Research Paper 35 1995-96

Can the Internet be regulated?

Helen Roberts
Consultant to
Law and Public Administration Group

Contents

Major Issues

Introduction

What is the Internet

• There is bipartisan policy for the implementation of wide access to the Internet

• The Internet can enhance democracy

• The self-regulatory culture of the Internet

• Access to the Internet

• The negative aspects of the Internet

Why the Internet is hard to regulate in practice

• The Internet lacks centralised control

• Encryption is widely used on the Internet

• The world wide nature of the Internet

• Anonymity and pseudonymity (hide the identity of the sender)

• Anonymity

Problem issues relating to the Internet

• Pornography

• Internet provisions in the US

• Copyright
  • Transmission right

  • Fair dealing

  • The international environment for copyright

• Citizens using the new medium require a less complex law

• Information disclosure and the right to privacy
  • Information disclosure

  • Privacy

• Censorship of private email

• Defamation

  • Simplified uniform defamation laws are needed

• Freedom of Speech

• Liability of Internet Service Providers
  • Cases suggest a lack of understanding of their functions

• New approaches to remedies may be needed
  • Self-help remedy - reply by the plaintiff

  • Apology and retraction by defendant

  • A code of practice for ISPs

• Technological solutions

• More use of alternative dispute resolution (ADR)

• Cyberspace virtual courts

• Further international cooperation

Conclusions

Endnotes

Glossary of Internet and technical terms

Major Issues

There is bipartisan policy for the provision of wide access to the Internet. The Internet can enhance democracy, provide people with wide access to information and promote their membership of groups with similar interests.

It is necessary to understand how the Internet differs from familiar media communication technologies in order to understand the practicability of regulating it. The Internet is not a single thing. It is more like a set of communication standards that let computers talk to each other. It provides a wide range of types of communication and has been described as the 'anything, anytime, anywhere' network.

The Commonwealth would have power over the Internet in Australia. Under s 51(v) of the Constitution it has power in respect of 'postal, telegraphic, telephonic and other like services'. The phrase 'other like services' indicates the power was designed to cover new technological developments.

However the Internet will be hard to regulate in practice because of

• the lack of centralised control

• the difficulty of controlling the spread of information

• the availability of encryption

• the world-wide nature of the Internet

• the difficulty of determining the originator of information which is anonymous or pseudonymous

• the unfamiliarity of policy makers with the technology and the fluid nature of the technology

There is concern that children could gain access to material via the Internet, which would otherwise be unavailable to them because of their age. The impression has been created that hard core pornographic material is easy for children to find on the Internet. However, Internet experts report it is hard to access such material. A seven-hour search by the Office of Film and Literature Classification (OFLC) for child pornography found no material of this nature. However, material that is unsuitable for minors is more readily available.

Existing case law has failed to acknowledge that Internet Service Providers' (ISPs) are unable to monitor material effectively. Content liability should be focussed on the originator of the offending material and individuals who access that material with the knowledge that the material is offensive. ISPs should only be liable where it can be shown that they

• have full control over the material on their service, or

• were aware of the offending material

• and were able, by lawful and practical means, to remove that material from their service, but did not do so within a reasonable time.

A code of practice for ISPs is needed. Legislation currently being considered by the various Australian states and territories provides an incentive for establishing this. It proposes offences for ISPs who knowingly provide access to objectionable material or provide minors with access to material which is restricted under the existing classification regime. The legislation is expected to establish compliance with a code of practice as a defence to prosecution.

Legislation on pornography and copyright should be technology neutral and not effectively more restrictive in the Internet environment than for other communication technologies.

This paper recommends that technological solutions would be most effective in censoring material unsuitable for children. Not only should blocking devices be available as an optional extra but a code of practice or legislation could require that each commercial service offer a channel blocking feature to parents.

Setting up a 'refused access list' would be a possible strategy to block adult access from offending overseas sites containing material that would be refused classification in Australia. Australian ISPs with international access would be required to filter out data packets from addresses on that list.

The Internet raises strong right-to-privacy issues, as users' communications can easily be monitored. The House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that the protections of the Privacy Act 1988 should be extended to the private and public sectors alike by means of a national privacy code. This code should address Internet privacy issues.

Citizens using the new medium require less complex law. Electronic communication provides a medium for publication by ordinary people who were not previously able to publish widely. Problems for them are particularly likely to arise with copyright and defamation law. There is already a commitment towards simplification of the law in the Justice Statement.

Simplified, uniform, defamation laws are needed in the context of the Internet. The Justice Statement says uniform national defamation laws would 'best ensure equal access to justice for all Australians'. Legislation less specific to particular media is required, otherwise Internet users may have less protection than with established media. In a western democracy like Australia, there will always be tension between freedom of speech and an individual's right to be protected from defamation. The free speech culture of the Internet, in combination with the implied freedom of communication, should tip the balance in favour of free speech. However, new approaches to remedies may be needed. The law of defamation should take advantage of the technological capabilities of the Internet, and incorporate existing self-help approaches - for example, a defamed person can send a reply to the same readers who read the offending material.

Internet development in Australia was initially mainly in the research and educational sector. These users have developed a strong tradition of exchanging information freely. The Copyright Law Review Committee is examining ways in which the Copyright Act 1968 (Cth) can be strengthened, simplified and drafted in plain English. Strengthening raises two major concerns: the recommendation of a transmission right, and that defences against infringement such as fair dealing and educational use should be retained. If 'pay per view usage' were implemented, citizens could lose access to information that they previously had some access to in hard copy format.

There could also be Cyberspace virtual courts, which would be more attuned to network customs and would be able to mete out punishment enforceable in the Internet. The need for speed in Internet cases suggests more use of alternative dispute resolution.

The Internet will require that some issues (such as anonymity of publishers) be resolved on an international basis. In the U.S. the legal academic Henry Perritt has proposed that a model code of cyberspace law be enacted by the United Nations.

Introduction

What is the Internet

It is necessary to understand how the Internet differs from familiar, media-communication technologies in order to understand the practicability of regulating it. The Internet is not a single thing. It is more like a set of communication standards that let computers talk to each other. It provides a wide range of types of communication and has been described as the 'anything, anytime, anywhere' network.(1) It is an interactive medium providing a range of decentralised communication, unlike older one-way media which push information outwards from the centre. Information is not so much distributed by a publisher as actively obtained by a user.(2)

Digital networks allow ready access to information regardless of where in the world it is stored. Users may place information on bulletin boards, access information, send email(G), enter the subcultures of the MUDs(G) and IRC(G) channels, download(G) information or participate in the computer-mediated social groups known as virtual communities. Information is not only available to its original recipients but continues to be accessible to others through the use of such tools as Web searchers,(G) through hypertext(G) links or through keyword searching of archived communications. The Internet removes the tyranny of distance from communication thus allowing new relationships to form between people and information. It has created a new realm - 'Cyberspace'(G) (3)- that is less subject to the physical constraints affecting the print medium.

There is bipartisan policy for the implementation of wide access to the Internet

The advantages of the Internet across Australia were the subject of the Governor-General's 1995 Australia Day message.(4) The Prime Minister, John Howard, supports 'an overarching strategy to provide public on-line access to a wide array of government services and information ... including the Internet.'(5) The former Prime Minister, Paul Keating, has said the public must have access to the national information infrastructure in the same way it does to water, electricity or public transport.(6) He announced that the Government will establish the program Accessing Australia based on the concept of 'community access points'.(7)

The Internet can enhance democracy

Democratic governments advocate the advantages of a plurality of sources of information and opinion.(8) Traditional media ownership has become concentrated and a handful of people decide what information is made available.(9) Whereas it once seemed that 'each new form of technology has led to further inequalities in access',(10) the Internet can enhance representative democracy. The Internet can amplify the power of the people to gather information, sway public opinion and guide policy-making. Guidance on how to do this is available on the Internet.(11) In the US, 150 House Members and more than 60 Senators now offer public email access to their offices and the volume of messages from constituents has more than tripled from 185,000 to 636,000 between January and October 1995.(12)

The Internet provides wide access to information and to membership of groups with similar interests. Internet communication encourages greater participation and in a more egalitarian manner.(13) Millions participate in the computer-mediated social groups known as virtual communities. These communities are social aggregations that develop when people form webs of personal relationships in cyberspace. The following is an extract from testimony to the US House of Representatives Committee hearing on Internet access.

Living in a rural community often inhibits or prevents communication and exchange of ideas with others because of physical and cultural isolation. Because our Library offers direct patron access to the Internet, the people in our community have been able to communicate with others throughout the world on a variety of topics ... to both receive information and, as importantly, provide information to the larger global community.... Several patrons have subscribed to different ... electronic mail discussion groups .... Some of these include: GOATS (goat farmers), ROOTS-L (genealogy), WHEELS (racing). One of our patrons, an adult survivor of child abuse, was able to find a ... group on this topic and now has an 'electronic' support group.(14)

Some educators are sceptical of the educational value of the Internet, seeing it as an expensive distraction from the essential disciplines of learning.(15) However, in my own experience in teaching law students how to get the best use of the Internet for their research, I have found it an astonishing educational resource. For example, law students can access a wider and more recent range of legal information than would otherwise be available to them in Australia, such as hypertext documents provided for university law courses in the US. As a parent of teenage children who access the Internet I have found it invaluable eg. for a project on the US civil war we were able to access and download photographs, letters from soldiers, information about different units and their uniforms which gave the research an immediacy and individuality no textbook could provide.

