ACMA Prohibited Links: where does the liability fall?

March 20, 2009 — 8 Comments

Is it illegal for Australians to link to the alleged ACMA blacklist on Wikileaks?

Here’s ACMA quoted at

ACMA threatens fines of up to $11,000 a day for linking to sites on its secret censorship blacklist

I’m not a lawyer, so I could be wrong, but is it actually illegal for individuals to link to the list?

The Communications Legislation Amendment (Content Services) Act 2007 which details Schedule 7 of the Broadcasting Act and the links offense refers to “service providers” in Section 62 and I can find no reference to individuals.

I make the query because when ACMA went after a link to prohibited content on Whirlpool, they didn’t go after Whirlpool or the person who posted the link, they went after the web host. From The Oz

On March 10, ACMA issued Sydney web hosting company Bulletproof Networks with an “interim link-deletion notice” for allowing its customer, the Whirlpool internet community website, to post the link to an anti-abortion web page blacklisted by the regulator.

This doesn’t negate the fact that sites hosting links to prohibited content under the act can and are deemed prohibited themselves, only that the individuals may not be liable under the Act for placing the link, only the web hosts who are hosting the link.

Personally I haven’t linked to it, although I commend those that have. Ultimately I don’t want any site I own on the Governments blacklist for commercial reasons, so it’s a risk I’m not willing to take, because despite possibly no individual liability, sites can and will be banned.

If anyone knows differently, let me know, I could be wrong here, but this is how I read it.

Update: it could possibly be argued under different parts of the act (or a different act) that the act of linking is the promotion of illegal material and may be illegal, but even in this case, the $11,000 fines relate to “service providers” and not individuals.