Bills Digest No. 179  1998-99 Broadcasting Services Amendment (Online Services) Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Broadcasting Services Amendment (Online Services) Bill 1999

Date Introduced: 21 April 1999

House: Senate

Portfolio: Communications, Information Technology and the Arts

Commencement: On Royal Assent

 

Purpose

To establish a framework for the regulation of the content of online services. The legislation seeks to:(1)

  • provide a means for addressing complaints about certain Internet content
  • restrict access to certain Internet content that is likely to cause offence to a reasonable adult and
  • protect children from exposure to Internet content that is unsuitable for children.

Background

Reports and Investigations

The proposals to regulate Internet content which are currently embodied in the Bill are not new.

In October 1993, the Senate Select Committee on Community Standards (SSCCS) acknowledged the 'complex regulatory problems' involved in the availability of pornographic and ultra-violent material on bulletin boards, accessed from overseas sources via telephone lines. The Committee urged 'censorship Ministers to give consideration to immediate remedial measures'.(2)

In 1994, the Attorney-General and the Minister for Communications and the Arts formed a taskforce (the BBS Task Force) to investigate the regulation of computer bulletin boards. This Task Force reported in October 1994. Industry bodies strongly opposed the BBS report and in April 1995 the SSCCS held hearings to discuss the reports findings. In July 1995 the Government published a consultation paper on the regulation of on-line services.

In August 1995 the SSCCS launched its own inquiry in the regulation of computer online services. In November 1995 it recommended that 'it should be an offence to use a computer service to transmit, obtain possession of, demonstrate, advertise or request the transmission of material equivalent to the RC, R and X categories.'(3) The Committee also recommended that a system of self-regulation involving codes of practice (including an independent complaints body) be instituted.(4)

In July 1995 the Minister for Communications and the Arts directed the Australian Broadcasting Authority (ABA) to investigate the content and possible regulation of online services. The ABA reported in June 1996. It recommended that industry codes of practice be developed by on-line service providers within a self-regulatory framework. The main elements of this framework were:

  • the identification of matters to be included in the codes of practice which would provide community safeguards, including complaints procedures
  • the registration of codes with the ABA after a period of public consultation
  • the monitoring of the codes and their effectiveness by the ABA.(5)

In 1997 the SSCCS assessed developments since the ABA report and made the following recommendations:

  • that it be an offence to use a computer service to transmit or possess material that would be rated RC (Refused Classification) or restricted under the National Classification Code
  • that there be an independent complaints handling body
  • that the industry be required to develop codes of practice
  • that a taskforce for on-line labelling be instituted
  • that pin numbers be mandatory for those who wish to access restricted material.(6)

Regulatory Principles and Developments

On 15 July 1997 the Government announced the principles for a national approach to the regulation of the content of on-line services. In their Media Release on the subject, the Attorney-General and the Minister for Communications made the following points:

  • material accessed through on-line services should not be subject to a more onerous regulatory framework than 'off-line' material such as books, videos, films and computer games.
  • The framework will balance the need to address community concerns in relation to content with the need to ensure that regulation does not inhibit industry growth and potential
  • On-line service providers were often not in a position to be aware of all material transmitted through their service, and cannot be held responsible in every case for material they have not created.

The Ministers noted that the principles were consistent with the ABA's recommended approach to on-line regulation.(7)

In June 1997 an amendment to section 171 of the Broadcasting Services Act 1992 was passed by Parliament. This enabled the ABA to expand its work in the area of on-line services. In August 1997 the Minister directed the ABA to investigate matters relating to the future regulatory arrangements for on-line services. It reported in December 1998 on progress in the following areas:

  • draft industry codes of practice
  • the establishment of hotlines to enable the reporting of illegal content to regulatory authorities
  • research on community concerns about on-line services
  • content labelling in Australia and overseas
  • educational strategies for effective use of on-line resources
  • international developments regarding the regulation of the content of on-line services.

Technical Considerations(8)

In June 1998 the CSIRO Division of Mathematical and Information Sciences released their report Blocking Content on the Internet: a Technical Perspective, which was commissioned by the National Office for the Information Economy.