The self-regulatory culture of the Internet

Users of the Internet rely on 'netiquette',(G) the day to day rules for dealing with others on the Internet.(16) They are in effect a form of customary law. The culture is widely prevalent, though the rules vary in their details.(17) If necessary they are enforced by non-legal remedies, which John Perry Barlow, the founder of the Electronic Frontier Foundation in the US, describes as 'self regulation by the adhocracy'.(18) The technology itself allows these norms to be reinforced by users. Enforcement developed by users to control unacceptable behaviour on the Internet when no legal recourse is available includes 'flaming'(G) (inflaming others by sending abusive messages). Kiesler found that email discussion, particularly when anonymous, encourages flaming.(19) Flaming might appear contrary to netiquette but netiquette rules do not proscribe it. Where flaming is mentioned, it is implicitly authorised. For example: 'do not make flames of a personal nature,'(20)'do not join a list just to post inflammatory messages.'(21)

An example of an incident which outraged the Internet community was when the lawyers Canter and Siegel posted advertisements (for their services in obtaining a green card to enter and work in the US) to thousands of Usenet(G) newsgroups even though the information was irrelevant to those groups. This is an Internet offence called 'spamming'(G). Some newsgroups, on which they posted these advertisements, were moderated, which meant they had forged approval by the moderators(G). One of theses moderators claimed this was defamatory, since no responsible moderator would approve such a message.(22) Canter and Siegel were flamed(G) by thousands of Internet users but they showed no remorse and repeated the deed.(23) Their Internet Service Provider (ISP), Internet Direct, then disconnected them.(24)

Non-legal remedies have to some extent been recognised by the regulators. The Attorney-General's Department Computer Bulletin Board Systems Task Force Report noted 'there already exists a generally accepted code of ethics or practice governing Bulletins Board System use, breach of which may lead to cancellation of access privileges.'(25)

Access to the Internet

Concern has been expressed that children can gain access to material via the Internet which may otherwise be unavailable to them because of their age. But the extent of uncontrolled access would be very small:

The percentage of homes which contain a computer, a modem and a child or children is under 3%. The percentage of homes containing a computer, a modem and a child or children where parents exercise no or minimal control over use of the modem by the child or children, would, if only because of the parents' desire to control the size of the telephone bill, be somewhat less than 3%.(26)

If you look at access to the Internet from the top down it may look as if no one controls it, but if you look at it from the bottom up each one of these computers is an entry point at eg a University, employer or ISP who have some control over who gets access. Access is controlled by rules or by contracts. Employers often provide Internet access to employees with no guidelines on its use. Yet they risk legal action against them, although it has been an Internet convention that an individual does not speak for an employer.(27) In the US it is common to have a preset message in the signature(G) block disclaiming responsibility by the employing company. Disclaimers may not be effective, particularly if the employee is commenting on a work related topic. For example in the US, Kodak employees are not allowed to post information on Internet discussion groups if the message bears a Kodak address.(28) In the US Gold Coast Autotronics is suing Chrysler and one of its employees who posted a message asking dealerships to stop doing business with Autotronics.(29) A user code of practice may be needed. The Department of Education, Employment, Training and Youth Affairs (DEETYA) is preparing such a code.(30) The draft says that the use of 'electronic mail services to transmit obscene, offensive and slanderous material is prohibited.'(31) A written acknowledgment of conditions of use could also be used when access is first given to the system.

The negative aspects of the Internet

Government reports(32) and the media tend to emphasise the more negative aspects of the Internet. This has led to excessive concern with regulation or predictions that appreciation of the risks of publication on the Internet will cause a retreat to traditional documentary forms of communication like letters.(33) Many media reports are sensational stories suggesting an area out of control.(34) Many are grossly exaggerated eg. those on the Rimm survey of pornography.(35) This survey by an engineering undergraduate student(36) featured as a Time cover story in July 1995.(37) The story appeared to show the Internet was awash with pornography. The story failed to note that Rimm's statistics were from adult Bulletins Board System rather than the Internet and that he only studied those that advertised themselves as erotic or sex related.(38) These privately-operated boards require that people first prove they are over 18 and then pay for each image they download. The Rimm survey fuelled debate in the US Senate. Senator Grassley, for example, claimed that 83.5 per cent of the 900,000 images reviewed on the Internet were pornographic. Questions were raised immediately regarding the survey's methodology and even its true authorship. Time had to publish another article admitting 'damaging flaws in Rimm's study'.(39)

Why the Internet is hard to regulate in practice

The Commonwealth would have power over the Internet in Australia. Under s 51(v) of the Constitution it has power in respect of 'postal, telegraphic, telephonic and other like services' which has been interpreted to cover radio(40) and television.(41) 'Other like services' indicates the power was designed to cover new developments.(42) However, the Internet will be hard to regulate in practice. This is because of :

• the lack of centralised control

• the difficulty of controlling the spread of information

• the availability of encryption

• the world wide nature of the Internet and

• the difficulty of determining the originator of information which is anonymous or pseudonymous

• the unfamiliarity of policy makers with the technology and the fluid nature of the technology(43).

The Internet lacks centralised control

The Internet evolved without centralised control.(44) It originated in 1969 when the Pentagon created a network which would not have a single 'point of failure' in case of nuclear attack.(45) Since then it has grown exponentially,(46) now consisting of more than sixty thousand networks.(47) The Internet, being decentralised, has no peak bodies(G) covering user or provider groups,(48) making content regulation virtually impossible in a non-hierarchical and international 'network of networks'.(49)

The development of the Internet makes it harder for governments to control the spread of information. Although there are bodies which regulate technical aspects of the Internet, no single national body can have effective control of the content and regulation of services available, as much of the content is placed online outside Australia. Information can take so many alternative routes when one of the nodes of the network is removed that the Internet is almost immortally flexible. CMC Telecom pioneer John Gilmore referring to this flexibility said, 'The Net interprets censorship as a damage and routes around it.'(50) When a Canadian Court banned press from reporting proceedings,(51) the ban was circumvented using the Internet.

Citizens are using the Internet to keep a close eye on governments and corporations. For example, when a mathematician, Thomas Nicely, in the US, received an inadequate response from the manufacturer (Intel) about a bug he had discovered in the Pentium chip, he posted a message on the Internet.(52) The information spread so fast that Intel had to offer revised chips.(53)

Encryption is widely used on the Internet

Encryption(G) (converting data into code to prevent unauthorised access) is important for secure communications and will be increasingly important for commercial communications going over the insecure Internet. An email message from one person to another appears private but unless encrypted,(54) it is more like a postcard than a sealed letter.

The US Government has proposed that the Clipper Chip be included in communication devices to enable it to read encrypted digital communications,(55) thereby preventing those engaging in illegal activities from abusing the new technology.(56) Steve Orlowski, assistant director of security management in the Australian Commonwealth Attorney-General's Department(57), suggests that department could house a central decrypting(G) unit.(58) However a free encryption program called PGP (Pretty Good Privacy) is available on the Internet as a 'freeware' program and has become the de facto standard for secure electronic communication through the Internet without any trapdoor entry to the authorities wishing to break the code.(59)

The world wide nature of the Internet

Physical location and national and state boundaries are largely irrelevant in the Internet's cross jurisdictional virtual communities, compounding the difficulties of enforcement.(60) Following hypertext links a user often does not even know where a document being viewed is located.(61) Many nations fear loss of sovereignty through erosion of control by private interconnections across national boundaries.(62)

In U.S. v Thomas, Californians who ran an adult BBS were found guilty of violating stricter Tennessee obscenity law when material which was legal in California was downloaded in Tennessee.(63) Litigants may attempt to use the laws of the jurisdiction with the most restrictive laws to control the activity on the Internet outside that jurisdiction. But this is a dangerous tactic. While it may seem attractive to anti-porn campaigners, would they be equally pleased if the principle were also applied by Muslim fundamentalists against all 'blasphemous' utterances? CompuServe pulled the plug on over 200 newsgroups at the request of German authorities, who said the material violated child pornography laws there.(64) Lacking technology to single out Germany, they were removed worldwide. Clearly, jurisdictional issues will loom large in litigation involving the Internet.(65)

Anonymity and pseudonymity (hide the identity of the sender)

It is often difficult to prove who sent a message on the Internet. It is relatively easy to impersonate another person eg. by hacking into another's account, using a machine whose user has not logged off or by changing the start address.(66) A person can also hide behind anonymity or pseudonymity

Anonymity

Messages can be posted using an anonymous re-mailer(G) which strips off the sender's name and address. It is difficult for a court to subpoena records if the re-mailer erased the records of its anonymously forwarded mail, or if it is located in a foreign jurisdiction.(67) Re-mailers are heavily used, eg. one address in Finland (anon.penet.fi) had 50,000 users in 1994.(68)

