Balancing eSafety and Online Censorship, 2024
By Denis Hay
Description:
Explore how Australia’s eSafety laws impact free speech and how currency sovereignty can help balance regulation and rights.
Introduction to eSafety in Australia
In Australia, the enhancement of eSafety laws aims to protect citizens from various online harms, such as cyberbullying and digital abuse. While these laws are pivotal for ensuring a safer online environment, they also prompt critical discussions about their potential impact on free speech and the democratic use of social media for political expression and change.
This article explores the complex interplay between ensuring online safety and protecting individual freedoms. It examines how these laws could potentially be misused, scrutinizes the mechanisms that can safeguard against such misuse, and discusses the crucial role of public and judicial oversight in keeping the balance between security and free speech.
By delving into these aspects, the article sheds light on the broader implications of Australia’s eSafety regulations and how they intersect with the country’s unique stance on currency sovereignty to shape public policy and personal freedoms.
The Importance of Free Speech in Australia
Free speech is a foundational element of democratic societies, enabling the free exchange of ideas and helping informed public debate. In Australia, this right is underpinned by various statutes and common law, though it isn’t explicitly protected by the Australian Constitution. However, the digital age presents new challenges to free speech, especially as governments enact laws aiming to secure other societal needs, such as safety and security.
Historical Overreach through Legislation
Australia’s legislative landscape includes several examples where laws, particularly those related to anti-terrorism, have been criticized for potentially overreaching and infringing on free speech. These instances highlight the delicate balance between ensuring national security and preserving individual freedoms.
1. Anti-Terror Laws and Free Speech:
In the early 2000s, Australia introduced a series of stringent anti-terrorism laws in response to global terror threats. These laws included provisions that made it a criminal offense to support or promote terrorism. Critics argued that the broad and vague definitions within these laws could potentially stifle legitimate political discussion or academic analysis of terrorism-related topics.
For example, in 2014, the government proposed a law that would make it an offense to advocate for terrorism, even if there was no direct incitement to violence. This raised concerns among civil liberties groups and legal experts about the potential suppression of free speech, particularly in academic, journalistic, and public discourse settings.
2. Sedition Laws:
Another contentious part of Australia’s anti-terror laws are the sedition provisions, which have been critiqued for their potential misuse against political dissent. These laws make it illegal to urge violence against groups or the government, which is to protect national security. However, there have been concerns that such provisions could be used to criminalize protest and dissent. While there have been no high-profile cases of sedition charges in recent years, the existence of these laws poses a latent threat to free speech.
3. ASIO Questioning and Detention Regime:
The Australian Security Intelligence Organisation (ASIO) has powers under national security legislation to detain and question individuals without charge. Critics, including legal practitioners and human rights organizations, have pointed out that these powers could be used to intimidate or silence political activists or those critical of government policies, even though the direct misuse in such contexts has been less documented.
These examples underscore the importance of vigilance and advocacy in protecting free speech in Australia.
Key Innovations Driving eSafety Legislation
Australia’s approach to eSafety has evolved significantly over the years, adapting to modern technologies and the increasing prevalence of online interaction. Recent legislation has focused on enhancing the powers of the eSafety Commissioner and imposing stricter regulations on digital platforms to swiftly remove harmful content. While these steps are designed to protect users, especially children and vulnerable groups, they also spark concerns about overreach.
How Readers Can Support Genuine Free Speech
Supporting genuine free speech while advocating for effective eSafety measures requires public involvement and vigilance:
– Stay Informed: Understand the specifics of eSafety legislation and its implications for free speech.
– Participate in Public Consultations: Engage in discussions and provide feedback on proposed regulations.
– Advocate for Clear Laws: Support efforts to define harmful content more explicitly to prevent over-censorship.
The Role of Technology in Online Free Speech
Technology companies play a pivotal role in shaping the landscape of online free speech. Their platforms are the arenas in which much of today’s discourse occurs, and their policies can significantly influence what is considered acceptable speech. Balancing user safety with freedom of expression requires transparent content moderation practices and a commitment to protecting users’ rights.
The potential for misuse of Australia’s new eSafety laws by the government is a concern that resonates with critics and civil liberties groups. These laws, intended to improve online safety and combat cyberbullying and other forms of online harassment, do come with broad powers that, if not carefully watched and transparently applied, could be used in ways that may inadvertently or deliberately restrict free speech. Here’s how misuse might manifest:
1. Vague Definitions of Harmful Content
The eSafety laws often include vague and broad definitions of what constitutes harmful or inappropriate content. This can lead to subjective interpretations and inconsistent enforcement, potentially allowing government agencies or officials to suppress content that is critical of government policies or actions under the guise of supporting online safety.