This report examines the technical feasibility of preventing consumer access to on-line materials. Blocking may occur in two ways:

  • by specifying the location address or news group identifier at web sites ('application level blocking'), and
  • by examining individual transmissions (packets) to exclude some network destinations.

The report studies these techniques and concludes that the former proposal, while feasible, is easily circumvented. The latter method is too indiscriminate and would serve to isolate Australia from global highways. Note that while telephone systems involve dedicated line circuits, data systems like the Internet operate by the transfer of separate information packets.

In the former case of 'application level blocking', Internet Service Providers (ISPs) would prevent client access to some services by directing access through a proxy server to vet requests. ISPs use proxy servers to store commonly accessed web pages in order to reduce network usage. However, clients may use non-standard addresses, access renamed sites, utilise translation services or some other means to bypass the proxy server. As well, not all users access the Internet through ISPs. The use of proxy servers creates some unreliability to service levels and some software programs and may involve ISPs in additional and ongoing monitoring costs. The report noted that with over 600 ISPs across Australia, the task of maintaining a site black list would not be trivial.

The second technique of packet level blocking would require action by Backbone Service Providers that provide the limited number of international Internet gateways to Australia. Use of this means necessarily blocks access and e-mail to an entire web site and not just individual web pages, eg. a large American ISP with many clients would not be accessible here. The individual information packets may actually originate elsewhere for transit through Australia, so any blocking could affect foreign transactions. There are also techniques for clients to bypass packet blocking or through the use of dedicated lines. Note that all of the above mentioned techniques require some agency to identify objectionable materials in the first instance, which, given the dynamic nature of the Internet, is no small task, especially as most content resides overseas.

As an alternative, the report suggests the use of clean proxy filters or rating services. The clean service includes a list of permitted location addresses for consumers to access. A best effort service rates sites according to some prescribed criteria. Both involve ISP costs or some joint agreement to pursue established rating criteria.

The CSIRO report is now almost one year old, and it is possible that it may be superseded by technological or programming developments.

The Internet in Australia

In its latest release on the subject the Australian Bureau of Statistics (ABS) reported that in November 1998:

  • 18.6 per cent of all households had home Internet access
  • 27.3 per cent of those households consisting of a married couple and children had access, as did 41.5 per cent of households with incomes greater than $66 000, and
  • within the last 12 months, 31 per cent of Australia's total adult population and 61.6 per cent of those aged 18-24, accessed the Internet.(9)

Figures for the use of the Internet by children are less recent. In February-May 1998 257 000 children aged 5-17 years (or 15 per cent of children who regularly used a home computer) engaged in Internet based activities. This was an enormous increase from February-May 1996, when only 35 000 children were engaged in such activities.(10)

The most recent ABS figures for the Internet services industry relate to 1996-97. It should be noted that the number of households accessing the Internet has since doubled and it is now estimated that there are about 600 ISPs in Australia. In 1996-97 there were 306 businesses operating as Internet service providers: they employed 1646 people, had a net worth of $ 46.9 million and generated $ 160.4 million in income, of which $ 97.4 million came from households.(11)

 

Main Provisions

The principal amendment is to the Broadcasting Services Act 1992 (BSA). Item 10 inserts a new schedule 5 to that Act for the purpose of regulating online services.

Prohibited Content

An important working definition for the purposes of the new schedule is that of 'Internet Content'. Internet Content is defined in Clause 2 as 'information that is kept on a data storage device; and is accessed or available for access, using an internet carriage service but does not include information that is transmitted in the form of a broadcasting service.' It has been suggested that this definition is too broad in that it can potentially capture private e-mail.(12) The Government has said that it was not possible to put in a specific exclusion for e-mail because of the difficulty of defining one-to-one e-mail separately from e-mail with wider distribution. Newsgroups and bulletin boards will be captured by the definition. The Second Reading Speech(13) asserts that the inclusion of one-to-one e-mail within the regulatory scheme is of little practical significance because it is 'highly unlikely to come to the attention of the ABA because of the private and usually password protected nature of the communication.'