In the New York State Supreme Court case Stratton Oakmont v Prodigy(69) an unidentified person, using an account of a former Prodigy employee, accessed Prodigy's bulletin board and posted messages accusing Stratton of fraud.(70) The US Supreme Court in McIntyre v Ohio Elections Commission, a case involving anonymous distribution of campaign literature by 'concerned parents and taxpayers', held an author's decision to remain anonymous was an aspect of freedom of speech protected by the First Amendment.(71) In the political area anonymity of electoral material on the Internet is becoming an issue in Australia.(72) It is possible to set up fake Internet home pages for politicians or parties eg. a fake home page on US Presidential candidate, Bob Dole, that could be regarded as defamatory, is on the Internet.(73) A Caribbean resort owner alleging defamation on a BBS by an anonymous user has asked a judge to force America Online to reveal the name of the subscriber 'Jenny TRR'.(74)

Anonymity and the resulting inability to trace the source of information can make it impossible to enforce national laws. Any country with a more restrictive approach to anonymity than the US or Australia can expect it to be undermined.(75) After a media ban on the Rosemary West trial was broken, Badge J banned publication of court proceedings across the Internet,(76) but details were posted anonymously to a newsgroup.(G)(77)

Problem issues relating to the Internet

Pornography

Media stories have created a wide impression that pornographic material is easy for children to find on the Internet.(78) However, the Computer Bulletin Board Systems Task Force Report received no submissions from persons complaining that they or their children had gained access to such offensive material.(79) Internet experts who have tried to find it for research purposes such as Professor Trotter Hardy(80) of William and Mary School of Law and Peter Lewis,(81) who covers the Internet for the New York Times, said they found it hard to access such material. It is very unlikely a child will easily find it. It is necessary to appreciate the logic of the situation from the point of view of those wishing to provide/access hard core pornography. Because some kinds (eg those involving children) are illegal in many jurisdictions and other kinds could easily become so, it is in the interests of users of such material to keep it covert and under careful control and not to have it widely accessible.

Material that is legal if published for adults, but is unsuitable for minors, is, however, more readily available. Both Playboy and Penthouse magazines in the US have opened home pages on the Internet.(82) These pages offer downloads of nude photos without any enquiry as to the age or identity of people accessing their sites. The Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies has recommended that access and service providers be required to verify the identity of all clients and that all clients are over the age of 18 years.(83)

The Computer Bulletin Board Systems Task Force Report in 1994 identified three options for the regulation of BBS content: development and adoption of guidelines by the BBS community, application of partial classification to BBS and application of full classification to BBS. At that stage the first option was favoured. A subsequent consultation paper has widened the concept to on-line information services.(84) That paper proposes it be an offence to transmit objectionable material. To provide an incentive for self-regulation, the proposed offence provisions will recognise adherence to an approved code of practice as evidence that a person has taken all reasonable steps to control the existence or transmission of objectionable material.(85) The Internet Industry Association of Australia (INTIAA)(86) is preparing a draft code of conduct for the Internet industry.

The Computer Bulletin Board Systems Task Force Report suggests the unrealistic solution of screening messages for BBS operators.(87) It suggests this would only be a problem for large operators, whereas even small BBS often have a huge volume of messages. The average has a hundred megabytes per week.(88) Screening messages for large systems would be impossible. The report suggests it might be possible to limit the size of messages or the time in which a user can access a BBS.(89) These proposals could destroy much of the value of the high volume 24 hour a day new technology.

The Commonwealth may enact censorship legislation for the Internet under ss 51(i) and 51(v) of the Constitution. Section 51(i) has been used to prevent the importation of books, videos and films deemed to be obscene.(90) The Office of Film and Literature Classification and the Censorship Board both classify material.(91) Currently, censorship of films, publications and computer games is controlled co-operatively by the Commonwealth, States and Territories. However there can be considerable problems in doing so with the Internet. The Computer Bulletin Board Systems Task Force Report stated:

Discussions with the United States Department of Justice have revealed that that Department as well as the Federal Bureau of Investigation and State law enforcement authorities have committed substantial resources to the problem of computerised child pornography and paedophile use of BBS. In spite of that effort, all they realistically expect to achieve is a 'campaign of periodic harassment', as opposed to the eradication of the problem. It is understood that, in view of the difficulties and costs involved, the existence of other forms of offensive material on BBS in the United States is generally ignored.(92)

Some legislation is already being enforced. In Western Australia, one individual was recently convicted of possessing child pornography obtained on the Internet from Mexico.(93) Canada has just had its first conviction for distributing child pornography by computer.(94) The Crimes (Child Pornography) Amendment Bill (NSW) 1995 would ban the possession of child pornography, including that available on the Internet.(95) The Classification (Publications, Films & Computer Games) (Enforcement) Bill (Vic) provides an offence for the publication or transmission to minors of material unsuitable to minors.(96) The Commonwealth Attorney-General's Department is investigating regulating the content of on-line services to control the availability of offensive material.(97) Western Australia is introducing legislation to control the Internet.(98) Queensland has enacted the Classification of Computer Games and Images Act (1995). An alleged paedophile has been charged under this Act, following the discovery of images by his ISP.(99)

Internet provisions in the US

Internet provisions were passed in February 1996 as part of the Telecommunications Act 1996. The eight month long debate on the Telecommunications Bill in the US shows some of the problems of controlling pornographic content without being unduly restrictive on ISPs. Provisions would hold ISPs criminally liable for materials downloaded through their services and considered 'indecent' by local community standards. Members of Congress debated whether to proscribe 'indecent' materials as proposed by Hyde and Exon or materials that are 'harmful to minors,' a less restrictive standard that other law makers favour. In merging House and Senate versions of the bill, bargainers chose the 'indecency' standard but also put in protections for commercial online services, so if they make a 'good faith effort' to keep such materials from being accessed by minors they would not be held liable.(100)

If the provisions become law, any user or provider of network services or information who is convicted of violating it would face a possible sentence of two years in gaol and fines of as much as $100,000. Indecency is a broad legal category that has been used to ban some foul language and sexually explicit material in broadcasts during periods when young listeners and viewers were likely to be exposed to them. But 'indecent' was also used some years ago successfully to ban books like J. D. Salinger's novel Catcher in the Rye from high school libraries. Scott Kurnit, President of MCI/News Corporation Internet Ventures, has said that such a law would significantly diminish what they could offer and it would be a very small version, sanitised for a lowest-common-denominator audience.(101) In the US, the National Information Infrastructure Advisory Council said the government should defer to the use of privately provided filtering, reviewing and rating mechanisms, and parental supervision, as the best means of preventing access by minors to inappropriate materials.(102) Section 230 of the new US Telecommunications Act 1996 provides protection for private blocking and screening of offensive material.

Copyright

Copyright is an area that will be fundamentally affected by the Internet. There was a recent case in the US in the Federal District Court for the Eastern District of Virginia, where the church of Scientology on 28 November 1995 won a copyright lawsuit over the electronic dissemination of the writings of its founder.(103) In a digital environment, it is very easy to reproduce and disseminate copyright material. Stephen Stout, managing director of the legal publisher Butterworths, considers 'Copyright is unenforceable on the net so we're not even going to try.(104) Already academic commentators are suggesting the need for change to a fundamentally new copyright law to take account of digital communication.(105) In the words of John Perry Barlow, founder of the Electronic Frontier Foundation, 'copyright has always protected the bottle and not the wine'. The virtues of copyright, its justifications and its goals, must now face the unforgiving and unprecedented challenges of cyberspace.(106)

In Australia, Internet development initially was mainly in the research and educational sector using the local Internet access provider AARNet.(107) These users have also developed a strong tradition of exchanging information and articles in draft form for comment. For many of these users, it is more important to exchange ideas and knowledge than claim copyright. Uniserve Clearinghouses have also been established at universities in many subject areas.(108)

Even before its burgeoning academic and research use, the Internet had produced a free speech environment where many users see a responsibility to share information.(109) Part of the ethic of the Internet is to share expertise.(110) It has even been suggested that there be new information rights to supplement, and in part replace, existing property rights to information. On this view, information should not be a commodity in the conventional sense but have value in being shared and understood - a 'sharable'.(111) Freeware,(G) free software available from the Internet, is a sharable.

On the Internet, creators can bypass third parties in order to distribute their own creative works. For example, the goal of Chaos Music Market is to create a high traffic area through its Internet site where Australian musicians can plug directly into the market of the Internet. Chaos Music Market,(112) in support of organisations such as the Australia Council, Ausmusic and Australasian Performing Right Association, is pushing for the inclusion of a performers' right in the forthcoming legislation. Such a right will provide an alternative source of income for artists.(113) Legislative recognition of artists' rights such as the performers' right could improve the image of copyright within the online community where piracy is often viewed as an expression of political freedom. Onerous copyright protection without justification in the online environment has the potential to exacerbate hostility towards any form of regulation.(114)

The former Minister for Justice, Duncan Kerr, asked the Copyright Law Review Committee to examine ways in which the Copyright Act 1968 (Cth) could be strengthened, simplified and drafted in plain English. The Committee was also asked to address outstanding issues identified by the Copyright Convergence Group in its report Highways to Change.(115) The simplification of the Copyright Act 1968 (Cth) is important particularly in light of the many new users who will be confronted with possible violation of copyright law in the new networked environment.

