Information flows

This page considers information flows as an introduction to some questions about censorship, free speech and secrecy.

It covers -

• information flows and barriers
• censorship
• blasphemy & lese-majeste
• obscenity
• violence
• symbols, sedition and science
• information assets
• the shape of regulation
• community attitudes

    information flows and barriers

Information is an entity with access bounded by legislation, practice and physical constraints that encompass -

• censorship (restrictions on offensive and dangerous content)
• intellectual property (copyright, patent, trademark, designs and plant variety rights law), discussed in a separate Guide on this site
• legislation and expectations about privacy, free speech, about defamation and about racial or other vilification
• commercial trade secrets and confidentiality regimes, including employment and contract legislation
• government secrecy regimes and complementary information access regimes (notably freedom of information and archives legislation)
• physical constraints such as infrastructure (eg the unavailability of broadband and other digital divides) and the visual, motor or other constraints considered in our accessibility guide.

Some of those boundaries are fluid, reflecting personal experience, cultural histories and social priorities.

Attitudes to privacy, for example, vary depending whether you are

• a celebrity (celebrities relinquish privacy as the price of fame?)
• someone viewing that celebrity's personal activity (what are the bounds of personal and public life?)
• someone who expects the state to surveil potential terrorists
• someone who realises that their consumption patterns and other demographics have become a data profile as part of what Gandy characterised as the panoptic sort (you are what you wear or just the barcode on what you wear?) or
• someone who is comfortable commoditising that data in return for promises of improved service or a cash incentive.

Restrictions on broadcast content similarly vary from Eire, the UK (eg bans on interviews with some terrorist groups), Sweden, Russia, China and Canada. Within Australia sale of particular video recordings is legal in the ACT but forbidden in Queensland other jurisdictions: geography matters.

Others boundaries are fixed.

Blindness, for example, restricts access to information irrespective of legislation or cost. As one contact told us, in commenting on the often claustrophobic nature of debate about the Australian regime,

I can use an online screen reader to study Australia's film rating regulation but I'll never be able to view the films.

Casablanca, Salo or A Night At The Opera don't come in braille. They are always going to be censored for me, irrespective of the OFLC, the FOL or the EFA.

    censorship

As the following pages suggest, censorship has had different meanings in different eras and different jurisdictions.

A working definition is that it is a mechanism for restricting access to content that is deemed offensive or dangerous (whether to the state or the individual).

That restriction may take the form of an outright prohibition, for example the specific ban in most nations on child pornography (although definitions vary). It may instead involve graduated access, eg content classification schemes aimed at allowing access by adults but restricting access by minors. It may also differentiate between access to content online and its availability offline.

Much debate about content regulation has centred on questions of personal autonomy and morality, with changing expectations about authority, about activities that are innately bad and about what can be regulated (eg bans from the 1850s to 1950s regarding birth control information). One point of entry for considering such questions is Alan Hunt's Governing Morals: A Social History of Moral Regulation (Cambridge: Cambridge Uni Press 1999).

Censorship has never been divorced from technologies, markets and social structures. Over the past decade it has been fashionable to claim that online censorship is antithetical to the spirit of the net, on which there are - or merely should be - no restrictions to information flows. Others have more credibly questioned whether the shape of the global information infrastructure permits meaningful enforcement of rules applying to particular jurisdictions, issues explored in the governance guide on this site.

Proponents of internet exceptionalism are now grappling with both the emergence of new content regulation technologies such as geolocation tools that seek to establish borders in a borderless cyberspace and with the effectiveness of cruder mechanisms (including surveillance of cybercafes and large-scale blocking of addresses) in nations such as China, Iran and Cuba.

In considering online censorship and continuities with past regimes (legislation, administration, advocacy, expectations) it may be useful to look at areas of restriction.

    blasphemy and lese-majeste

For much of history blasphemy (and more broadly offences against religious dogma) was the primary focus of censorship regimes, with exemplary punishment of blasphemers and measures for the identification, destruction or deterrence of heterodox works.

The secularisation of industrial societies over the past two hundred years - highlighted in works such as McLeod's Secularisation in Western Europe 1848-1914 (Basingstoke: Macmillan 2000) and Owen Chadwick's Secularisation of the European Mind in the 19th Century (London: Cambridge Uni Press 1975) - has been reflected in declining numbers of number of blasphemy prosecutions. Legal restrictions on blasphemy in Australia during the past two decades have essentially attracted attention as a curiosity or as a question about human rights in a multicultural society. Numerous jurisdictions, however, retain blasphemy statutes.