The proposed regime utilises the National Classification Board guidelines for film to classify Internet content. Clauses 10 and 11 ensure that Intent content is to be classified in a corresponding way to the way in which a film or computer games would be classified under the Classification (Publications, Films and Computer Games Act) 1995. The approach is driven by the view that convergence is occurring between the Internet and television.(14)

'Prohibited content' is defined in Part 3 of the proposed new schedule. The definition of prohibited content varies depending on whether the content is hosted within Australia or overseas. Clause 8 defines prohibited content as Internet content hosted in Australia that has been classified RC or X by the Classification Board or Internet content that has been classified R and where access to the content is not subject to a restricted access system.

A restricted access system is defined in clause 3. Essentially, it is a specified access system declared to be a restricted access system by the ABA. Pending action from the ABA, all R-rated material hosted in Australia will be prohibited content. This treatment is designed to be consistent with R-rated material that is available through Pay-TV services.

If the Internet content is hosted outside Australia, it is prohibited only if it has been classified RC or X by the Classification Board. If R rated content is hosted overseas, it will not be prohibited content for the purpose of the new schedule. Commentators have questioned the effectiveness of the legislation in that it provides no controls at all on R-rated content hosted overseas.(15) The narrower scope would seem to be driven by a concern to limit the workload of the ABA and allow it to focus on material rated X or RC.(16)

The legislation also gives the ABA powers over 'potential prohibited content'. That is, Internet content that has not been classified by the Classification Board but where, in the view of the ABA, there is a substantial likelihood that the Internet content would be prohibited if it were classified (clause 9).

Who is Regulated?

The regime applies to Internet Service Providers (ISPs) and Internet Content Hosts (ICHs). While these services may be provided by the same entity, the activities can be distinguished in that ISPs offer access to the Internet whereas an ICH may only host content available on the Internet on behalf of other parties without providing an Internet connection. State and Territory legislatures will have primary responsibility for regulating content providers (proposed Part 9).

An ISP is defined in clause 6 as a person who supplies or proposes to supply an Internet carriage service (that is a listed carriage service under the Telecommunications Act 1997 that enables end-users to access the Internet) to the public. The definition would appear to exclude institutions such as libraries, which provide access to the Internet through the provision of computer terminals from being captured as ISPs. However, the clause does provide the opportunity for the Minister to extend those covered by the definition by Regulation.

The Role of the ABA

Part 4 deals with the role of the ABA in the proposed content regulation regime. The regime is largely driven by the complaints procedure in Division 1. Clause 20 provides that a complaint may be made to the ABA if a person believes that an ISP is supplying an Internet Carriage Service that enables end-users to access prohibited content, or potential prohibited content. A complaint may also be lodged if a person believes that an ICH is hosting prohibited content, or potential prohibited content. No complaints about Internet content may be made until 1 January 2000 to allow the industry and the ABA to prepare for the new regulatory regime.

Clause 21 enables complaints to be made by a person if an ISP or ICH has contravened an industry code or online provider rules. Clause 27 protects complainants from civil liability that may arise from making a complaint or statements to the ABA. A complaint may be made by a resident individual, a body corporate carrying on activities in Australia or the Commonwealth, a State or a Territory (clause 23).

Division 2 governs ABA investigations. Under clause 24, the ABA must investigate all complaints unless the ABA is satisfied that the complaint is frivolous, vexatious, not made in good faith or made for the purpose of undermining the regulatory regime. Complainants are notified by the ABA of the results of the investigation.

The ABA's role in regulating online content need not be passive. Clause 25 provides that the ABA may investigate whether there have been breaches of the regulatory framework on its own initiative. However the Explanatory Memorandum(17) states that it is not intended that the powers bestowed by clause 25 will be used actively. Rather its intent is to ensure that the ABA has the capacity to follow up on information received outside the complaint process in division 1. The ABA may for example, wish to commence an operation based on information provided by foreign regulators. Clause 26 gives the ABA broad power to conduct investigations as it sees fit.

Division 3 deals with the action the ABA is required to take against prohibited content that is hosted in Australia. Under clause 28, if the ABA is satisfied that Internet content hosted in Australia is prohibited, the ABA must give the ICH a final take-down notice directing the ICH not to host the prohibited content. In the event that the material has not been classified and the ABA believes that there is a substantial likelihood that the content would be classified as RC or X by the Classification Board, the material in question will be potentially prohibited content. In such a case, the ABA must issue the ICH with an interim take-down notice and request the Claissification Board(18) to classify the Internet content. The Bill does not require the ABA to issue an interim take-down notice in respect of material that it believes would receive an R classification. This decision appears to be motivated by a desire to limit the ABA's workload.(19) Nevertheless clause 28(2)(b) does require such material to be referred to the Classification Board.