The strengthening of the Copyright Act 1968 (Cth) also raises two major concerns: the recommended new transmission right and fair use. Strengthening copyright could advantage existing players but disadvantage new ones, unduly restrict the flow of information and much reduce the value of this new world wide information source. Angus O'Shea in Protecting Intellectual Property in an Emerging Digital Environment argues that the challenge for policy makers is to permit or encourage dynamic competition in the digital marketplace while ensuring the free flow of information. He concludes that this object will not be achieved by strengthening copyright protection regimes.(116)

Transmission right

The Copyright Convergence Group Report's first recommendation was a new right of transmission to the public: that a technology neutral, broad based right to authorise transmissions to the public should be introduced into the Copyright Act 1968.(117) Technical devices could be used to monitor usage and implement pay per use. The Intellectual Property Licensing Agency (IPLA), which is the Internet equivalent of traditional copyright collection agencies, is testing different forms of intellectual property monitoring. IPLA monitors the Internet for misappropriation of work licensed to IPLA. IPLA will also negotiate with Internet providers for payment of blanket licence fees ... [and] for 'pay per view usage'.(118) Peter Drahos, Senior Lecturer in Law at the Australian National University, expresses the fear that much broader rights of copyright will be underpinned and enforced by sophisticated electronic copyright management systems. In a pay per bit society, levels of creative output may fall dramatically.(119)

The Copyright Act will need to strike a balance between the interests of creators, investors and users. If copyright fails to balance the needs of all members of the information society equitably, it risks losing the confidence of those it seeks to regulate, and it could become an irrelevance in the digital domain.(120)

Fair dealing

The doctrine of fair use or fair dealing has a long and valued history in copyright law. An equitable and flexible fair dealing doctrine is essential to copyright's balance and should be retained. It could be reshaped to apply to all copyright material, for purposes such as research, study, education, criticism, review, etc, with the fairness of any dealing to be determined by reference to established 'fair dealing factors'.(121) Concern has been expressed that rights such as fair dealing, which guarantee free access to works, will be eliminated or buried under so many qualifications that they will become redundant.(122) The Office of Regulation Review within the Industry Commission suggests that if existing rights attached to copyright are broadened, the defences against infringement such as fair dealing and educational use should be extended.(123)

If copyright is to be enforced, it must be respected as a fair and balanced set of rights and freedoms. Accordingly the general public will need to be persuaded that a certain level of copyright protection is in the public interest. The public will also need to be satisfied that the law is flexible enough to let users do what is fair. If the rights of the public under existing laws are further restricted, users may well see the new Copyright Act as unfair and disregard it.

The international environment for copyright

Australia is party to a number of international agreements dealing with copyright which make provision for the needs of copyright users eg. both Article 9 and 10 of the Berne Convention for the Protection of Literary and Artistic Works and Article 15 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. United Nations documents enshrine rights such as freedom of access to information and freedom of expression. For example, Article 19 of the Universal Declaration of Human Rights provides that: 'Everyone has the right to freedom of opinion and expression ... and to seek, receive and impart information and ideas through any media and regardless of frontiers'. Article 19 of the International Covenant on Civil and Political Rights provides that: 'Everyone shall have the right to freedom of expression ... to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice'. Taken together, these international agreements provide considerable scope for Australia to balance copyright protection with provisions designed to ensure fair access to information for all users of copyright material.

Citizens using the new medium require a less complex law

Electronic communication provides a medium for publication by people not previously able to publish widely. Ralph Nader, has, for instance, said the computer BBS 'is the lowest-entry mass-media system in history'.(124) Therefore problems for citizens are likely to arise with copyright and defamation law as they publish widely for the first time. There is already a commitment towards simplification of the law in The Justice Statement.(125)

Information disclosure and the right to privacy

Information disclosure

The Internet raises strong right to privacy issues. Anonymity, pseudonymity and encryption can be used to protect privacy on an individual level. However, few users realise that what they read and to whom they write can easily be monitored. With the Internet packet(G) system (TCP/IP(G)), information is transmitted in packets which can be accessed while being transmitted. Extensive logs are kept of mail that is passing through, which can provide a pattern of a users communication.(126) Even after receipt and deletion a message may be stored on a backup tape and potentially available to others.(127) The evidence against Oliver North was from backup tapes.(128)

A system can be accessed from outside by hackers or from inside by other users. Examples of outside access are:

• Outsiders can 'snif' (eavesdrop on network traffic). This involves physical access to the net eg from an unused network port. Sniffing has been used by outsiders not authorised to use a system to find out about passwords to a system and then to use those passwords to access the system;

• 'Trojan horse' can be used remotely to plant a doctored version of a trusted well known program that stores information users type in, such as user ID and password.(129)

• Insiders can gain unintended access from within a system, although newer versions of software have been made so that users cannot spy on each other, in older versions they can. Some examples are:

• by using the standard command 'ps' which shows what processes users are running on their local system

• The command 'last' shows all the logins to the system

• The use of the 'finger' command can display account information about other Internet users and you do not need a login. Fingering a specific person shows when they last logged in and the email last read.(130) The use of finger is within the control of the system's administrator and it is usually not turned on in secure areas.

Most privacy protections can be implemented at the level of the system's administrator. The system's administrator following the recommendations of the Australian Security Response Team can control much of this abuse of privacy eg by installation of firewalls . A firewall is a collection of components placed between two networks that collectively have the following properties: all traffic from inside to outside and outside to inside must pass through the firewall, only authorised traffic (as defined by the local security policy) will be allowed to pass and the firewall itself is immune to penetration.(131) In 1992 the OECD adopted Guidelines for the Security of Information Systems. Australia has adopted those guidelines and should therefore continue to encourage their implementation.(132)

Privacy

There is no common law right to privacy in Australia.(133) However the ACT Community Law Reform Committee recommends in its recent report on the law of defamation that a separate action for invasion of privacy be developed.

The Privacy Commissioner said in his report in 1995:

The information superhighway potentially provides a valuable source of personal information by monitoring individuals' habits. A number of companies are reportedly developing the capacity to measure usage of the Internet so they can inform advertisers, for example, about how many people read a document, how long they spend looking at each page, which sections are read and where the people live.(134)

The Privacy Act 1988 (Cth) implements Australia's commitment to take the OECD Guidelines Governing The Protection of Privacy and Transborder Flows of Personal Data into account in domestic legalisation.(135) Personal information is defined in s 6(1) Privacy Act 1988 (Cth) to cover digital information.

In June 1995 the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that the protections of the Privacy Act should be extended to the private and public sectors alike by means of a national privacy code. 'The Committee recommends that the protections provided by the Information Privacy Principles should be extended to all confidential third party information by way of a national privacy code.'(136) Internet privacy problems should be addressed in drafting such a code. Many of the concerns raised about telecommunications privacy in AUSTEL's report on Communications Privacy could also apply to Internet communication.(137)

Australia also has international obligations under Article 17 of the International Covenant on Civil and Political Rights in relation to personal privacy. Decisions such as the Dams case(138) indicate that the External Affairs power(139) might be used to implement such obligations. It has already been used in the Human Rights (Sexual Conduct) Act 1994 (Cth) to implement Article 17 in relation to interferences with privacy.(140) Some uniformity is being attempted internationally in the area of privacy.(141) For example, the European Union in 1995 adopted a directive on data privacy which requires member states to restrict international data flows if foreign privacy protections are lacking.(142)

Censorship of private email

Unlike conventional media there is virtually no editing process so prior censorship is not possible. What users post to a list usually appears and is mailed out before the sysop(G) knows of it. A list server is merely an automated routing device that routes messages without human intervention,(143) whereas with talkback radio there is a six second loop so a caller's comments can be cut off if defamatory or obscene. As Professor Trotter Hardy of William and Mary School of Law explains about his unmoderated list cyberia-l (a list devoted to discussions of law and cyberspace): 'messages go straight to the listserv(G) software and out to the list'.(144) A minority of lists have moderators, many of these moderators may censor excessively because of a lack of understanding of applicable law. Lemisch says this as a result of his survey of the rejection of messages on 13 moderated groups.(145) Mark Carkeet, from Minter Ellison, suggests ISPs should conduct spot audits of email messages to show they have taken reasonable steps to prevent offensive content,(146) but that may conflict with the right to privacy. In Australia, interception of telecommunications is illegal under s 7 of the Telecommunications (Interception) Act 1979 except in certain defined circumstances, but email is not specifically covered. In the US the Electronic Communications Privacy Act of 1986 was updated to apply to electronic mail.(147) That Act precludes government agents and third parties from intercepting electronic mail without the authorisation of one of the parties to the communication.

Defamation

The tort of defamation may be defined as the protection of the reputation a person has amongst his or her fellows. The plaintiff has to show that the statement is defamatory, the statement identifies the plaintiff and has been published to at least one other person. 'A statement which is of a kind to lead ordinary decent folk to think less of a person about whom it is made' could be defamatory.(148) Defamation is not a tort that protects a person's own feelings. An essential element of the tort is publication. The defendant’s state of mind in defamation is irrelevant; he is liable even if he has taken all reasonable care.(149) The tort of defamation has to find a balance between two valid rights: the protection of the plaintiff's reputation and the protection of the right of free speech. The defences protect the free speech aspect of defamation.