Mary Whitehouse for example used UK legislation against blasphemous libel to prosecute Gay News in 1977 over James Kirkup's The Love That Dares to Speak Its Name, with Justice Alan King-Hamilton disallowing defence of that poem on any literary or theological grounds. The defendents were convicted. In 1968 a Dutch novelist was acquitted by the Netherlands supreme court after prosecution under 'scornful blasphemy' legislation for portraying the deity as a donky. The 1979 Williams Committee Report on Obscenity & Film Censorship noted that the statute was solely concerned with Christianity and recommended its abolition, a suggestion supported by the Law Commission in its 1985 report Criminal Law: Offenses against Religion & Public Worship.

Germany's somewhat more nuanced 1969 federal legislation deals with "the ridicule of faiths, religious societies, and ideological groups", with provisions that

1) Whoever publicly or by means of spreading written material ridicules the content of a religious or ideological society in a manner deemed able to disturb the public peace, is to be punished by up to three years in prison or a fine.

2) Whoever publicly or by means of spreading written material ridicules a domestic church, religious society or ideological group, its facilities or customs in a manner deemed able to disturb the public peace, is to be punished similarly.

Fines under the legislation have been imposed as recently as 1996.

Joss Marsh's Word Crimes: Blasphemy, Culture & Literature in 19th Century England (Chicago: Uni of Chicago Press 1998) is an academic study of UK blasphemy censorship, complemented by Geoffrey Robertson's The Justice Game (London: Chatto & Windus 1998) for the 'Gay News' case. A US perspective is provided by Leonard Levy's Blasphemy: Verbal Offence against the Sacred, from Moses to Salman Rushdie (New York: Knopf 1993). The 1994 New South Wales Law Reform Commission Blasphemy report covers local developments.

This site features a more detailed profile on blasphemy in Australia and overseas.

Offences against God's representative on earth were also traditionally deemed worthy of censorship. In the UK the Treason Felony Act 1848, passed amid concern over the spread of republican sentiment and the revolutions of that year, made it a serious offence - initially punishable by transportation, now with life imprisonment as the maximum penalty - to call for the establishment of a republic in print or writing, by peaceful means or otherwise. The Act remains in force, although last used in 1883. Most jurisdictions have retained a more situational censorship, with restrictions under various riot and public gathering enactments.

    obscenity

Half a century after Margaret Mead (and two hundred years after the equally romantic Jean-Jacques Rousseau) it is clear that all societies have some notion of the 'obscene' and that many, if not all, have sought to restrict the transmission of representations or knowledge that's considered subversive of sexual mores and power relationships.

Famously cranky UK jurist Lord Devlin argued in The Enforcement of Morals (London: Oxford Uni Press 1959) that the disgust of "average members of society" provides a compelling reason to make an act illegal, even if it causes no harm to others, because every society has the right to preserve itself ... apparently from moral contagion.

The US Supreme Court in Miller v California more liberally held in 1973 that

a work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political or scientific value.

Censorship relating to obscenity in most nations has reflected a trajectory from perceptions that some acts were innately bad and should be criminalised to a recognition of the varieties of erotic experience (often an uneven recognition, given recent convictions in Texas for consensual adult same-sex activity and belated decriminalisation of homosexuality in Tasmania within the past decade) and consensus about individual autonomy (eg access to birth control information and judicial dicta about the inappropriateness of state intervention in the affairs of "consenting adults in the privacy of their bedroom").

As the following page of this guide suggests, there is continuing disagreement about the nature of obscenity, its impact and appropriate regulation.

That should deter glib characterisations about the enlightened versus reactionary or left versus right, with some of the more avant-garde US feminist groups for example allying themselves with Christian fundamentalists. Robin Morgan for example issued a call to arms with the 1980 statement that "pornography is the theory; and rape the practice" (pornography being anything that objectifies women).

As Edward de Grazia's Girls Lean Back Everywhere: The Law of Obscenity & the Assault on Genius (New York: Random 1992) and David Allyn's Make Love, Not War - The Sexual Revolution: An Unfettered History (Boston: Little Brown 2000) note, community expectations have changed.

In 1888 a UK judge condemned Zola's La Terre as

of such a leprous character that it would be impossible for any young man who had not learned the Divine secret of self-control to have read it without committing some form of outward sin within twenty-four hours after.

States such as Singapore and Fiji apparently have not read - or instead respected insights in studies such as the 1950s Kinsey reports, with oral genital contact in the 'cleanest state in Asia' currently illegal under legislation providing for punishment of "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals" with a fine and imprisonment of up to 10 years. Fiji and Tonga have imprisoned visiting Australians who have privately engaged in consensual same sex activity.

Contemporary anxieties about appropriate outlets reflect a new focus on child pornography and a more traditional concern about new technologies, with much polemic about online obscenity being strongly reminiscent of past jeremiads against photography (something for the masses, unlike erotic texts in a learned tongue).