If the Internet content is found to be prohibited the ABA must issue the ICH with a final take-down notice. Final take-down notices in relation to R rated content must be revoked if restricted access system is subsequently implemented (clause 30).

It has been submitted that the Bill denies content providers natural justice. There is no provision requiring the notification of content providers and they are not given an opportunity to respond before material is subject to a take-down notice. While it is the Government's intention that content providers should continue to be regulated by State and Territory law, the IIA has asserted that take-down notices should in the first instance be directed at content providers.(20)

As the ABA complaints process is public, there is a danger that ABA investigations could prejudice a criminal investigations. To deal with this possibility, clause 29 provides the ABA may defer action on prohibited content on the advice of a member of an Australian Police force.

Clause 34 is an anti-avoidance provision. The ABA may issue a special take-down notice where it is satisfied that material is substantially similar to content which is subject to an interim or final take-down notice. This provision is designed to accommodate the possibility that Internet(21) content may be modified in a minor way in an attempt to defeat the regulatory regime.

Clause 35 is related to the enforcement provisions in Part 6. It provides that an ICH must comply with an interim take-down notice, final take-down notice or special take-down notice 'as soon as practicable or in any event within 24 hours of notice being given'. It also provides that an ICH must comply with an undertaking given and accepted under clause 31. The four subsections of clause 35 constitute part of the online provider rules (see below). Breach of these rules renders an ICH liable to the offence provisions in clause 78 and/or clause 82. Concern was expressed before the Senate Select Committee on Information Technology (SSCIT) that the 24 hour deadline is unrealistic and that large content hosts would not be able to remove material from their servers in time.(22)

The focus of division 4 is most significant in terms of the volume of potentially prohibited content on the Internet. It deals with regulatory activity following from complaints about prohibited content hosted outside Australia. The regulatory focus of this division is on the ISP section of the Internet industry. Under clause 37 if the ABA is satisfied that Internet content hosted outside Australia is prohibited content or potential prohibited content, the ABA must:

  • if the content is sufficiently serious, notify an Australia Police force, or another body that the ABA is authorised to disclose to(23)
  • if a code is registered or a standard is determined ISPs should be notified of the content, or
  • if neither a code nor a standard is in force, the ABA must issue a standard access-prevention notice directing ISPs 'to take all reasonable steps to prevent end users from accessing the content'(clause 37(1)(c)).

The issue of what was required by the phrase 'all reasonable steps' was addressed extensively during the hearings of the SSCIT. The Chairman of the ABA, Professor Flint stated that 'in the absence of a code or a standard, we (the ABA) would expect that provider to apply the latest technology to take action.'(24) While the Minister's media release(25) states that 'reasonable steps' should be 'technically feasible and commercially viable', these words do not appear in the Bill. The Explanatory Memorandum(26) suggests that guidance should be drawn from proposed new subsection 4(3) of the BSA. Subsection 4(3) provides that regulation should not impose 'unnecessary financial and administrative burdens' on ICHs and ISPs; readily accommodate technological change; and encourage the application and development of Internet technologies. This statement of Parliamentary intention is supposed to inform not only the meaning of reasonable steps in clause 37(1)(c) but also provisions regarding filtering in industry codes and standards.

Clause 38 mirrors clause 29. It provides that the ABA may defer action in relation to prohibited content or potential prohibited content hosted outside Australia if it is satisfied that it would prejudice a criminal investigation.

Clauses 44 is an anti-avoidance measure. The ABA may issue a special access-prevention notice where it is satisfied that an ISP is allowing end-users to access Internet content which is substantially similar to material subject to a standard access prevention notice under clause 37. Under clause 45, ISPs must comply with access-prevention notices within 24 hours.

The role of the industry

The Bill adopts to a co-regulatory approach to content regulation. ISPs and ICHs are encouraged to develop codes of practice that address the community concerns about Internet content. If these codes are not developed or are deemed inadequate, the ABA is empowered to develop mandatory standards for the industry. Part 5 of the schedule deals with these matters.