Rindos v Hardwick is the first decided case of defamation by email on the Internet. Both parties were in Western Australia, so the case did not raise the jurisdictional problems that may typically be expected in Internet suits. Justice Ipp awarded anthropologist David Rindos $40,000 in damages against Gil Hardwick,(150) one of the highest defamation awards ever made in Western Australia(151). Ipp J accepted the message contained imputations of sexual misconduct and professional incompetence. No US Internet cases were considered by Ipp J and he appeared to see no special aspects in this first Australian Internet defamation case. Ipp J described the message as on a 'computer bulletin board ... part of an international computer news service' and said that 23,000 people had access to it.(152) The message was not in fact on a BBS and was less widely published than the figures quoted by Ipp J. It was a message to the newsgroup 'sci.anthropology', the professional nature of which restricted the number of persons using it.(153) This discrepancy could have substantially inflated the level of damages awarded.(154) Defamation is a compromise between two rights: the protection of reputation and the protection of free speech. The defences protect free speech. If a case is not defended, as here, it enables damages to be recovered without the truth of the publication being litigated.

Simplified uniform defamation laws are needed

The Australian Law Reform Commission has said the laws of defamation 'are complex and conflict from one part of the country to another. It is not reasonable to expect editors, producers and journalists to know and apply eight separate defamation laws.'(155) How much more so for ordinary users of the Internet. Many reports on defamation law have recommended change but little has been done to implement them.(156)

Defamation law is a combination of common law and statute law and is different in each Australian jurisdiction. The reputation of only a narrow group is given effective protection by present defamation law. Australian cases tend to be prominent people versus media proprietors.(157) US studies indicate plaintiffs are mainly companies or high status men,(158) the number of women plaintiffs having dropped considerably this century.(159) It is not appropriate to the wider group who will access the Internet. In the UK the Supreme Court Procedure Committee in its Working Group Report on Practice and Procedure in Defamation concluded there was effectively a 'disenfranchised majority' of ordinary people.(160) Contemporary defamation law evolved to deal with dominant forms of the media prior to the Internet. Most traditional media are institutionalised and rely heavily on legal advice. Unlike journalists who have training in defamation and advice from lawyers and media organisations, Internet users are essentially on their own in a complex area. As was said of access radio, 'untrained people are unlikely to be alive to the dangers of defamation or to be guarded in their speech.'(161)

At the national level there have been a number of attempts in recent years to obtain agreement on the enactment of uniform defamation laws, without success.(162) Following the two High Court cases Theophanous(163) and Stephens,(164) the former Commonwealth Attorney-General in The Justice Statement said uniform national defamation laws would 'best ensure equal access to justice for all Australians.'(165) Since then two reports on defamation have been released in NSW(166) and the ACT(167) which, while they make valuable recommendations, are not consistent with each other and do not address Internet legal issues. Often criticism of the reports reflects their effect on established media interests and not the beneficial changes recommended for ordinary citizens.(168) Legislation less specific to particular media is required, otherwise Internet users may have less protection than established media. For example, in South Australia, the partial defence of apology in relation to actions for defamation applies to publication in any medium,(169) but elsewhere only to newspapers or periodicals.(170)

The Constitutional Commission recommended a referendum be held to give the Commonwealth power to enact a national defamation law.(171) Since then decisions such as the Dams case(172) indicate that the External Affairs power(173) might be relied on to implement Australia's international obligations under Article 17 of the International Covenant on Civil and Political Rights in relation to interferences with reputation. The External Affairs power has already been used in the Human Rights (Sexual Conduct) Act 1994 (Cth) to implement Article 17 in relation to interferences with privacy.(174)

Freedom of Speech

The Internet is an interactive medium in which freedom of speech is regarded as paramount, as opposed to the traditional balance defamation law recognises between reputation and free speech. The emphasis on freedom of speech on the Internet often takes the form of frank exchanges which are defamatory. Flaming is accepted behaviour among users, reflecting the Internet's origins in the US where the First Amendment free speech tradition is strong. Nigel Hamilton from Queensland University reports that about 80% of newsgroup subscribers have flamed other users.(175) Even companies like Time acknowledge this culture. Time's messages conclude 'Read TIME on America Online, where we get paid to take abuse.'

The Australian High Court case Theophanous(176) in 1994 introduced a Commonwealth Constitutional dimension to defamation law. There has been such a dimension in the US since the US Supreme Court case of New York Times v Sullivan in 1964(177) held the First Amendment circumscribed the application of defamation law. Although Australian Capital Television(178) placed the implied freedom of communication in the realm of political speech, Theophanous(179) suggests the concept could be broad, perhaps even a general freedom of speech. Cunliffe(180) indicates the potential width of political discussion. Recent Australian cases, since Theophanous and Cunliffe appear to be giving an expansive interpretation to the implied freedom.(181) In the Victorian County Court in Sporting Shooters v Gun Control Shelton J said as there was an ongoing debate on gun control, items were therefore published on an occasion of qualified privilege.(182) Allen J in the NSW Supreme Court in Hartley v Nationwide (an action by an alderman and migration agent) allowed the defence to go to the jury.(183) In this climate of less restriction on free speech newspapers are now publishing material which might not previously have been published eg allegations against the Australia Council,(184)

The implied freedom of communication, in combination with the culture of the Internet, may have a considerable impact on defamation law in Australia although some commentators see the effect of the implied freedom of communication as likely to be limited(185). I would agree with Walker(186) that it is likely to be substantial. The implied freedom of communication could influence the fundamental balance of defamation law between reputation and freedom of speech. The joint judgment in Theophanous said the balance had been tilted 'too far ... in favour of the protection of individual reputation'.(187)

Liability of Internet Service Providers

Cases suggest a lack of understanding of their functions

In the US there have been two decisions concerning defamation and ISPs, both from lower level courts. In Cubby v Compuserve(188) in New York a newsletter, disparaged on a forum provided by Compuserve, sued Compuserve. Leisure J, citing the US Supreme Court case Smith v California,(189) likened the bulletin board to a 'bookstore, public library, or newsstand,'(190) and ruled it had no duty to monitor every publication(191) although, in stressing the forum was maintained by subcontractors, he implied the issue might have been harder had it been directly under Compuserve's control.(192)

In 1995, in Stratton Oakmont v Prodigy in the New York Supreme Court,(193) Judge Ain considered the ISP Prodigy took a more active role in screening materials than Compuserve by holding 'itself out as an online service that exercised editorial control.' In a partial summary judgment he ruled Prodigy was a 'publisher' of materials because the forum leader was Prodigy's agent who exercised editorial control over postings.(G) (194)The service also promulgated 'content guidelines' and used a software screening program which prescreened postings for offensive language. Prodigy initially installed its monitoring software to catch anti-Semitic messages.(195)

The Prodigy(196) decision shows a basic misunderstanding of how ISPs operate. Most use tools (such as board leaders, content guidelines etc.) similar to those used by Prodigy to delete offensive material from BBS for example, Compuserve rejects offensive messages.(197) Rules of the Compuserve OpenLine forum indicate monitoring comparable to Prodigy eg. 'Personal attacks, foul language, or abusive behaviour, as judged by the sysops, will not be tolerated in OpenLine ... Messages that might put Sybase at legal risk regarding libel, slander, or other legal issues should not be posted.'(198)

Though the computer that forwards messages acts as a distributor there may be no editor if the machine is programmed to distribute every message sent to it. US cases indicate that monitoring for defamation is unwise but copyright cases like Frena(199) suggest diligent monitoring is advisable. ISPs should not have very different responsibilities for material carried. In Prodigy, Ain J noted the parallel issue of responsibility for obscenity and said the responsibility of ISPs 'may ultimately be pre-empted by federal law if the Communications Decency Act of 1995 ... is enacted.'(200) The Act originally made providers liable for content. However, as it emerged from committee, s314 exempted carriers from liability.(201)

Proposed UK defamation legislation, the Defamation (Responsibility for Publication) Bill,(202) provides a defence for ISPs as long as they are not primarily responsible for a defamatory statement, have taken reasonable care and do not know or have reason to suspect that their acts contributed to the publication of the libel.(203) This is an improvement on the defence of innocent dissemination in New Zealand, where defamation law does not refer to ISPs.(204)

The closest analogy for an ISP could be a television network. In Stern v Delphi in New York, Goodman J held the analogy for Delphi's BBS was to a television network.(205) However in Thompson v Australian Capital Television (206) the station raised the defence of innocent dissemination unsuccessfully. It broadcast a live program on relay from Channel 9. Only one program was relayed at a time and it was monitored to slot in advertisements.(207) The majority of the Full Court of the Federal Court held it was not an innocent distributor.(208) The huge volume of messages handled by ISPs and the lack of ability to monitor, unlike in Thompson,(209) should suggest that ISPs could be innocent disseminators. For example, in the US case Auvil v CBS(210) transmitting stations were held not to be liable. CBS and three local stations were sued over a report generated by CBS and broadcast by the stations. The program was not live, the stations having received it three hours before transmission time.(211)

In the UK the Report of the Committee on Defamation recommended printers could be classified as innocent distributors, as technological advances meant they no longer read material produced.(212) The Australian Law Reform Commission expressed a similar view.(213) The NSW Court of Appeal has allowed a printer to argue the defence,(214) recognising technological change.(215) The argument of technological change would apply even more to ISPs. It would appear that specific legislation, modelled on the proposed UK Defamation (Responsibility for Publication) Bill, is needed in Australia to clarify responsibilities of ISPs. Such legislation should encourage the sort of limited monitoring that US cases seem to penalise.

