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Opinion: Australia has betrayed the Internet

When it comes to the Net, Australia is a rogue state run by a dictator. Games and porn, he claims, are all there is to the Web ...

The decision this week by the Australian High Court to allow entrepreneur Joseph Gutnick to sue US publisher Dow Jones for defamation in an Australian court, has opened a global can of worms and potentially ruined the great liberating aspects of the Internet: worldwide freedom of speech and exchange of information.

Whats worse is that the court could easily have avoided such a dire situation and even have helped fashion Internet law into a more coherent state.

Except that would be to forget Australia's utterly peculiar approach to the Internet. In a world where even the Chinese have recognised that the Internet is about connecting to the rest of the planet, the Australian government and judicial system is alone in its belief that it can remain utterly unchanged by new global forces.

To see how this blinkered protectionism has come about, you need to look back a few years. But first the Gutnick case needs to be quickly reviewed.

Mr Gutnick successfully argued that although the publisher and the server on which an offending article was held were both located in the US, people in his home town of Melbourne could read it on a screen and so he should be able to sue the company in an Australian court.

It's not difficult to see why the High Court thought this a reasonable request. Mr Gutnick felt he had been libelled, people in Australia could easily read the offending article, so why should he have to go all the way to the US to seek recompense just because that is where the publisher and/or server is based?

You can also feel for the Australian High Court because if it had made a decision the other way, it could be seen as not protecting its own citizens since anyone could publish anything about an individual and if they were based in a country with weak libel laws, that individual would be able to do very little about it.

There was however a very simple safeguard that the Australian High Court could have written in but manifestly failed to: that for someone to sue in the country, they would have to be an Australian citizen and residing in Australia.

It didn't do that and so now we have the situation where anyone can potentially sue anyone else for something they wrote on the Internet, in an Australian court. This isn't the main problem. The main problem is that now other countries will see the opportunity to pass similar judgements and either attract a huge lawyer industry to their country or effectively stamp down on freedom on speech all over the world – and all they need do is point to Australia and say they were following its lead.

So how could a liberal democracy such as Australia manage to make such a short-sighted, parochial and damaging judgement?

You need only look to Senator Richard Kenneth Robert Alston, Australia's deputy senate leader, both in opposition and government, since 1993, and the country's longest serving federal minister for communications.

Senator Alston proudly announces on his government website that he has been awarded the Award for Outstanding Contribution to the IT Industry by the Asian-Oceanian Computing Industry Organisation and was voted Best Asian Communications Minister by Telecom Asia magazine's Readers Choice Awards. But that was in November 1999 and May 2000 respectively.

Since then, he has passed the most unintelligible, self-serving and unjustifiable laws regarding the Internet that the world has yet seen.

The Australian IT industry is up in arms over Senator's Alston proclamations and despite, or perhaps because of, an extensive media campaign to get him out the Communications and IT post in the November elections last year, prime minister John Howard reassigned him to look after the country's hi-tech future.

Such is the fury over Mr Alston's actions that one respected news organisation dubbed him the "Minister for Obstructionism and Protectionism". We prefer to think of him as the world's biggest luddite.

So what has Senator Alston actually done and why has this given Australia such a perverse view of the Internet?

In March 2001, the government made it illegal to forward an email without the author's permission. Anyone caught doing so could face fines of $60,000 or five years in jail.

The idea was to nip in the bud the risk of potentially damaging personal or confidential information being disseminated all over the Internet in a matter of hours. It was a gross over-reaction to a pervasive fear at the time. A fear which has never been realised save the broadcast of a few immodest souls' sex life. Why? Because people instinctively do not like sending on something they feel may get them into trouble.

However, this over-reaction formed a pattern of subsequent law changes and started a gradual re-evaluation of the Internet from something whose benefits outweigh its problems to a dangerous threat that must be kept under control.

That same month, the parliament introduced a new bill making it an offence for anyone to post any information anywhere on the Internet that was unsuitable for minors. Again, the idea – or rather the justification – was to put a limit on the perceived threat of Australia being overrun with pornography.

Incredibly, the police were given the sole right to decide what was or was not offensive and levy fines of up to $10,000 on anyone find "guilty". The level of offensiveness was to be judged according to the country's film certification system.

But that wasn't all. Very soon after, Senator Alston – backed his old friend and prime minister John Howard – then proposed a law banning all online gambling. This was a very clever tactic since Australia has a notorious gambling problem and through years of careful drip-feeding, gambling has been turned into social enemy number one.

Again Alston traded on unproven fears that the Internet would turn the country into gambling addicts and proposed an untenable law where all online gambling would be illegal. He also demonstrated his increasingly parochial approach to law-making by allowing the country's betting industry to sell its services to people outside Australia.

Matters got worse when it was pointed out that Internet technology would easily allow this ban on Australians to be bypassed. Gambling companies were told they would be responsible for checking every player did not originate from Oz. And in a last-minute change to the legislation, Australian banks were then barred by law from honouring credit cards debts built up by Australian citizens on foreign gaming sites.

The madness continued: In October 2001, Alston attacked a plan to roll out broadband access across Australia – something that every other country in the world has been trying to encourage. Calling it a "waste of time", he explained that fast Internet access was only used by those playing games. Later on, he claimed that Singapore's incredible broadband roll-out was thanks to one thing and one thing only: porn.

And if that wasn't enough, Senator Alston planned legislation to force ISPs to block web sites that were arbitrarily decided to be immoral – a completely unenforceable situation as even the Chinese government has discovered. This was moved to no ISP hosting any content if a complaint was made to the Australian Broadcasting Authority. Clearly, this made it almost impossible for any but the most anodyne companies to set up an Internet presence in Australia for fear of being shut down on a single individual's say-so.

This puritanical streak even started extending into other arenas when to everyone's dismay, Alston decided to protect existing television networks in new digital television legislation by insisting the available spectrum was used up to give high-definition viewing. In one fell swoop, he removed any future competition from the market and ended the possibilities of hundreds of new TV channels. Why? It is safe to assume because he was convinced they would all contain porn or gambling.

And so, after nearly two years in which the Internet has been held up and legislated against as an example of evil to be controlled to save the nation's soul, we arrive at a point where Australia's grasp of how the Internet works is now so weak that its legal system is unable to see beyond its borders - or even wants to see beyond its borders.

In fact, in terms of the Internet at least, Australia has become a rogue state controlled by a crazed dictator determined to force his extremist views upon every citizen under his control.

The only saving grace is that the country remains a democracy and so, with luck, our cousins down under will soon vote in a different party with a more realistic perspective on the Web. Of course the damage by then may be irreparable.