Clause 55 states the Parliament's regulatory policy with respect to industry codes. A single code should be developed by the ICH section of the industry and no more that than 2 codes should be developed by the ISP industry. However one of these codes should deal exclusively with matters raised in clause 56(2). This section deals with procedures to be followed by ISP's when notified of overseas hosted content that is prohibited or potentially prohibited. The clause also instructs the ABA to make reasonable efforts to ensure that an industry code is registered before January 1 2000.

Clause 56 defines the matters that are to be dealt with by ISP and ICH codes and ABA standards. They include:

  • procedures for ensuring that online accounts are not provided to children without the consent of a parent or responsible adult
  • giving parents and responsible adults information about how to supervise and control children's access to Internet content including information on the use of Internet content filtering software
  • procedures to be followed in order to inform producers of Internet content about their legal responsibilities in relation to that content
  • telling customers about their rights to make complaints under clause 20 or 21
  • action to be taken to assist in the development and implementation of Internet content labelling technologies, and
  • procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered Internet carriage service.

Clause 56 (2) provides that there should be an ISP code or standard which makes provisions in relation to:

  • the formulation of a 'designated notification scheme' that will deem an ISP to have been notified of a notice through, for example, its publication in a national newspaper or on the Internet, and
  • technical procedures to be followed by ISPs to filter prohibited Internet content following notification.

Codes must be registered by the ABA if they comply with the checklist of matters contained in clause 58. These matters relate to whether there has been appropriate consultation in the development of the code and whether the code addresses the issues required by the legislation. Industry codes are enforceable by the ABA under clause 62. If an ISP or ICH fails to comply with an instruction by the ABA to comply with the relevant code, they will be gulty of an offence under clause 78. Individuals can be fined up to $5500 and corporations up to $27500. Clause 82 provides that these fines accumulate for each day that a person is in breach.

The Bill provides for a number of circumstances where the ABA may impose an industry standard, namely where:

  • a request for an industry code is not complied with (clause 64)
  • where no industry body or association exists (clause 65)
  • an industry code is found to be totally deficient (clause 66), and
  • an industry code is partially deficient (clause 67).

Standards made by the ABA are disallowable instruments. Contravention of an applicable standard renders a person guilty of an offence under clause 78. Evidence presented before the Senate Select Committee indicates that it is highly likely that an ISP industry code will be in place by January 1 2000.(27)

Part 6 deals draws together the requirements of ISPs and ICHs under the Bill as 'online provider rules'. The purpose of this is to tie them in with the enforcement provisons.

The online provider rules are set-out in clause 75. They require that:

  • an ICH must comply with take-down notices within 24 hours
  • an ICH must comply with undertakings given to and accepted by the ABA
  • an ISP must comply with access prevention notices within 24 hours
  • ISPs and ICHs must comply industry standards or ABA directions to adhere to the relevant industry code, and
  • ISPs and ICHs must comply with online provider determinations made by the ABA under clause 76.

The ABA may, but is not required to, issue a formal warning to a person contravening the online provider rules (clause 80). The ABA has the additional power to apply to the Federal Court seeking an order that an ISP or ICH cease operations if it believes that the entity in question is not complying with an online provider rule (Clause 81).

Clause 84 protects ISPs and ICHs from civil proceedings (eg breach of contract, defamation) arising from activities done in compliance with an industry code, an industry standard or ABA notices to cease hosting Internet content or take reasonable steps to prevent end-user access.

Clause 85 protects the ABA, the Classification Board and the Classification Review Board and associated staff from criminal proceedings in relation to information or material used in connection with the performance of duties under the schedule.

Part 9 of the new schedule seeks to draw demarcation lines between matters of Commonwealth, State and Territory responsibility. Clause 87 establishes a regime where the Commonwealth will regulate ISPs and ICH, while the States and Territories will have responsibility for content providers and users. Clause 87 protects ICHs and ISPs from State and Territory law or common law.

Part 10 provides for the review of ABA decisions under the proposed new Schedule 5 by the Administrative Appeals Tribunal.