The submission from Telstra on offensive material to a consultation paper on the regulation of on-line information services is technically sound and represents a practical alternative. It indicated the scheme was generally suitable, but that content liability should be focussed on the author or originator of the offending material and individuals who access or download that material with the knowledge that the material was offensive. Telstra recommends that ISPs should only be liable where it can be shown that they either have full control over the material on their service or were aware of the offending material and were able, by lawful and practical means, to remove that material from their service, but did not do so within a reasonable time.(216) The Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies has recommended that where Service Providers can demonstrate that action had been taken in good faith to restrict access to objectionable material they should have a defence from liability.(217)

Possible alternatives for Australia

Possible alternatives have been canvassed under the section on problem issues earlier in this paper. However, other approaches warrant further consideration such as new approaches to remedies, technological solutions, more use of alternative dispute resolution, cyberspace virtual courts and further international cooperation

New approaches to remedies may be needed

For example, existing remedies for defamation (injunction, damages and exemplary damages) are generally unsuitable in the context of the Internet. The law of defamation could make more creative use of the technological capabilities of the Internet's free speech environment and incorporate existing self-help approaches of users (such as reply by the defamed person) in achieving the vindication of reputation.(218) This would be consistent with the implied freedom of communication.

Injunctions are rarely granted to prevent a statement being made because that could upset the balance between free speech and the protection of reputation. In the US, injunctions are not available for defamation, the Supreme Court having held such prior restraints to be presumptively unconstitutional.(219) With the implied freedom of communication in Australia it is likely injunctions will become even harder to obtain.(220) In determining damages, the extent of publication on the Internet can be hard to estimate without the circulation or audience figures of conventional media.(221) Damages, even if awarded in Internet cases, could be difficult to collect. Hardwick was reported in Rindos(222) as saying he was 'lacking any resources whatsoever' to defend himself. There have been difficulties in enforcing that judgment against him.(223)

Alternative remedies suit the free speech interactive Internet context better. As Brandeis J said in another context, 'the remedy to be applied is more speech'.(224) For instance, the NSW Law Reform Commission recommends the development of a declaration of falsity as a new remedy.(225) On the Internet, low budget digital publications creating more diversity are possible, and it is important that law developed for commercial media is not used to suppress them. Instead of the normal net protocol of sending a rebuttal, Suarez Corporation Industries sued Meekes for a critical item in his on-line journal Cyberwire Dispatch.(226) He now faces $25,000 of legal bills after a settlement.(227) In the settlement he agreed he would fax questions to Suarez Corporation before writing about it. Many Internet community members felt the law has been abused and have donated to pay the bill.(228) Cases and information on settled cases in the US suggest a possible abuse of economic power by the plaintiffs against defendants who are more financially vulnerable. Usually, before the Internet, it was the opposite way round, a case like Goldsmith(229) being exceptional.

Self-help remedy - reply by the plaintiff

The plaintiff is no longer at the mercy of a media organisation which can decide whether to print a correction. On the Internet a defamed person can send a reply to the same readers who saw the original work. As the US Supreme Court reasoned in Gertz v Welch:

The first remedy of any victim of defamation is self-help - using available opportunities to contradict the lie or correct the error and thereby to minimise its adverse impact on reputation.(230)

Issue Dynamics operates a 'clipping service' that monitors Internet discussion groups. They email clients copies of objectionable messages and help with a response, which can be posted to that forum.(231) America Online received a complaint from a dog food manufacturer about messages disparaging its product. The company was given ten hours online time to make rebuttals.(232)

Apology and retraction by defendant

Many people would prefer a quick apology to damages. In one study 83% of plaintiffs who had fought libel suits expressed interest in nonlitigation alternatives if the outcome was made public.(233) Retractions are already common on the Internet. A Leeds University student, debating political censorship on the Internet, made defamatory comments about the UK Social Security Secretary. Leeds University traced the student and sent a retraction on the Internet.(234)

One proposal in the 1991 Australian uniform Defamation Bill was for correction statements. There was provision for a mediator or court appointed arbitrator to arbitrate on the terms. In the US there are retraction statutes in 33 states and a new uniform corrections code in the US will attempt to shift the focus from damages towards retractions.(235) However, in Australia, media claim any apology or retraction may be held an admission of the defamatory nature of the statement.(236)

A code of practice for ISPs

Legislation being considered by the Australian States and Territories provides an incentive for establishing a code of conduct. It proposes offences for ISPs who knowingly provide access to objectionable material or provide minors with access to material which is restricted under the existing classification regime.

The legislation is expected to establish compliance with a code of practice as a defence to prosecution. The legislative framework being considered also anticipates that a code of practice will set out the precautions that an access provider should have in place to prevent access to objectionable material and restricted material.(237)

Technological solutions

The Australian Broadcasting Authority (ABA), in announcing its inquiry into regulation of the content of on-line services, proposed the exploration of various strategies including codes of practice, complaints procedures, educational programs in addition to devices for blocking or filtering certain material and offence provisions.(238) This will encompass a study of products such 'Surfwatch'(239) or 'NetNanny'(240) which filter out material at the terminal which would be of particular use to parents or schools. Microsoft and Netscape have announced that they will co-operate in a consortium called IHPEG (Information Highway Parental Empowerment Group) to produce an effective solution for providing children with a censored view of the Internet.(241) Possibly such blocking should not be available as an optional extra but rather a code of practice or legislation could be developed requiring that each Commercial service offer a channel blocking feature to parents. The use of channel blocking would be analogous to the blocking available in rooms at some hotels for videos parents consider unsuitable for their children to see.

The type of material that would be refused classification in Australia is available from outside Australia to adults. The ABA has suggested a possible strategy to block material from offending overseas sites would be to set up a 'refused access list'.(242) Australian ISPs with international access would be required to filter out data packets from addresses on that list. To maintain the effectiveness of this arrangement the list could be available online so that sites might be blocked as soon as they are identified.

Some suggested technical solutions are, however, not workable. The Computer Bulletin Board Systems Task Force Report suggested it was technically possible to use 'software which automatically rejects defamatory or obscene information'.(243) Given existing technology, this is incorrect, as such software presently deals only with the identification of a checklist of predefined objectionable words by means of look up tables.

A cancelbot(G) has been developed that scans Usenet News for spams and deletes them when found.(244) Though use of a cancelbot has serious censorship implications, it shows how much the traditional balance of the media has been changed.

Receivers of information, who have the necessary technical sophistication, are not passive but can respond actively. The poster of an article and the operator of a computer in the network can 'kill' a message. However, the convention has been to do so only where the network is overloaded because of the message.

More use of alternative dispute resolution (ADR)

The need for speed in Internet cases may suggest a move to alternative dispute resolution. Mediation may be more attuned to network customs and values and provide a more satisfactory solution than the courts.(245) ADR could therefore be particularly suitable for the new online environment. New information technology could free participants in ADR from the limitations of both time and space. Hearings can be held without everyone being present at the same place - subject to confirmation of defendants' presence and litigation issues such as enforceability of judgments. There is already some precedence for this, since 1991 some High Court applications for special leave have been heard by video link.(246)

Cyberspace virtual courts

Should cyberspace have virtual courts? Ocean-based commerce appeared a separate community in the eighteenth century and maritime law was the result.(247) It, like cyberspace, could be viewed as outside existing jurisdictions. The medieval Law Merchant is another example of a body of customary rules that evolved in Europe as a response to international commerce.(248) Special courts enforced the Law Merchant and the judges were merchants. Trotter Hardy suggests there should be online judicial panels to electronically hear disputes by reading testimony and studying evidence such as email. The panel would reach consensus decisions in a way sensitive to current rules of conduct in cyberspace. Such a panel would be more attuned than a court to network customs and would be able to mete out punishment enforceable on the Internet.(249)

A problem with this approach would be the narrow group that has dominated cyberspace.(250) For example, the ABA identified a need to promote a better understanding of gender issues and gender equity in the online environment.(251) Dale Spender said it sounds and looks essentially masculine.(252) 'At the time the road rules are being worked out there's not a woman on the virtual horizon.'(253) A seminar held by the Office of the Status of Women in August 1995 addressed this issue.(254) Surveys however now show women users are increasing:(255) 15% in June 1995 compared with 5% in January.(256)

Further international cooperation

The new electronic technologies require that some issues be resolved on an international basis. Some problems such as anonymity of publishers may need international cooperation to rectify. A Senate Select Committee has suggested the Australian Government take a leading role in brokering an international agreement on a code of conduct for bulletin boards.(257) In the US the legal academic Henry Perritt has proposed a model code of cyberspace law be drafted that could eventually be enacted by the United Nations.(258)

Conclusions

The Commonwealth would have power over the Internet in Australia under s 51(v) of the Constitution. However it will be hard to regulate in practice because of

• the lack of centralised control

• the difficulty of controlling the spread of information

• the availability of encryption

• the world-wide nature of the Internet

• the difficulty of determining an anonymous originator of information

• the unfamiliarity of policy makers with the technology and the fluid nature of the technology

There has been a lack of understanding of ISPs' inability to effectively monitor all material on the Internet. Content liability on the Internet should be focussed on the originator of offending material and on the individuals who access such material knowing that it is offensive. Innocent parties should not be deemed to have committed offences.