2. Overreach in Content Removal
The laws grant the eSafety Commissioner the authority to order the removal of content considered harmful. While this is primarily intended to protect individuals from online abuse, it could also be used to remove content that is politically sensitive or embarrassing to the government but not genuinely harmful. This overreach could stifle political debate and limit the public’s ability to hold the government accountable.
3. Impact on Whistleblowers and Journalists
Journalists and whistleblowers rely on the freedom of the internet to give information about government wrongdoing and societal issues. Overzealous application of eSafety laws could lead to the removal of such content, or even discourage the sharing of it altogether, out of fear of reprisal or legal consequences. This would have a chilling effect on investigative journalism and freedom of the press.
4. Surveillance and Privacy Concerns
The enforcement mechanisms within the eSafety laws might require increased surveillance and monitoring of online activities. This could lead to invasions of privacy and unwarranted governmental intrusion into individuals’ digital lives, under the guise of monitoring for compliance with safety standards.
5. Disproportionate Impact on Minorities and Dissenters
Historically, laws with broad enforcement powers have had a disproportionate impact on minority groups and political dissenters. There is a risk that such groups could be targeted more often under the new regulations, either directly through biased application of the laws or indirectly by creating an environment of self-censorship where individuals are hesitant to express dissenting views.
Mitigating Potential Misuse
To prevent the misuse of eSafety laws, several measures can be implemented:
– Clear, Narrow Definitions: Laws should precisely define what constitutes harmful content to avoid broad interpretations that can lead to censorship.
– Transparent Processes: Enforcement actions taken under these laws should be transparent, with clear avenues for appeal and review.
– Regular Oversight: Independent oversight bodies should regularly review the application of these laws to ensure they are used appropriately and not for political purposes.
– Public Engagement: Continuous dialogue between the government, digital platforms, and the public is essential to balance online safety with free speech rights.
By considering these factors, Australia can strive to ensure that its eSafety laws fulfill their intended purpose without compromising the fundamental rights and freedoms that form the bedrock of democratic society.
The role of social media as a crucial platform for individuals to express political views and advocate for change cannot be understated. It serves as a global stage where voices, often marginalized in traditional media, can share their stories, mobilize support, and start movements. However, the new eSafety laws in Australia raise concerns about the potential negative impact on this vital function of social media.
Impact of eSafety Laws on Social Media Expression
1. Restriction on Content: The broad powers given to authorities under eSafety laws to remove what they determine as harmful content could lead to a significant reduction in the diversity of viewpoints expressed online. This might include political dissent or criticism of the government, which, although potentially contentious, are essential components of a healthy democracy.
2. Chilling Effect: Knowing that content might be surveilled and potentially removed can lead to a chilling effect, where individuals self-censor to avoid repercussions. This self-censorship is particularly detrimental to political discourse, as it stifles the free exchange of ideas that could lead to societal change.
3. Barriers to Mobilization: social media is a key tool for organizing protests and rallies. Overly strict eSafety regulations could hinder the ability of activists to use these platforms for mobilization by restricting the dissemination of calls to action, organizing coordination, and sharing of protest-related content under the broad guise of keeping public order or safety.
Proposed Expanded Section: The Role of Technology in Online Free Speech
Technology companies and social media platforms are at the forefront of shaping the digital discourse. Their content policies and moderation practices significantly influence what is seen as acceptable speech online. Balancing user safety with freedom of expression requires transparent moderation practices and a commitment to protecting users’ rights to free speech.
With the new eSafety laws, there is a tangible risk that these platforms may become overly cautious, potentially removing content that is merely controversial rather than harmful. This over-caution is particularly problematic for social media, which has become a primary avenue for political expression and advocacy.
The potential for these platforms to inadvertently stifle important societal discussions under the pressure of compliance with eSafety laws is a critical area of concern. Enhanced dialogue between policymakers, tech companies, and the public is essential to ensure that efforts to secure online environments do not undermine the dynamic, open nature of social media as a space for political engagement and social activism.
Spotlight on eSafety
As Australia strengthens its eSafety laws, scrutiny of these regulations is essential to ensure they are applied fairly and do not unduly restrict free speech. This section explores how these laws can be watched and scrutinized effectively to prevent potential abuses and ensure they serve the public interest without compromising fundamental freedoms.