Schedule 2

The Crimes Act 1914 already provides a modest form of regulation of Internet content. Section 85ZE(1)(b) prohibits the use of a carriage service in such a way as would be regraded by reasonable persons as being, in all the circumstances, offensive. In recognition of the detailed regime put in place by Schedule 1 of the Bill, Schedule 2 provides that paragraph (1)(b) does not apply to the use of a carriage service to carry Internet content.

The Cost of the Regime

Clause 18 provides that the ABA is liable to pay fees in respect of the classification of Internet content. The Explanatory Memorandum(28) estimates that the ABA will have to pay around $1.5 million p.a. to the Classification Board(29). In addition, the government has undertaken to establish a community advisory body. The Second Reading Speech(30) states that this body will 'monitor material, operate a `hotline' to receive complaints about illegal material and pass this information to the ABA and police authorities, and advise the public about options such as filtering software that are available to address concerns about online content.' The community advisory body is not established in this legislation however the Explanatory Memorandum(31) estimates that it will cost $0.2 million to establish and require $0.5 million in annual funding.

Concluding Comments

Evidence given before the Senate Select Committee indicated broad support for the objective of protecting children from Internet content that is unsuitable. The development of industry codes in particular received strong endorsement. Many submissions however questioned whether the Bill was technically feasible, while others said that it would impose 'collateral' damage by censoring acceptable sites or degrading the Internet by slowing it down(32). It is beyond the scope of this digest to make an assessment of these technical issues. Several points however may be made about the regulatory framework proposed by the Bill.

R-rated material is treated inconsistently. If it is hosted in Australia it will be deemed prohibited content unless it is subject to a restricted access system. If it is hosted overseas it will not be prohibited. Although it not possible to get precise numbers, the contention that the majority of R rated material is hosted overseas seems reasonable.(33) The distinction appears to be motivated by a concern to limit the financial and administrative burden on the ABA and the industry.

The cost of running the regime is difficult to quantify because it is largely dependent on the number of complaints received by the ABA. The explanatory memorandum admits that $1.5 million is a conservative estimate.

Finally, it is not clear that this Bill will address community concerns about Internet content. This is because the Bill does not indicate with any degree of certainty whether ISPs will be required to filter foreign prohibited content. While the legislation requires ISPs to take 'reasonable steps' to prevent end users from accessing prohibited content, these steps are not defined. While the Bill does provide a flexible framework to employ appropriate technology as it becomes available, it remains to be seen what level of cost or degree of Internet degradation will render a filtering technique 'unreasonable'.

The regulatory framework provided by the Bill is to be reviewed in three years.

Endnotes

  1. These three goals are to be inserted into the objects section (section 3) of the Broadcasting Services Act 1992.

  2. SSCCS, Report on Video and Computer Games and Classification Issues (October 1993).

  3. The Office of Film and Literature Classification's Cinema and Video Ratings Guide describes the characteristics of material rated R, X and RC in the following terms:

R

Material considered likely to be harmful to those under 18 years and/or possibly offensive to some sections of the adult community warrants an R classification.

Language: There are virtually no restrictions on language on R films.

Sex: sexual intercourse or other sexual activity may be realistically implied or simulated.

Violence: highly realistic and explicit depictions of violence may be shown, but not if unduly detailed, relished or cruel. Depictions of sexual violence are acceptable only to the extent that they are necessary to the narrative and not exploitative.

Other: drug use may be depicted, but not in an advocatory manner. Extreme horror special effects usually warrant an R..

X

No depiction of sexual violence, co-ercion or non-consent of any kind is permitted in this classification. Material which can be accomodated in this classification includes explicit depictions of sexual acts between consenting adults and mild non-violent fetishes.

RC

Any film or video which includes any of the following will be refused classification:

depictions of child sexual abuse, bestiality, sexual acts accompanied by offensive fetishes, or exploitative incest fantasies;

unduly detailed and/or relished acts of extreme violence or cruelty; explicit or unjustifiable depictions of sexual violence against non-consenting persons;

detailed instruction or encouragement in:

i matters of crime or violence

ii. the abuse of proscribed drugs.

  1. SSCCS, Report on Regulation of Computer On-Line Services Part 2 (November 1995), p iii.

  2. ABA, Investigation into the content of on-line services (June 1996). See ABA Update (No.45, July 1996) for a summary of the report.

