To Hear or Be Heard
You are probably aware of the swirling debate surrounding the controversial plan to ‘filter the internet,’ figureheaded by the now infamous Senator Stephen Conroy. Much of the debate has centred around a single apparent dichotomy: ‘the right to free speech’ vs ‘the right to masturbate over photos of children being raped’ (Thanks to Andrew Bolt for that particularly pithy summation of the argument on Q&A, Thursday 26th March).
Leaving aside for a moment the fact that Australia, unlike America (the de facto standard of law in the public consciousness), has no constitutionally guaranteed right to freedom of speech, let’s take this idea and think about it for a second.
Following the work of John Stuart Mill, the philosophical father of much of modern thought on liberty, we now understand the right to freedom of speech to be made up of two different rights, each with two parts: The right to hear (both to seek information and to receive that information) and the right to be heard (both to express ourselves and to distribute our expression to people who wish to receive it).
In most of the ‘censorship’ debates, the ‘libertarian’ view (namely that against the proposed filtering system) is that everyone should be able to exercise their right to free speech (as guaranteed by the Universal Declaration of Human Rights, for which Australia voted in favour). Conversely, the ‘authoritarian’ view is that nobody should have the right to publish or distribute material that harms those who are unable to help themselves, namely pro-rape material, child pornography, etc.
Notice the subtle difference? The libertarian argument is about the right to hear, whereas the authoritarian argument is about the right to be heard.
And the clincher? They’re both right.
You see, in almost any discussion of the right to liberty (indeed, even in Mill’s own work, and also in the Universal Declaration of Human Rights), the issue of ‘the harm principle’ comes up. The Universal Declaration of Human Rights probably puts it best:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
In other words, every basic right guaranteed to a person may be curtailed by law in order to stop harm from coming to another person.
This is the reason why we don’t have the right to publish certain kinds of material in Australia, particularly child, rape and snuff pornography. In this country, the right to be heard has already been limited, in accordance with the harm principle, so that publishing child pornography carries a maximum sentence of up to 5 years imprisonment in NSW. The reason behind this restriction is that the production of this material is inherently illegal, and so distribution of the proceeds is similarly illegal, much like purchasing or selling obviously stolen goods.
All with me so far? Basically – making child porn is wrong, distributing child porn is wrong, and they’re both wrong because the material is demonstrably criminally harmful to another person.
Here’s where it gets tricky.
You see, the two filtering strategies proposed by the Government don’t cover just material which is demonstrably harmful to others. The first, deep packet inspection of all Australian internet traffic, has unacceptably high rates of error, both false positives and false negatives, and so covers a fuzzy ball of content, centred at ‘child pornography,’ but stretching out beyond its desired boundaries.
The second strategy is mildly more confusing. The basic idea is that a constantly evolving list of content would be blocked. Unfortunately, there are references to three separate lists of content: namely ‘the ACMA blacklist,’ ‘Refused Classification content’ and ‘illegal Refused Classification content.’ Of these three, only the third, ‘illegal Refused Classification content,’ is an existing standard for material that is demonstrably harmful under Australian Law.
‘Refused Classification content,’ a superset of ‘illegal Refused Classification content,’ is a designation used by the Office of Film and Literature Classification, a government organisation, responsible to the Attorney-General’s Office, that has made decisions about the classification of literature in Australia since 1970. The members of its Classification and Review Boards are public, as are its decisions and the reasons for its decisions. Occasionally it will designate an item RC for illegal reasons – and then possession of that material will become illegal, as will its distribution. Until that point, ownership of material is legal, even if its sale or hire is not.
The first list, however, ‘the ACMA blacklist,’ is (as Senator Conroy likes to point out) a nine-year-old list of websites created by the Howard government that is designed to contain websites that either are or would be refused classification were they to go to the OFLC. The process is secret, and does not involve the OFLC at all. Indeed, the OFLC does not classify websites, but is restricted to film, printed material and video games.
But what does all this waffling on about lists and classification actually mean? Well, here’s my point. Both the rights to hear and be heard are already restricted in Australia. Every person is fully aware of this fact, and it can be seen every time we don’t have sex with children and sell videos of it in an adult store, or fail to purchase magazines filled with photos of a beautiful woman being raped and killed.
There are things that we know to be wrong. They are easily demonstrably harmful, and there is a system in place to tell us that they are such. We don’t consume them because we know that to produce them hurts people who may not be able to help themselves, and we give up a little of our right to hear to give them back their right to be heard.
But we do it willingly. We know what’s going on. We have the right to choose to give up our rights: as long as we understand what’s going on.
So, everybody out there who’s arguing back and forward over this issue, please: stop arguing two separate points! Stop arguing that authoritarians want to stop us from hearing the truth, or that libertarians want to fill the internet with images of vile crimes, and realise that you’re both right! Everybody wants to be connected, and nobody in this debate wants to further the production or distribution of illegal material.
Let’s stop arguing and find the people who are hurting, the people who have had their right to be heard taken away.
Surely that’s what this debate is all about.