1. Independent Oversight
To prevent misuse of eSafety laws, an independent oversight body should be set up or strengthened if it already exists. This body would handle reviewing actions taken under these laws, ensuring that decisions to remove content or penalize individuals or platforms are justified and proportionate. Regular audits and public reporting by this body can enhance transparency and accountability.
2. Judicial Review
Offering robust mechanisms for judicial review allows affected parties to challenge decisions they believe infringe on their rights. Courts can examine whether the actions taken under the eSafety laws are consistent with legal standards and principles, including proportionality and necessity in a democratic society.
3. Public Consultation and Involvement
Engaging the public through consultations and feedback mechanisms ensures that a diverse range of perspectives is considered in the administration and evolution of eSafety laws. This process can help policymakers understand the societal impact of these laws and adjust them based on public input to better balance safety and free speech.
4. Transparency in Decision-Making
Transparency is critical in keeping public trust in the enforcement of eSafety laws. Authorities should clearly outline the criteria used for deciding what constitutes harmful content and show statistics on the frequency and context of interventions. This transparency helps ensure that the enforcement actions are understood and accepted as necessary and fair by the public.
5. Legal Safeguards and Rights to Appeal
Implementing legal safeguards that protect against overreach is crucial. Individuals and entities should have the right to appeal against content takedown decisions or penalties imposed under eSafety laws. An effective appeal process should be accessible and expedient, offering a fair chance to contest decisions that participants consider unjust.
6. Collaboration with Digital Platforms
Regulators should work closely with social media platforms and other digital service providers to develop clear guidelines for content moderation that respect free speech while protecting users from harm. This collaboration can help ensure that platform policies are aligned with legal standards and are consistently applied.
7. Regular Policy Reviews
Regularly reviewing the eSafety laws themselves to assess their impact on free speech and online safety is necessary. These reviews can be conducted by parliamentary committees or independent commissions and should include evidence-based assessments to inform any needed amendments or updates to the legislation.
By incorporating these methods of scrutiny, Australia can foster a regulatory environment where eSafety laws effectively protect individuals from online harms without eroding the essential democratic value of free speech. This balanced approach is crucial for keeping a free and open internet while safeguarding the well-being of its users.
How Currency Sovereignty Can Support Genuine Free Speech
Australia’s control over its currency provides a unique tool in supporting initiatives like eSafety without compromising free speech. Through targeted funding:
– Subsidize Education: Invest in digital literacy programs that educate the public on both safe internet practices and the importance of free speech.
– Support Research: Allocate resources to study the impacts of eSafety laws and explore innovative solutions that protect individuals without limiting free expression.
Conclusion
The quest to harmonize eSafety with free speech in Australia presents a complex challenge, one that grows increasingly intricate as our digital world evolves. This article has highlighted not only the necessity of eSafety laws in protecting citizens from online harm but also the significant risks these laws pose to free speech, particularly in their potential misuse and the impact on social media as a platform for political dialogue and change.
To navigate these challenges effectively, a robust framework for scrutiny is essential. This includes independent oversight, transparent decision-making, and active public participation to ensure that these laws do not overreach, suppressing valid expressions under the guise of safety.
Moreover, embracing regular reviews and adjustments of these laws can help align them more closely with evolving societal values and technological advancements. By fostering an informed and vigilant community, Australia can aspire to an online environment that is both safe and free, ensuring that digital advancements enhance democratic participation rather than hinder it.
Call to Action:
Engage with policymakers, support transparent laws, and take part in discussions that shape the future of online safety and free speech in Australia.
Engage with Us
What are your thoughts on the balance between eSafety and free speech? Have you experienced or saw any impacts of these laws in your online interactions? Share your experiences and join the conversation below.
This comprehensive guide aims to equip readers with the knowledge to understand and influence the ongoing discussions about eSafety and free speech in Australia, helping ensure that the digital world still is as free as it is safe. freedoms.
References:
Anti-terror Laws: https://lawcouncil.au/policy-agenda/criminal-law-and-national-security/anti-terror-laws
A Decade of Australian Anti-Terror Laws: https://classic.austlii.edu.au/au/journals/MelbULawRw/2011/38.html
New bill would make Australia worst in the free world for criminalising journalism: https://theconversation.com/new-bill-would-make-australia-worst-in-the-free-world-for-criminalising-journalism-90840
Opportunism in the Face of Tragedy Repression in the name of anti-terrorism: https://www.hrw.org/legacy/campaigns/september11/opportunismwatch.htm
This article was originally published on Denis’s blog, Politics for the People.