  3. SSCCS, Report on Regulation of Computer On-Line Services Part 3 (June 1997), p. iii.

  4. Joint Media Release, National framework for on-line content regulation (15 July 1997). A complete copy of the principles can be obtained at http://www.dcita.gov.au/.

  5. This section was contributed by Matthew L. James of the Science, Technology, Environment and Resources Group.

  6. ABS, Use of the Internet by Householders November 1998 (March 1999).

  7. ABS, Household Use of Information Technology1998 (November 1998), p. 15.

  8. ABS, Telecommunications Services 1996-97 (January 1999).

  9. Mr Patrick Fair, Chair Internet Industry Association, Senate Select Committee on Information Technology (SSCIT), Evidence, 27 April 1999, p. 38.

  10. Senate Hansard, 21 April 1999, p. 3462.

  11. This notion is subject to some debate. Technological developments, such as Telstra's recent launch of a high speed Internet carriage service that promises smooth delivery of video and sound, give support to the proponents of convergence. See K. Crawford, 'Telstra revs up its copper network', Sydney Morning Herald 5/5/1999. Others however, argue that access to online content is discretionary unlike television and that the classification regime for publications would be more appropriate. It is also contended that the Internet has more in common with postal and telephone systems. See Electronic Frontiers Australia, 'The Internet is not Television', Media Release, 25 April 1999 and J Casmir, 'Stop Police' Sydney Morning Herald, 8 May 1999.

  12. Electronic Frontiers Australia, 'The Effects on Content Providers', www.efa.org.au.

  13. Before the SSCIT, Ms Holthuyzen, Deputy Chief Executive Officer of the National Office of the Information Economy stated that 'the government made a judgment in relation to the R material. I think it was a balance between the nature of the R material and the potential, I guess, administrative costs if there were many more complaints about R material because it is of much greater volume. It was considered to be a less bad category and so the effort was put into the RC and X categories', Evidence, 3 May 1999, p 318. This comment was made in a discussion about the fact that the legislation does not contain interim take-down orders with respect to R-rated material. However it also appears to explain why R-rated content hosted overseas is not prohibited.

  14. See page 34.

  15. The Classification Board is bound by clause 28(3) to comply with the ABA's request.

  16. The Explanatory Memorandum states that 'if interim take-down notices were to apply to
    R-rated material, this would be likely to greatly increase the ABA's administrative costs and industry's compliance costs.'P. 35.

  17. Internet Industry Association, SSCIT, Evidence, 27 April 1999, p. 35, 39.

  18. Internet Industry Association, SSCIT, Evidence 27 April 1999, p. 40.

  19. AOL Bertelsmann Online Services, SSCIT, Evidence, 3 May 1999, p. 245. Internet Industry Association (IIA), SSCIT, Evidence, 27 April 1999, p. 40.

  20. Presumably this may include foreign regulators.

  21. Australian Broadcasting Authority, SSCIT, Evidence, 27 April 1999, p. 20.

  22. Minister for Communications, the Information Economy and the Arts (Senator Alston), 'Legislation introduced to protect children online', Media Release, 21 April 1999.

  23. See page 41.

  24. The Internet Industry Association has already produced three drafts of a code of practice. The ABA Deputy Chair expressed the view that the IIA code '75 per cent to 80 per cent there as an industry service provider code' and that he was very confident that a code would be in place by Jan 1 2000'. SSCIT, Evidence, 27April 1999, p. 11.

  25. See page 2-3.

  26. The OFLC is required to recover the costs of providing classification services.

  27. Senate Hansard, 21 April 1999, p. 3641.

  28. See page 3.

  29. J Reilly and D Tebbutt, 'Filtering holds back economic benefits', The Australian, May 4 1999. L Martin, 'Eros hops into bed with anti-porn senators' Sydney Morning Herald, 4 May 1999.

  30. A recent Sydney Morning Herald article asserted that more than 90 per cent of online material is generated overseas. L. Martin, 'Alston uploads Internet porn-blocking law', Sydney Morning Herald, 22 April 1999.

 

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Mark Tapley, Kim Jackson and Matthew James
12 May 1999
Bills Digest Service
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