Rstuart

"I agree. But to repeat what I said when you brought this up last time, don't think it is relevant. No judge is going to get the opportunity to decide whether it is or isn't. At $11k/day you just remove the link..."

It's not either/or. You remove the link, thus avoiding the fine, and appeal against the decision to issue the notice. If you win, then you've made your legal point, and can restore the link.

Sylvia Else: "appeal against the decision to issue the notice"

There is no provision in the act for appealing the decision. From:

http://www.efa.org.au/2009/03/20/answering-a-few-questions-about-the-leaked-blacklist/

"Additions to the list are not subject to appeal, unlike censorship in other media."

That aside, you assume you know your site is on the blacklist. Let me remind you how this works:

(a) Someone takes objection to the web page, and lodges a complaint to the ACMA.

(b) If the ACMA agrees the page is objectionable, and adds it to the blacklist.

(c) The original complainant is notified of the outcome.

(d) Any filters (eg the free ones downloaded from the Government web site) are updated with the blacklist, and begin filtering the site.

It is unlikely the person who complained will appeal the decision. The owner of the web page is not notified about it. They might notice a reduction in traffic but there is no way to know if it was caused by your list being listed on the blacklist, as the list is a secret.

Rstuart, you're quoting me out of context.

There is a right of appeal against a decision to issue a link deletion notice. That right lies with the recipient of the notice.

See clause 113 of schedule 7 of the Broadcasting Services Act.

Sylvia Else: "Rstuart, you're quoting me out of context."

I miss understood what you were saying. Sorry.

Sylvia Else: "There is a right of appeal against a decision to issue a link deletion notice. That right lies with the recipient of the notice."

If that is the point you were making, then it is not particular relevant is it? I gather from reading the section you quote can appeal the grounds for issuing a link deletion notice - like whether link does really point to a page rated as prohibited content by the ACMA. But I gather from the EFA page you don't get the opportunity to appeal the ACMA's rating of the page. Is that reading wrong?

Rstuart

"I gather from reading the section you quote can appeal the grounds for issuing a link deletion notice - like whether link does really point to a page rated as prohibited content by the ACMA. But I gather from the EFA page you don't get the opportunity to appeal the ACMA's rating of the page. Is that reading wrong?"

One possible ground for appeal (or strictly speaking, seeking review of the decision) is that what is alleged to be a link is not actually a link. As I've indicated elsewhere, the word "link" isn't defined by the legislation (a rather significant deficiency), and if all that's present on the site is the URL with no hyper-link behaviour, then it may not be a "link" for the purposes of the legislation. In that case, posting a copy of the ACMA's reply to a complaint wouldn't amount to posting a link, even if the reply contained the URL.

The ACMA doesn't itself rate content - that's left to the Classification Board. But one ground for issuing a link deletion notice is that there is a "substantial likelihood" that the content would be prohibited content if it were rated by the Classification Board. So another ground for seeking review would be that the ACMA is manifestly incorrect in forming the view that there was the required substantial likelihood.

Yet another ground for seeking review would be that the content simply doesn't fit the definition of either prohibited content or potentially prohibited content. For example, the link deletion notice might have been issued on the basis the content had been given an MA15+ classification, and there's no age restricting mechanism for access. But if the content doesn't meet the test required in 20(1)(c) of schedule 7 to the act, then it would in any case not be prohibited content.

Some combination could apply. Take the abortion pictures. It's unlikely they'd be rated RC or X 18+, and neither 20(1)(c)(iii) or (v) is met. So not potential prohibited content.

Sylvia,

So you are effectively say the EFA is wrong. For now I will have to take your word for it, as I am no expert on how to interpret the law so discussing it seems rather pointless.

Right now this discussion is mostly moot as the blacklist isn't used for anything of great significance. It only becomes important if the blacklist is used as a mandatory filter. If that happens the only way we would know we can't see the abortion web page (short of circumventing the filter) is by being given what is effectively a government secret - ie being told what is on the blacklist. This very case is an excellent example. No one would have known the abortion web page was banned if xFOADx hadn't told us.

So even if the review does work as you describe, it is useless. You can't appeal a decision you don't know about.

You seem very keen on defending censorship laws. When we have had obviously appalling outcomes, such as the cartoon case or the You Tube case, or this link case, your answer is always "the law has been misapplied and if brought before a judge it would be fixed". This ignores the obvious harm that has already been done - reputations ruined, personal finances devastated, time wasted by our police and judicial system. These outcomes are a price we have to pay for censorship. They occur because we can't apply the law perfectly - even if the law itself is perfect its application will never be. Thus the harms can't be "fixed" by judicial review as you seem to imply. The question then becomes "what do we get in return for paying that price?" And your answer would be?