Denis Hay: At 82 years young, I stand as a testament to the enduring power of dedication and belief in social justice. My journey has been shaped by a deep conviction that every individual deserves to be treated with dignity and respect and that equal opportunities for thriving should be a universal right.
My beliefs are not just ideals; they are the driving force behind my active engagement in advocating for change. I am deeply concerned about the pressing issue of climate change, recognizing its urgency and the need for immediate, collective action. This is not just a matter of policy for me, but a moral imperative to safeguard our planet for the generations to come.
As an administrator of several Facebook pages, I use my platform to challenge the prevailing neoliberal ideology, which I see as a destructive force against our society and environment. My goal is to foster a political system that truly serves the people, ensuring access to essential needs like decent housing, secure and well-paid jobs, education, and healthcare for all.
In this chapter of my life, my mission is clear: to leave behind a world that is better and more just for my grandchildren and future generations. It is a commitment that guides my every action, a legacy of compassion and advocacy that I hope will inspire others to join the cause.
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9 comments
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Pete
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Terence Mills
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Pete
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wam
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leefe
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JulianP
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calculus witherspoon.
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Pete
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Clakka
Return to home pageAgree with what is written in this article. I think one of the first steps is to get a Bill of Rights, including the right to freedom speech. Given the mess that was the govt and bureaucracy’s reaction to the covid psy-op, then for e-Safety, “independent oversight, transparent decision-making” is definitely required. I will believe that to be possible after there’s a proper Royal Commission into govt decisions made since 2020 through to today.
Good article and useful comment by Pete.
My main bug with social media is not so much the rights to freedom of speech and freedom of communication which I am generally very supportive of. What gets me is the way social media can deny an individual a right to personal freedoms and privacy with no particular remedies at hand.
For instance, we have seen instances of, mainly young people being shamed and humiliated by confronting photos they may have transmitted in private but that have then been posted on social media sites and viewed widely which in some cases have led to suicide with a stubborn reluctance by the social media platforms to remove these photos.
I mentioned elsewhere the situation where a person is the subject of a bloody assault and their final moments clinging to life are filmed and posted to social media without their consent.
If these situations were mirrored by a news publication or TV program, they could be the subject of defamation proceedings but as the social platforms say they are not publishers they have so far escaped liability and responsibility.
If Australia wants to lead the world we could do so by declaring these social media sites as publishers and subject them to the responsibilities and liabilities that flow from that : if we do it, many common law countries will follow.
Oh, by the way, there has been criticism of our E Commissioner in suggesting that she is trying to rule the global internet – looking at you SKY. Nonsense, we can only govern and regulate our own jurisdiction and if it encourages other jurisdictions to follow suite then well and good.
You are right Terence, in the hands of fools – social media is a weapon. How we get to to a better place without crushing free discourse and democracy and without yielding to agenda-driven tyrannical dictates of some trumped up eSafety commissionaire is a question.
free speech accepts the right for opinions to be free from supporting evidence.
wam:
It also accepts the “right” to be free from consequences.
As far as sedition and eSafety laws, our governments – state and federal – do not neeed them to stifle comment or activism. Look at how workplace safety and other laws are used against activists, particularly climate protesters.
Excellent article Denis, thank you. You cover a lot of ground and do so admirably.
As to the nuts-n-bolts, I agree with Pete, a Bill of Rights is long overdue and BTW, that’s a whole exercise in itself to ponder why it hasn’t happened. (Hint: political opposition – too hard, too complicated, and so on), and instead the much easier path of relying on the more “accepted” limits to free speech such as the laws of defamation, contempt of court, or even copyright law.
Curiously, and something you don’t hear about, is that Australia is a party to the International Covenant on Civil and Political Rights. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
Article 19 protects freedom of expression:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
You’d reckon that any half-competent legal draftsperson could make something of that for a home-grown Bill of Rights, but no, its all too hard; besides there’s always the risk of what Australians might do with such rights, then where would we be? Thin edge of the wedge.
Even so, I have long suspected that opposition to a Bill of Rights is simply another aspect of the long-running culture wars in Australia – over who gets to say what and where, and less obviously, who gets to do what and where – such as, for example, the ongoing “discussion” over religious discrimination.
My impression here is that those in favour of being able to discriminate on the basis of religious belief may henceforth likely argue on grounds of freedom of speech – this being less likely to harm to their cause than openly agitating for what they actually want to do.
However, and historically, a really good example of the snares and traps that lie in wait for those who would champion “freedom-of-speech” (from an arguably less restrictive point of view) was the furore that erupted over the Turnbull Government’s proposed amendments to section 18C of the federal racial discrimination legislation following the successful legal action brought against Andrew Bolt & Ors over allegedly discriminatory remarks against a number of Aboriginal persons.