Four points of entry into the literature about consumption and consequences are Berl Kutchinsky's Australian Institute of Criminology paper Pornography, Sex Crime & Public Policy (PDF), the 2004 NZ Department of the Interior report on Internet Traders of Child Pornography and other Censorship Offenders in New Zealand (PDF), Harm & Offence in Media Content: A review of the evidence (Bristol: Intellect 2006) by Andrea Hargrave & Sonia Livingstone and The Porn Report (Carlton: Melbourne University Press 2008) by Alan McKee, Kath Albury & Catharine Lumby.

    violence

Community perceptions of individual and collective violence have also shifted, nicely illustrated in works such as Anthony Rotundo's American Manhood: Transformations in Masculinity from the Revolution to the Modern Era (New York: Basic Books 1993). The impact of the media on violent behaviour and the efficacy of censorship is contested.

Some critics argue that 'privatisation' of moral regulation has seen a shift from control of the erotic sphere to constraints against the depiction and thus encouragement of violence, with other advocates 'closing the loop' by claiming that all pornography is a representation of violence. Others - such as the people at Caslon - have adopted an agnostic attitude regarding the more extreme claims and the proliferation of academic studies indicating the violent representations do/do not breed violence.

Much of the anxiety about violence has centred on the particular epoch's new media: film (associated with a succession of moral panics in Australia, New Zealand, UK and US), television and now the internet. Claims about television in particular have been marked by assertions that it is peculiarly powerful and dangerous, perhaps at odds with suggestions that viewers can indeed turn off the idiot box if it is that disturbing and that parental worries about viewing are rarely matched by supervision of those in their care.

Longitudinal Relations Between Children's Exposure to TV Violence and Their Aggressive and Violent Behavior in Young Adulthood: 1977-1992 (PDF), one of the more recent studies, claims that

childhood exposure to TV violence (along with a tendency to identify with aggressive TV characters and a belief that the violence seen on TV accurately represents real life) better predicts adult aggressiveness than does a child's initial aggressiveness, intellectual ability, or parents' educational background. But whereas exposure to violence on TV correlates with adult physical aggression in men and women alike, it correlates more strongly with "indirect aggression" in women. Thus girls exposed to considerable TV violence are more likely not only to grow up to shove, punch, beat, or choke other people but also to try to talk their friends into disliking someone who has angered them.

Censors have grappled indifferently with regulating information that might be used for violent crime, financial misdeeds or other inappropriate behaviour - in effect seeking to anticipate intentions. That is problematical given the desirability of information sharing about technological principles and processes (for example basic chemical interactions), administrative protocols and descriptions of infrastructure. A consequence is that much online censorship regarding violence is based on gesture politics.

The US federal Violent & Repeat Juvenile Offender Accountability Act of 1999, for example, criminalises the teaching or distribution of information on "how to make a bomb or other weapon of mass destruction" if the distributor intends use of the information to commit a federal violent crime or knows that the recipient intends to use it to commit such a crime. The penalty is a fine of US$250,000 and/or a maximum of 20 years imprisonment.

Critics have responded that use of the law to expunge pyrotechnics information from the web is inconsistent with the Federal Government's print publication (in for example the Forestry Service's Blaster's Handbook) of details about explosive manufacture and deployment and the 1997 report on The Availability of Bombmaking Information by the Department of Justice's cybercrime unit.

    symbols, sedition and science

In discussing censorship of the visual arts later in this guide we've noted the power of symbols and the attractiveness - if not imperative - to destroy or restrict representations. That's evident in Byzantine or early Reformation iconoclasm, in the 'rectification of history' via airbrush of losers in Stalinist and Maoist political struggles, and the more recent destruction by the Khmer Rouge and Taliban of Buddhist sculptures.

In the West much censorship traditionally centred on sedition: incitements to overthrow established order or merely to disrespect those at the top end of the social/economic pyramid. Ithiel de Sola Pool spoke of 'technologies of freedom'; for those on one side of the regulatory divide all media were instead technologies of subversion - inciting discontent, asking and answering questions, offering access to tools such as bombs (or, as explosively, birth control) and to examples of how those tools might be used.

In discussing the history of censorship in Australia and New Zealand we've accordingly noted the suppression of writings by radical groups and individuals, bans on films and broadcasts thought to threaten the nation's moral fibre, and censorship of symbols of dissent such as a Renoir nude from a Melbourne shopfront in 1944. That is consistent with experience overseas, where for example Nelson Rockelefeller immortalised Diego Rivera through removal of a portrait of Lenin from the Rockefeller Centre mural.

In any market economy much sedition is self-regulated: subversives are free to mount the soapbox but will not disturb the advertisers by being given airtime on the idiotbox, leaving dissent safely quarantined in academia, low-rating public broadcasts or street corners.

