Australia Censorship News

Australian media companies and Facebook are scrambling to come to terms with a landmark ruling by an Australian judge that found publishers are legally responsible for pre-moderating comments on Facebook.

On Monday in the New South Wales supreme court judge Stephen Rothman found that commercial entities, including media companies, could be regarded as the publishers of comments made on Facebook, and as such had a responsibility to ensure defamatory remarks were not posted in the first place.

News Corp Australia responded to the judgement in a statement:

This ruling shows how far out of step Australia's defamation laws are with other English-speaking democracies and highlights the urgent need for change. It defies belief that media organisations are held responsible for comments made by other people on social media pages.

It is ridiculous that the media company is held responsible while Facebook, which gives us no ability to turn off comments on its platform, bears no responsibility at all.

The ruling was made in a pre-trial hearing over a defamation case brought by Dylan Voller against a number of media outlets over comments made by readers on Facebook.

Paul Gordon, a social media lawyer at Wallmans lawyers in Adelaide explained the change to Guardian Australia:

Up until yesterday the general thread [was] if you knew or ought to have known a defamatory post was there, you had to take it down.

What the judge yesterday found was a bit different, because it wasn't alleged by Voller that the media companies had been negligent in failing to the take down the comments. Instead, the judge found the companies were responsible for putting them up in the first place.

That's really the key difference. You have a situation where now media companies are responsible not just for taking down comments when they see them, but for preventing them going up in the first place. It places a significantly bigger burden on media companies from what was previously in place.

News Corp Australia said it is reviewing the decision with a view to an appeal.

Perhaps the only way for companies to abide by this understanding  of the law is for them to take down their Facebook pages totally.

The Nightingale is a 2018 Australia adventure thriller by Jennifer Kent.
Starring Sam Claflin, Damon Herriman and Aisling Franciosi.

Set in 1825, Clare, a young Irish convict woman, chases a British officer through the rugged Tasmanian wilderness, bent on revenge for a terrible act of violence he committed against her family. On the way she enlists the services of an Aboriginal tracker named Billy, who is also marked by trauma from his own violence-filled past.

The director of a brutal historical drama -- containing numerous visceral rape scenes that prompted cinemagoers to walk out of a Sydney screening on Sunday -- has defended her film, saying it's historically accurate.

Aussie film The Nightingale, directed by Jennifer Kent, was screened as part of the Sydney Film Festival to a sold-out audience of more than 1000 people.

Some audience members were so distressed by the on-screen violence, that they yelled out in protest and walked out.

However, Kent responded saying that the unflinching rape-revenge story, set in 1825, contains historically accurate depictions of colonial violence and racism towards our indigenous people:

We've made this film in collaboration with Tasmanian Aboriginal elders, and they feel it's an honest and necessary depiction of their history and a story that needs to be told, she said. I remain enormously proud of the film.

However, it was clear some in Sydney on Sunday didn't feel the level of sexual violence was warranted in telling the story of Clare, tweeting:

The Nightingale made me do something I thought I would never do. I walked out. There was a point when I just needed to take myself away from that brutal space. But I recognised that this is an important film so I walked back in and watched the rest of the movie.

Viewers also walked out during later scenes in the film that showed horrific levels of violence towards babies, children and mainly indigenous people -- with close-up shots of faces being mashed up, brutal stabbings and even more drawn-out rapes.

Despite the criticism, The Nightingale received a sustained round of applause as the credits rolled at the Ritz last night.

Rocketman is a 2019 UK / USA musical music biography by Dexter Fletcher.
Starring Bryce Dallas Howard, Taron Egerton and Richard Madden.

A musical fantasy about the fantastical human story of Elton John's breakthrough years.

Rocketman follows in the footsteps of the similarly gay themed Freddie Mercury biopic Bohemian Rhapsod y. Perhaps with an eye on repeating the successful formula of the earlier sanitised and PG-13 rated biopic, Hollywood producers Paramount seemed to have been pushing for Rocketman to get a PG-13 rating.

Paramount demanded that Rocketman director Dexter Fletcher and producer Matthew Vaughn cut a 40-second scene that depicts Elton John and one-time lover and manager John Reid, writhing on a bed. Fully exposed white derrieres are on display, but the nude escapade is tastefully done.

However it seems that the film makers won the argument as the film ended up with an R rating that confirms the sexual content.

In the UK, the film was passed 15 uncut for drug misuse, sex, very strong language.

Update: Distributors win appeal for an M rating

24th May 2019. See article [pdf] from classification.gov.au

Australia's Review Board has overturned the Classification Board's MA15+ uncut for strong coarse language in favour of M for mature themes, drug use, sex scene and frequent coarse language'.

The Review Board explained that previous confusion about a cut version was down to information being embargoed at the request of the film distributor. Two version were submitted but one of these was an unfinished version rather than a censored versions. The Review Board has now supplied a more complete account of the decision process.

Initially the Classification Board passed the film MA15+ uncut for strong coarse language.

The issues requiring an MA15+ over an M rating were related to strong language rather than the gay themes, and in particular the a single use of the word 'cunt'.

The distributors appealed the MA15+ rating and won their case as the Review Board reduced the rating to M for mature themes, drug use, sex scene and frequent coarse language'. The Review Board explained its decision:

It is the view of the Classification Review Board that the dramatic biographical context does mitigate the impact of the language, and specifically, the one instance of the use of strong coarse language.

