;
   
2. allow those defendants reasonable opportunity to oppose the application;
   
3. require the plaintiff to clearly identify the speech said to be actionable in defamation; and
   
4. determine whether the plaintiff has advanced a prima facie case against those defendants.
   

However, four judges comprising the majority went further, and added a fifth step that courts should undertake: if all the other requirements were satisfied, the court should weigh the strength of the prima facie case against the anonymous or pseudonymous defendants' First Amendment rights.

First Amendment jurisprudence concerning free speech has tended to recognise that an author's decision whether or not to disclose their identity may be protected as much as the content of their speech itself. In practice, this has translated into, for example, the Supreme Court of the United States striking down a local council ordinance forcing anyone soliciting door-to-door (in that case, Jehovah's Witnesses) from identifying themselves and obtaining a permit before doing so. While anonymity, like any other aspect of the right to free speech, does not protect speech which is defamatory, the majority were keen to point out that anonymous or pseudonymous posters have a right "not to be subject to frivolous suits for defamation brought solely to unmask their identity." In their view, the additional balancing test, beyond the prima facie requirement, was necessary to give adequate protection to this right. A lower standard of protection, in their view, "would inhibit the use of the Internet as a marketplace of ideas, where boundaries for participation in public discourse melt away."

The three judges who dissented as to the need for the balancing test were of the view that the prima facie requirement provided sufficient protection of First Amendment rights, given that they are already taken account of in the ordinary law of defamation. Judge Adkins, writing for the minority, cautioned that "the majority decision invites the lower courts to apply, on an ad hoc basis, a 'superlaw' of Internet defamation that can trump the well established defamation law."

The case is an interesting example of the way in which computer services providers who are protected by section 230 nevertheless have a significant role to play in legal processes that reach past them to target users of their services. The court also placed emphasis on ensuring that anonymous or pseudonymous users have an opportunity to participate in legal processes before their identity is disclosed. As a consequence, providers are not merely passive targets for subpoenas, nor must they be zealous defenders of all users of their services; rather, they have an important mediative role.