That acrimonious “debate” was still going strong four years later and lies simmering just below the surface of public discourse.
Terence raises a critical point: for as long as social platforms say they are not publishers they will escape liability and responsibility, especially for those adverse consequences to which he refers. No doubt there are, and will be many other examples. Such a fundamental change is unlikely to happen in Australia (the less so I suspect under a conservative government), and even more unlikely to happen in the US where perhaps the First Amendment would intrude.
But coming back to a Bill of Rights, Article 19(3) of the Covenant contemplates limits to freedom of expression in the following terms:
“The exercise of the right [to freedom of expression] carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.”
Once again, even tho’ you’d reckon it would be relatively easy to navigate around this and create a decent framework of rights and exceptions, the ever-present bogyman of national security will continue to be used to prevent any possibility of a half-way decent set of civil and political rights regarding the individual’s relationship to Government.
I agree with leefe, that “As far as sedition and eSafety laws, our governments – state and federal – do not need them to stifle comment or activism.” There’s plenty of other ways to do that.
Timely.
Good comments section also.
Good points JulianP. Why would Aust not want its own Bill of Rights? Deferring to the OHCHR sets the scene whereby that body (operating cojoint with the UN), in amending its declaration to exclude the right to freedom of speech for whatever reason, leaves Aust high & dry.
Perhaps the reason the Aust govt doesn’t want to create a Bill of Rights is that it would require study of the Constitution so as to assure a complementary new Bill. My impression is the Aust govt ‘commercialized’ & subjected all Depts to a corporatization process back when ex-PM Whitlam was in power. Another mess.
Excellent article Denis, good onya.
Never before, to such an extent, have we attempted to wrangle such a vast complexity. It is fraught with the almost endless paradoxes of the human condition.
Indeed, a Bill of Rights, and especially ‘freedom of speech’ can be used as a double-edged sword. In America, the process of making laws and in fact affecting the operation of laws as intended becomes an entangled can-o-worms delayed and filibustered by the overarching ‘right’ to ‘freedom of speech / expression’ and common ‘morality’, whatever that is these days.
Progressively, America has struggled with ‘truth’ and / or ‘alternative truth’ and the process of reason and logic, the application of precedence, and the convenient use of the liquidity of language – a lawyer’s paradise. And only really available as a circus for those with fortunes to afford the multiplicity of rides. Ordinary folk are over it, want it gone, but have no power, nor idea how to get rid of it, other than perhaps a coup. Their history is replete with such actions, quite often bloody.
As for Pete’s ‘psyops’, certainly Uncle Sam made them an essential electronic dark art. But before that, they have existed since the year dot in a more analogue form by innumerable ways and means. In today’s world, all major states run them in one way or another and it’s almost impossible to avoid their data harvesting. If one uses a phone, especially a smart phone, and / or a computer connected to the internet, you are known – they have the data, or can acquire it in streams in minutes. Of course now, it’s not just govts, anyone can do it if they have the wherewithal, which is commercially available. So all one can do is take the usual precautions, know the law and all its idiosyncrasies, beware that we are surrounded by criminals and opportunists, and remain chilled.
In Oz, it’s no surprise that the govt wants to know everything, so they can properly assess risk, so they can ‘protect’ us, and of course themselves. Of course, on balance, sometimes it is a little difficult to perceive mutuality, whether the overarching consideration is for them to serve us, the ordinary folk, or for us to serve them for the purpose of the ongoingness of their power (and maybe access to the trough).
It is somewhat ironic that the govt and its tentacles are probably the greatest keepers of secrets. And despite chatter of transparency and freedom of information, there are almost endless devices by which they can conceal and / or peddle misinformation and / or disinformation ….. parliamentary privilege, cabinet-in-confidence, commercial-in-confidence, legal privilege, personal privacy rights, and so on and so forth. The reasons for redactions are almost endless.
Back to Uncle Sam, and matters de jour. Frustration, and the smashing of the democratic project. Beware the American Nazis / kleptocratic authoritarians. Their plans are rapidly ripening. And it’s worth noting that Trump now under the severe civil and criminal charges and court action, has pivoted his rhetoric to a Christian biblical rhetoric of the persecution of a saviour (Trump) and his inevitable resurrection for the ‘good’ of followers. Albeit, he has never been a Christian. And yet, of a huge sample surveyed, only 8% of Christians believe him, however over 60% of Christians will still vote for him. Look out!! … for PROJECT 2025