Free speech & censorship
This note considers sedition and treason law, including
government responses to seditious content on the net and
prohibitions on membership of or support for particular
It covers -
and controversies - key questions and points of entry
to the literature
- the shape of Australian treason and sedition law
treason and sedition law
and New Zealand law
treason and sedition law
- treason and sedition on the Continent
- law in other jurisdictions
- major cases in Australia and News Zealand
- sedition in the online environment
- prohibited organisations and association
- disobedience by the armed forces and police
supplements discussion elsewhere on this site regarding
censorship, hate sites, defamation, secrecy, privacy,
security and surveillance.
Recent concerns about terrorism have been resulted in
calls for action against websites and online fora that
preach hatred, contain exhortations to violence against
states or individuals, aid recruiting or fundraising by
terrorist organisations, or feature guidance about activities
such as bombmaking.
Those calls reflect characterisations - often lurid -
of the net as a home for terrorists and the 'next frontier'
for conflict or as a vulnerable 'critical information
infrastructure' threatened by cyberwarfare. They embody
expectations that law enforcement bodies can identify
sites/fora, authors and readers. They include suggestions
that governments and agents such as ISPs
should restrict online and offline expression, for example
suppressing offensive/dangerous sites under existing or
new law regarding censorship,
sedition and hate-speech.
They are complemented by suggestions for increased surveillance
of telecommunications. Such suggestions include strengthening
of monitoring schemes such Echelon,
exemptions in privacy legislation
and requirements that regulatory chokepoints such as ISPs
retain traffic or other customer data for several years.
Some suggestions have been criticised as 'gesture politics'
or founded on misrepresentations of particular threats
and solutions. Others have been criticised as inconsistent
with free speech and
other civil liberties, improperly restricting ideas rather
technologies of freedom?
Ithiel de Sola Pool spoke of electronic media - particularly
the 'new media' - as 'technologies of freedom'. For those
on one side of the regulatory divide all media were instead
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, enabling malcontents to come
together to attack or overthrow the state
of repression - mechanisms for producing a false consciousness
and for surveillance
of friend and foe alike.
In responding to perceived online dangers governments
and others have unsurprisingly turned to past legislation
and administrative practice.
sedition before the net
Historically the legal codes of most nations have featured
explicit restrictions on sedition, ie against advocacy
of overthrowing those in power or merely disrespect for
their persons and status. Those restrictions have often
been broad-ranging and selectively applied. They have
often been complemented by legislation that is specific
to particular organisations, causes or media.
In the West such restrictions have waxed and waned, reflecting
anxieties about jacobinism, anarchism, fascism, pacificism,
communism, and contemporary terrorism.
They have also evolved over the past 500 years. Notions
of treason, sedition and revolt in early modern western
states centred on the monarch, encompassing offences such
as taking up arms against the king, refusing to recognise
the monarch's authority (eg refusing to pay taxes, respect
magistrates or disperse when ordered) and sleeping with
the king's wife. They also encompassed writing, publishing
and disseminating treasonous libels - often broadly construed
as including denial of a monarch's legitimacy and questions
about a particular religious orthodoxy (as the monarch
was God's vicegerent on earth).
Those states have grappled with questions about action,
idea, association and responsibility. Most have increasingly
differentiated between ideas - "it is not the task
of government to discern what is in mens' hearts "
- and action, while being ambivalent about speech and
association. Some for example have proscribed specific
organisations and even sought to criminalise membership,
on the basis that membership signals a commitment to overthrow
the established order and an acceptance of responsibility
for actions by individual members.
Legislation under George III for example made it an offence
to use any words to excite hatred and contempt of the
king, government or constitution, particularly speech
that might have a "tendency" to cause disloyalty
in the armed forces. More recently the UK government banned
representatives of the IRA from speaking on British television.
Restrictions in Australia, New Zealand, the UK, US and
elsewhere over the past century have encompassed the -
of specific organisations
of particular speech (eg attempting to subvert a nation's
armed forces and law enforcement personnel, advocacy
of pacifism during times of war or criticism of action
by a government and the nation's allies)
of publications and broadcasts as likely to threaten
use of sedition law has not been confined to those who
practice violence. In Singapore and Malaysia it, along
with defamation action, has has been used to dampen criticism
by journalists and opposition politicians. In China it
has been used against the Falun Gong sect and against
those who dare to question the Communist Party's monopoly
of power. It provides for criminal sanctions against critics
of the Ba'ath Party in Syria. In Tonga and Saudi Arabia
it has been used to squelch comment on endemic corruption
among the ruling families.