While the accessibility of hard core pornography to children on the Internet has been exaggerated, material that is unsuitable for minors is more readily available and is most effectively controlled by technological means.

Legislation on pornography and copyright needs to be truly technology neutral and not effectively more restrictive in the Internet environment than for other communication technologies.

The following recommendations have been made:

• The proposed national privacy code, recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs, should address Internet privacy issues.

• A code of practice for ISPs is needed. ISPs should be required to offer a channel blocking feature to parents. A 'refused access list' could to block adult access to overseas sites providing material that would be refused classification in Australia. Australian ISPs with international access could be required to filter out data packets from addresses on that list.

• Citizens using the Internet require less complex law, particularly in relation to copyright and defamation. If for no other reason, the Commonwealth should commit itself to simplified uniform defamation laws, which are needed in the context of the Internet. Defamation law should also make creative use of the technological capabilities of the Internet and incorporate existing self-help approaches of users.

• The review of the Copyright Act 1968 (Cth) by the Copyright Law Review Committee is examining ways in which the Act can be strengthened, simplified and drafted in plain English. Strengthening raises two major concerns: the recommendation of a transmission right and that defences against infringement such as fair dealing and educational use should be retained.

• Greater use can be made of alternative dispute resolution in Internet disputes. There could be Cyberspace virtual courts which would be attuned to network customs.

• Some issues (such as anonymity of publishers) need to be resolved on an international basis.