Self-censorship is also apparent in some commercial publishing, most insidiously in curriculum development and publishing. We were struck by a recent account of US experience -

"Are you going to tell kids that Thomas Jefferson didn't believe in Jesus?" a textbook editor asked a history teacher. "Not me! If there's something that's controversial, it's better to take it out."

leading one critic to speak of the bland leading the blind.

In practice that intolerance is not confined to the agents of capital. Censorship by shouting-down is a feature of many digital policy online fora and exponents of cyberliberties in Australia have often been strongly dismissive of alternative views in groups such as the auDA DNS list and LINK list.

One of the shibboleths of enlightened public discourse over the past hundred years is that restrictions on a free flow of information are antithetical to scientific development and consequential social goods. That is reflected in finite rather than perpetual intellectual property duration, protection for expression rather than idea, and fair dealing/use provisions.

Legislation, such as the US Digital Millennium Copyright Act, that forbids exchange of information about anti-circumvention, encryption and other technologies thus engenders considerable passion. For some people figures such as Edward Felten have been seen as counterparts of Clarence Darrow in the Scopes Monkey Trial in US or other emblematic instances of an ongoing battle between barbarism and virtue.

    information assets

In the aftermath of 11 September - something that's akin to the Haymarket bombing of the 1880s rather than a fundamental clash of civilisations - there has been renewed attention to government publication of information, particularly the withdrawal of online and offline content and proposals to strengthen regimes concerning the duties of civil servants and official secrets. Censorship is one aspect of the 'war against terror', as it has been of most preceding wars.

One aspect of that censorship is action by government agencies. Another is self-regulation by media groups and journalists, for whom truth - to adapt Philip Knightley's words - is necessarily the first casualty.

Given the significance of information in many cultures since the 1650s the notion of a radically new 'information economy' may be misplaced. However, there is an acceptance among many businesses - and more analysts (sadly, often the most complicit victims of the latest zeitgeist) - that information is a critical asset, if not an enterprise's primary asset.

That is reflected in the range of restrictions on information flows identified above, in particular those relating to

• ownership of knowledge, notably trade secrets, employment and intellectual property law
• positioning within the 'attention economy', encompassing mechanisms for the protection of corporate brands and personal reputations through for example trademark law and defamation law

In considering information flows there is an inevitable tension between proprietary rights in information versus notions of transparency, free speech and achievement of public goods through whistleblowing.

    the shape of regulation

In the governance guide we highlight the debate about whether the net should be regulated. From our perspective much of that debate is misplaced. Regulation of both the infrastructure and the applications on that infrastructure is a fact. It will become more so, at the national and global levels. 

The following pages highlight several aspects of regulation -

• regulation is contested and some of the more vociferous advocacy groups have been distinguished by zeal rather than a sizeable constituency
• much policymaking regarding the regulation of content on 'new media' has been reactive and ad hoc, with a shallow understanding of technologies and problematical grounding in research
• regulatory mechanisms acquire a life of their own, and 'temporary' solutions (eg those established after what some commentators characterise as a moral panic) often become embedded in public policy that fails to evolve with community expectations
• such mechanisms, particularly those that co-opt major commercial interests, are often more effective than might appear from triumphalist accounts of a long march to liberty

In considering Australian regulation of online content a fundamental question is whether the regulatory schemes (at the international, national and regional level) are effective? Does the enforcement machinery work? Are the rules - legislation, industry codes, community norms - coherent? Are intermediaries such as schools, public libraries and schools bearing an undue regulatory burden because they're more susceptible to state sanctions than an online porn vendor?

The answers to those questions will remain in dispute for some time.

Amendment of Australia's rather clumsy online legislation is desirable. It is also likely that the technological quick fixes strongly promoted by particular governments and advocacy bodies, notably online filtering software, are ineffective. They may well be superseded as community perceptions change.

    community attitudes

As we've suggested in discussing privacy, community attitudes and community behaviour regarding censorship, censorship and free speech varies considerably depending on particular circumstances and who is asking questions.

That is one reason for caution in assessing claims by advocacy groups and governments that individuals -

• favour stronger/weaker government regulation of content, whether offline or online
• are committed to free speech in both principle and practice
• understand the operation of existing regulatory regimes and the consequences of particular policy decisions

Many Australians, for example, appear to believe that the Commonwealth Constitution duplicates US constitutional and judicial protection for free speech, although in fact it provides implied and limited protection for communication of a political nature.

Polling in the EU, North America and Australia suggests that consumers want greater regulation of broadcast content, want less or are comfortable with existing regimes. The vehemence with which some people have demanded ISP or other filtering of online content to protect minors seems at odds with the apparent casualness with which many guardians supervise online access by children. Consumption of adult video and online erotica is not restricted to a few isolated demographics.

In essence, one conclusion that can be drawn from watching how people behave away from the pollster or voting booth is that they conceptualise censorship as something that does (and indeed should) happen to someone else.





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