What is the shape of 'terror online'? Observers have broadly
differentiated between sites/fora that -
technical information that facilitates bombmaking or
exhortations to violence, whether general or relating
to a specific individual
for recruitment or provision of financial and other
broadly represent views of particular individuals and
diffuseness of that categorisation means that there are
no definitive figures about the number of sites/fora;
claims by particular agencies and authors should be treated
with some circumspection. We have pointed to some estimates
in discussing online hate
sites. As of 2004 one observer counted around 14,000
Figures on the audience for such sites are more problematical.
The size and demographics of the audiences accessing the
content is unclear. One reason is that commercial metrics
services are strongly biased towards major sites - particularly
those in the 'anglosphere ' - and to those with a business
orientation (eg that feature advertising or sell goods/services).
The impact of the sites is also unclear. Arguably for
a mass audience few are more persuasive than traditional
print media and broadcast. They may, however, confer a
legitimacy on particular organisations or reinforce membership
of a particular community. Particular sites/fora are not
oriented towards a mass audience but are instead presumably
targeted at practitioners of the propaganda of the deed.
There is disagreement about the appropriateness and effectiveness
of particular responses to 'extreme' online content. One
major argument against suppression of sites, fora and
statements is that restriction is antithetical to core
democratic and liberal values of free speech (or merely
to frameworks such as the 1950 European Convention for
the Protection of Human Rights & Fundamental Freedoms
That argument is complemented by suggestions that authors/publishers
will go jurisdiction shopping - for example if your hate
site is banned in the UK or Germany you will simple host
in the US, relying on that nation's judicial support for
free speech - or that suppression merely feeds the anxieties
and resentments that breed terrorism.
Others argue that suppression in penalising - even criminalising
- ideas and association rather than actions requires recourse
to archaic law (eg enactments dealing with treason), pervasive
surveillance of law-abiding citizens and erosion of traditional
boundaries between church and state.
Others still argue that overly-broad restrictions will
result in takedown of 'bombmaking' sites but not inhibit
access to more detailed information in print formats.
Some ask whether someone can be charged with inciting
violence if no violent act ensues. Will penalties apply
if someone did act violently based on another's statements
but the author did not intend to provoke the response?
Those criticisms have provoked a range of rejoinders,
including arguments that "we must start somewhere"
or "send a signal" by acting locally, that international
agreement about restricting specific organisations is
achievable, that communities have always traded some liberties
during periods of crisis, and that religious belief is
not a licence to preach violence.
Government responses to terrorist content online have
taken five forms -
identification and organisation identification
or encouraging filtering
A basic response to 'extreme' content and threats is essentially
the identification of relevant sites, fora and organisations.
As we note below, governments have traditionally sought
to leverage their finite resources by using lists of proscribed
or 'suspicious' organisations and texts. Those lists are
of some value in for example for confiscation of documents
or assets and in surveillance of members or consumers
On the basis of identification governments have prohibited
hosting of particular
categories of content or by/for particular organisations.
The model has been provided by traditional action against
print publishers, with for example bans on the printing
and distribution of particular texts or publication that
is not licensed by a government agency/delegate. Online
that has encompassed orders requiring internet content
hosts to takedown web sites/pages and fines/imprisonment
for entities that host content in breach of official rules.
Action against hosting has been complemented by restrictions
aimed at authors or those otherwise responsible for content
being made available.
The shape of those restrictions vary. Some regimes, such
as China, Syria and Iran, use criminal rather than civil
sanctions. It is thus of interest to see indications in
the UK that "condoning or glorifying terrorism"
(including terrorism outside Britain) will become a criminal
Particular governments have dealt with seditious, subversive
or otherwise undesirable organisations by attempting to
block access by their citizens to sites under the auspices
of those organisations. One example is the 'Great Firewall
of China', which among other things attempts to stop residents
of the PRC from viewing sites by or favourable to Falun
Other governments have tacitly or formally endorsed action
by ISPs and filter
vendors to block access at the private network (eg an
ISP or school) or individual machine level.
Governments have similarly sought to identify people who
are reading, rather than publishing, content that is deemed
'I have a little list'
Modern states are based on categorisation and enumeration.
Australia and other nations thus continue to maintain
lists of proscribed organisations, which face restrictions
of varying severity.
During the 1950s the Menzies government for example unsuccessfully
sought to make membership of the Communist Party an offence.
The current Australian regime provides that when a body
is classified as a 'terrorist organisation' under the
Security Legislation Amendment (Terrorism) Act 2002
it is an offence to -
direct the activities of the organisation;
recruit persons to the organisation;
receive training from or provide training to the organisation;
funds from or make available funds to the organisation;
provide support or resources to the organisation;
be a member of the organisation.
is a more detailed discussion of blacklists and loyalty
legislation later in this note.
next page (studies)