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Proposed Australian Legislation to have Overseas ISP Filtering

posted on 2010-01-19 00:04 EST by Crystalyn Hodgkins

This year, the Australian government will introduce legislative amendments that would require all Internet Service Providers (ISPs) to filter overseas websites that contain "Refused Classification" content. "Refused Classification" content is defined as: "child sexual abuse imagery, bestiality, sexual violence, detailed instruction in crime, violence or drug use and/or material that advocates the doing of a terrorist act." The filtering would take effect within 12 months of the passing of the legislation. The legislation would also include ISPs that "provide Internet services to devices such as mobile phones and online console or handheld gaming devices."

According to Australia's Criminal Code Act of 1995, "child pornography material" is defined as:

(a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
    (i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
    (ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive ...

It was ruled that a "person, or a representation of a person" includes cartoon depictions in the case of McEwen vs. Simmons & Anor in December 2008. In the case, an appeal was denied for a man who was convicted of possessing child pornography and accessing child pornography on his computer. The materials depicted pictures of characters from the American television series The Simpsons engaging in sexual acts.

According to the same act, "child abuse material" is said to include depictions of "a person, or a representation of a person" under 18 who "appears to be" or is "implied to be a victim of torture, cruelty or physical abuse." However, whether or not "child abuse material" will be considered "Refused Classification" content is yet to be determined.

However, for the legislation of some states such as the Crimes Act of 1900 for the state of New South Wales, the definition of child pornography includes the depiction of a person under 16 "as the victim of torture, cruelty or physical abuse (whether or not in a sexual context)." Whether or not the proposed ISP-filtering legislation will take state laws into account is also yet to be determined.

In addition, the Minister for Home Affairs is currently drafting a consultation paper to create a R18+ category for online computer games. Whether or not overseas-hosted online games will also be filtered will "be developed drawing on this consultation process."

Source: Australian Government Department of Broadband, Communications and the Digital Economy (DBCDE)

Thanks to Katie Freund for the news tip.


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