Films classified M are considered suitable for mature audiences. It is for the above reasons, that the Review Board has decided that the contextual singular use of a strong coarse word can be accommodated at the M classification on this occasion.

The other frequently used coarse words are routinely accommodated at the M classification level.

In an unprecedented attack on press freedom in Australia, 23 journalists and 13 media outlets have been hit with charges relating to the child sexual abuse trial of Catholic cardinal George Pell. The accused include Australia's two biggest newspaper companies, Rupert Murdoch's Nationwide News and the former Fairfax group now owned by broadcaster Nine, as well as leading newspaper editors and reporters.

The media and reporters are accused of abetting contempt of court by the foreign press and of scandalising the court by breaching a gagging order, despite none of them reporting on the charges involved or mentioning Pell by name. The court had banned all reporting of the case pending a second trial that was later cancelled.

Some foreign media, including The New York Times and the Washington Post , reported Pell's conviction in December, while local media ran cryptic articles complaining that they were being prevented from reporting a story of major public interest.

Matthew Collins, representing the accused media at the first hearing on the matter today, said such wide-ranging contempt charges had no precedent in Australian legal history. Collins added that a guilty verdict on any of the charges would have a chilling effect on open justice in Australia. He insisted that the contempt allegations lacked specific examples of how any of the accused news companies or journalists actually breached the gag order when they never mentioned Pell or the crimes for which he was convicted.

Hellboy is a 2019 USA action Sci-Fi fantasy by Neil Marshall.
Starring Daniel Dae Kim, Milla Jovovich and David Harbour.

Based on the graphic novels by Mike Mignola, Hellboy, caught between the worlds of the supernatural and human, battles an ancient sorceress bent on revenge.

In the UK the BBFC have passed the 2019 remake of Hellboy as 15 uncut for strong bloody violence, gore, language.

In Ireland the cinema release is 16 rated by IFCO for very strong bloody violence.

In the US the film was MPAA R rated for strong bloody violence and gore throughout, and language.

The film censors of the Australian Classification Board rated the film as R18+ (18 in UK terms) for High impact violence, blood and gore.

The Australian distributors felt that a lower rating was a possibility, and appealed to the Classification Review Board for an MA15+ (15A in UK terms).

However the Classification Review Board disagreed with the appeal and maintained the original rating of R18+ for High impact violence, blood and gore. The Review Board wrote:

A five-member panel of the Classification Review Board has unanimously determined that the film, Hellboy, is classified R 18+ (Restricted) with the consumer advice High impact violence, blood and gore.

In the Classification Review Board's opinion Hellboy warrants an R 18+ classification because the violence has a high impact. The overall impact of the classifiable elements in the film was high. It is the view of the Classification Review Board that the fantasy context does not mitigate the cumulative impact of the violence on a more vulnerable audience.

The Australian Government have announced the introduction of a new bill aimed at imposing criminal liability on executives of social media platforms if they fail to remove abhorrent violent content. The hastily drafted legislation could have serious unintended consequences for human rights in Australia.

The rushed and secretive approach, the lack of proper open, democratic debate, and the placement of far-reaching and unclear regulatory measures on internet speech in the the criminal code are all matters of grave concern for digital rights groups, including Access Now and Digital Rights Watch.

Poorly designed criminal intermediary liability rules are not the right approach here, which the Government would know if it had taken the time to consult properly. It's simply wrong to assume that an amendment to the criminal code is going to solve the wider issue of content moderation on the internet, said Digital Rights Watch Chair, Tim Singleton Norton.

In particular, the lack of any public consultation is particularly worrisome as it shows that impacts on human rights were not likely to be considered by the government in drafting the text. Forcing companies to regulate content under threat of criminal liability is likely to lead to over-removal and censorship as the companies attempt their best to avoid jail-time for their executives or hefty fines on their turnover. Also worryingly, the bill could encourage online companies to constantly surveil internet users by requiring proactive measures for general content monitoring, a measure that would be a blow to free speech and privacy online. Lucie Krahulcova, Australia Policy Analyst at Access Now, said:

Reforming criminal law in a way that can heavily impact free expression online is unacceptable in a democracy. If Australian officials seek to ram through half-cooked fixes past Parliament without the proper expert advice and public scrutiny, the result is likely to be a law that undermines human rights. Last year's encryption-breaking powers are a prime example of this

Regulating online speech in a few days is a tremendous mistake. Rather than pushing through reactionary proposals that make for good talking points, the Australian government and members of Parliament should invest in a measured, paced participatory reflection carefully aimed at achieving their legitimate public policy goals.

The reality here is that there is no easy way to stop people from uploading or sharing links to videos of harmful content. No magic algorithm exists that can distinguish a violent massacre from videos of police brutality. The draft legislation creates a great deal of uncertainty that can only be dealt with by introducing measures that may harm important documentation of hateful conduct. In the past, measures like these have worked to harm, rather than protect, the interests of marginalised and vulnerable communities, said Mr. Singleton Norton.

This knee-jerk reaction will not make us safer or address the way that hatred circulates and grows in our society. We need to face up to the cause of this behaviour, and not look for quick fixes and authoritarian approaches to legislating over it, he concluded.