Endnotes

1. Johnson, William R 'Anything, anytime, anywhere: The future of networking' in Leebaert, Derek (ed) Technology 2001: the Future of Computing and Communications Cambridge, Mass., MIT Press, 1991, 150
2. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 6
3. A term originally from Gibson, William Neuromancer New York, Berkeley, 1984
4. Australia Day message by the Governor-General of the Commonwealth of Australia, the Honourable Bill Hayden 25 January 1995, at tomw@ccadfa.cc.adfa.oz.au
5. Howard, John 'Australia the Supermarket to Asia and beyond' Address to the National Farmer's Federation Annual Conference Canberra, 21 November 1995
6. Korporaal, Glenda 'PM backs acceleration to 'superhighway' Sydney Morning Herald 2 March 1995, 52
7. Innovate Australia. Information and Communications Services and Technologies 4.1
8. Digital Terrestrial Broadcasting the Government's Proposals Cmnd. 2946 London, HMSO, 1995, 20. See also Australia. Department of Transport and Communications Broadcasting Reform, a New Approach to Regulation 1993, 17
9. Australia. House of Representatives Select Committee on the Print Media News and Fair Facts. The Australian Print Media Industry: Report Canberra, AGPS, 1992, 101
10. Carter, Stephen L 'Technology, democracy and the manipulation of consent' (1984) 93 Yale L.J. 581 at 599
11. Eg. Political Tools Electronic Democracy URL http://www.well.net/mwec/political/288.html
12. Love, Alice A. and Omero, Margie 'Capitol Hill Is Deluged by a Flood of E-Mail Internet Messages Reach Record 636,000 in October' Roll Call 18 December 1995
13. Sproull, Lee and Kiesler, Sara 'Computers, networks, and work' in Harasim, Linda (ed) Global Networks Cambridge Mass., MIT Press, 1994, 110
14. U.S. House of Representatives. House Committee on Science Space, and Technology. Subcommittee on Science Internet access: hearing before the Subcommittee on Science of the Committee on Science, Space, and Technology, U.S. House of Representatives, One Hundred Third Congress, second session, October 4, 1994 Testimony of Beveley Choltco-Devlin Washington D.C., U.S. Government Printing Office, 1994, 61
15. McIntosh, Greg The Schooling Revolution Too Much: Too fast? Parliamentary Research Service Background Paper No 1 1995-96, 14
16. Eg. URL http://www.eff.org/pub/Net-info/Net-culture
17. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 19
18. Casimir, John 'Battle stations in cyberspace' The Sydney Morning Herald 29 July 1995, 5A
19. Sproull, Lee and Kiesler, Sara 'Computers, networks, and work' in Harasim, Linda (ed) Global Networks Cambridge Mass., MIT Press, 1994, 108
20. Herring, Susan 'Gender differences in computer-mediated communication: Bringing familiar baggage to the new frontier' Keynote talk at American Library Association convention, Miami, 27 June 1994
21. Rinaldi, Arlene H 'The netuser guidelines and netiquette' Academic/Institutional Support Services, Florida Atlantic University, July, 1994
22. Loudy, David J 'Lawyers' electronic ads leave bad taste' Chicago Daily Law Bulletin 9 March 1995, 6
23. Allison, G Burgess The Lawyer's Guide to the Internet Chicago, American Bar Association, 1995, 35-6, 40-2
24. Elmer-Dewitt, Elmer 'Battle for the soul of the Internet' Time 25 July 1994 46 at 47
25. Australia. Attorney-General's Department Computer Bulletin Board Systems Task Force Report: Regulation of Computer Bulletin Board Systems Canberra, Attorney-General's Department, 1994, 4
26. Australia. Attorney-General's Department Computer Bulletin Board Systems Task Force Report: Regulation of Computer Bulletin Board Systems Canberra, Attorney-General's Department, 1994, 2
27. Allison, G Burgess The Lawyer's Guide to the Internet Chicago, American Bar Association, 1995, 38
28. Betts, Mitch 'On-line libel lawsuits looming' Computerworld 28 November 1994
29. Lorek, L 'South Florida firm alleges cyber-slander' Sun-Sentinel 18 July 1995
30. Australian Vice Chancellors' Committee Electronic Mail Use and Abuse: Issues for Australian Universities - Discussion Paper 1995, 6
31. Australian Vice Chancellors' Committee Electronic Mail Use and Abuse: Issues for Australian Universities - Discussion Paper 1995, Appendix C, para 8
32. Eg. Australia. Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies Report on R-Rated Material on Pay TV, Regulation of Bulletin Board Systems, Codes of Practice in the Television Industry June 1995; Australia. Attorney-General's Department Computer Bulletin Board Systems Task Force Report: Regulation of Computer Bulletin Board Systems Canberra, Attorney-General's Department, 1994; Australia. Attorney-General's Department Consultation Paper on the Regulation of On-Line Information Services 7 July 1995; PC Users Group (ACT) Australia. Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies Position statement 1995 URL http://www.pcug.org.au/%7Ekauer/select2.htm
33. Farouque, Farah 'E-mail chatter could lead to cybersuit' The Age 3 June 1995, 10 (quoting Robert Todd of Blake Dawson and Waldron)
34. Chipp, Don 'Internet setting new standards in abomination' The Sunday Telegraph 24 September 1995, 140; Hilvert, John 'Internet beyond control - expert' The Australian 29 August 1995, 32; Mitchell, Lisa 'Internet - Pandora's box opens' The Age 14 February 1995, 28; Sweetman, Kim 'Sex crime manual on the Internet' Daily Telegraph Mirror 13 June 1995, 5; Wallace, Christine 'Fears that leaked files reached the Internet' Australian Financial Review 1 June 1995, 1; Wallace, Christine 'Canberra hacker 'offered disk or two a day' Australian Financial Review 15 June 1995, 2; Ashcroft, Rod 'Coping with nasties on the net' The Age 2 May 1995, 30; 'Mischief in cyberspace' International Herald Tribune 27 June 1995; 'Thinking about net crime' The Washington Post 26 June 1995; Gibb, Frances 'Menace of Internet libel prompts new defamation Bill' The Times 3 July 1995; Arthur, Charles 'How porn slipped the net' The Independent 31 July 1995, 13; van Niekerk, Mike 'Good vs evil on the net' The West Australian 19 September 1995, 14
35. Kattoulas, Velisarios 'Internet: a slice of heaven or is it total anarchy?' The Australian 19 September 1995, 46; Elmer-Dewitt, Phillip 'On a screen near you; It's popular persuasive and surprisingly perverse, according to the first survey of online erotica. And there's no way to stamp it out' Time 3 July 1995, 38; Elmer-Dewitt, Philip 'Fire storm on the computer nets: A new study of cyberporn, reported in a Time cover story, sparks controversy' Time 24 July 1995, 57
36. Rimm, Martin 'Marketing pornography on the Information Superhighway' 83 (5) Georgetown Law Journal 1995 1849
37. Elmer-Dewitt, Phillip 'On a screen near you; It's popular persuasive and surprisingly perverse, according to the first survey of online erotica. And there's no way to stamp it out' Time 3 July 1995, 38
38. Gyngell, Dominic Cyber- Erotica Public Neurotica: Governments , Censorship and the Internet Paper submitted for the Research Unit in Law at the ANU 1995, 11
39. Elmer-Dewitt, Philip 'Fire storm on the computer nets: A new study of cyberporn, reported in a Time cover story, sparks controversy' Time 24 July 1995, 57
40. R v Brislan; Ex parte Williams (1935) 54 CLR 262
41. Jones v Commonwealth [No 2] (1965) 112 CLR 206
42. R v Brislan; Ex parte Williams (1935) 54 CLR 262 at 283 per Rich and Evatt JJ
43. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 8
44. Post, David G 'Anarchy, state, and the Internet: An essay on law-making in cyberspace,' 1995 J. Online L. art. 3, par 38
45. WWW Hot Topic: Internet 25th Anniversary URL www@amdahl.com
46. National Research Council Realizing the Information Future: The Internet and Beyond Washington, D.C., National Academy Press, 1994, 21
47. 'Prepared testimony of Anthony M Rutowski Executive Director the Internet Society before the House Committee on Science Technology Subcommittee regarding the Internet and the management of objectionable materials' Federal News Service 27 July 1995
48. Lamberton, Hugh 'Lavarch moves on computer obscenity' The Canberra Times 20 June 1995
49. O'Neill, Patrick 'Optimizing and restricting the flow of information: Remodelling the First Amendment for a convergent world (1994) 55 U. Pitt. L. Rev. 1057 at 1083
50. Rheingold, Howard The virtual community: Homesteading on the electronic frontier New York, HarperCollins, 1994, 7
51. R v Bernardo, Ontario Court of Justice-General Division, [1993] OJ No 2047, para 137
52. Nicely, Thomas (nicely@acavax.lynchburg.edu) 'Re Bug in the Pentium FPU' 30 October 1994
53. Markoff, John 'Circuit flaw causes Pentium chip to miscalculate, Intel admits' New York Times November 24 1994
54. Merrill, Charles R 'Cryptography for commerce - Beyond Clipper' Data Law Report September 1994 URL ming.law.vill.edu in directory/pub/law/chron/papers file name merrill
55. Blackmer, Scott 'Privacy in cyberspace' International Corporate Law October 1994 19 at 20
56. Post, David 'Encryption vs. the alligator clip; The feds worry that encoded messages are immune to wiretaps' New Jersey Law Journal 23 January 1995, 8; Post, David 'Encryption - it's not just for spies anymore' The American Lawyer December 1994, 106; Garfinkel, Simson L 'Patented secrecy' Forbes 27 February 1995, 122; Sipchen, Bob 'High noon in cyberville; two security experts square off over how best to keep the worldwide computer network safe from the bad guys' Los Angeles Times 14 May 1995, 8
57. Orlowski, Steve paper presented to the Cryptography Policy and Algorithms Conference July 1995 URL http://commerce.anu.edu.au/comm/staff/RogerC/Info-Infrastructure/Orlowski.html
58. 'Encryption debate moves to net' The Canberra Times 4 September 1995, 17; Maltby, Chris 'Encryption puzzle for the regulators' The Australian 26 September 1995, 26
59. Spafford, Eugene 'Beyond basic Unix security' Purdue University, Indiana, 1993, 25; Cheswick, William R and Bellovin, Steven M Firewalls and Internet Security: Repelling the Wily Hacker Addison-Wesley, Reading, Mass., 1994, 232
60. Gilbert, Geoff 'Who has jurisdiction for cross- frontier financial crimes?' [1995] 2 Web JCLI
61. Post, David G 'Anarchy, state, and the Internet: An essay on law-making in cyberspace,' 1995 J. Online L. art. 3, par 37
62. Branscomb, Anne Wells 'Jurisdictional quandaries for global networks' in Harasim, Linda (ed) Global Networks Cambridge Mass., MIT Press, 1994, 83 at 103
63. US v Thomas Case No. 94-20019-G (W.D. Tenn.1994)
64. Zeiger, Dinah 'CompuServe halts 'obscene' newsgroups' The Denver Post 27 December 1995, Business C-01
65. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 10
66. Australian Vice Chancellors' Committee Electronic Mail Use and Abuse: Issues for Australian Universities - Discussion Paper 1995, 4
67. Long, George P 'Who are you? Identity and anonymity in cyberspace' (1994) 55 U. Pitt. L. Rev. 1177 at 1183
68. Ibid
69. Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94 (N.Y. Sup. Ct. May 24, 1995)
70. Raysman, Richard and Brown, Peter 'On-Line legal issue' New York Law Journal 15 February 1995, 3
71. McIntyre v Ohio Elections Commission, 115 S.Ct. at 1516 (1995)
72. Cookes, Thom and Potter, Ben 'Caution over party politics on net: How can electoral laws be enforced on the Internet?' The Age 26 September 1995, Comp 1
73. URL http://wc62.residence.gatech.edu.beau/bob.html
74. Bergstein, Brian 'Test case seeks end to online anonymity' The Commercial Appeal 16 September 1995, 3B; Fegelman, Andrew and Coates, James 'Suit may lift anonymity on Internet; Should on-line remark's source be disclosed?' Chicago Tribune 15 September 1995, 1; Bergstein, Brian 'Internet's anonymity challenged; Libel suit seeks name of computer user' The Record 16 September 1995, A01
75. Froomkin, Michael A 'Anonymity and its enmities' 1995 J. Online L. art 4 par 5
76. Mitchell, Lisa 'Internet - Pandora's box opens' The Age 14 February 1995, 28
77. Arthur, Charles 'Identity crisis on the Internet' 145 New Scientist 11 March 1995
78. Gyngell, Dominic Cyber- Erotica Public Neurotica: Governments , Censorship and the Internet Paper submitted for the Research Unit in Law at the ANU 1995, 6
79. Australia. Attorney-General's Department Computer Bulletin Board Systems Task Force Report: Regulation of Computer Bulletin Board Systems Canberra, Attorney-General's Department, 1994, 4
80. Hardy, Trotter 'Government control and regulation of networks' in The Emerging Law of Computer Networks University of Texas School of Law Conference 18-19 May 1995 Tape 7C Austin, Texas, University of Texas School of Law, 1995
81. Lewis, Peter H ' A non-lawyers perspective of life in cyberspace' in The Emerging Law of Computer Networks University of Texas School of Law Conference 18-19 May 1995 Tape 2C Austin, Texas, University of Texas School of Law, 1995
82. www.playboy.com
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83. Australia. Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies Report on Regulation of Computer On-Line Services November 1995, 23
84. Australia. Attorney-General's Department Consultation paper on the regulation of on-line information services 7 July 1995
85. Id at 16
86. The Internet Industry Association of Australia URL http://www.intiaa.asn.au/
87. Australia. Attorney-General's Department Computer Bulletin Board Systems Task Force Report: Regulation of Computer Bulletin Board Systems Canberra, Attorney-General's Department, 1994, 16
88. PC Users Group (ACT) Australia. Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies Position Statement 1995 URL http://www.pcug.org.au/%7Ekauer/select2.htm
89. Australia. Attorney-General's Department Computer Bulletin Board Systems Task Force Report: Regulation of Computer Bulletin Board Systems Canberra, Attorney-General's Department, 1994, 16
90. See Baxter v Ah Way (1909) 8 CLR 626
91. Australia. Attorney-General's Department Consultation Paper on the Regulation of On-Line Information Services 7 July 1995 URL http://www/dca.gov.au/paper-2html
92. Australia. Attorney-General's Department Computer Bulletin Board Systems Task Force Report: Regulation of computer bulletin board systems Canberra, Attorney-General's Department, 1994, 17
93. 'Electronic porn: viewer convicted' The Canberra Times 1 April 1995
94. R v Pecciarich [1995] 22 O.R. (3d) 748 URL http://insight.mcmaster.ca/org/efc/pages/law/court/R.v.Pecciarich.html
95. Sharp, Michael 'Carr moves to ban child pornography' The Sydney Morning Herald 22 May 1995, 3
96. The Classification (Publications, Films & Computer Games) (Enforcement) Bill (Vic) no 90 of 1995
97. Australia. Attorney-General's Department Consultation paper on the regulation of on-line information services 7 July 1995, 14
98. van Niekerk, Mike 'W.A. set to censor net' The West Australian 19 September 1995, 14
99. Gyngell, Dominic Cyber- Erotica Public Neurotica: Governments , Censorship and the Internet Paper submitted for the Research Unit in Law at the ANU 1995, 23
100. Sheppard, Nathaniel 'Congress weighs telecommunications reform; key issue defining indecency December 22 1995, 4
101. Caruso , Denise 'The prospect of Internet censorship raises troubling issues for business' The New York Times 18 December 1995, Section D; 3
102. 'Panel backs private Internet smut control' Newsbytes News Network 14 December 1995
103. Lucan Alice Neff (newslaw@newslaw.com (Lucan Alice Neff)) (9 February 1996) Re: new copyright jurisprudence message to list cyberia-l@birds.wm.edu
104. Head, Beverley 'Net poses legal quagmire' Australian Financial Review 4 May 1995, 7
105. Christie, Andrew 'Reconceptualising copyright in the digital era' [1995] EIPR 522; Christie, Andrew 'Towards a new copyright for the new information age' 6 Australian Intellectual Property Journal 145 at 159; Thomas, Julian 'Copyright in Australia's 'New communications environment'; Convergence, transmission rights and the Internet' (1995) 6 Journal of Law and Information Science 3 at 4; Malam, Paul 'Copyright in a digital age' (1995) 8 Australian Intellectual Property Law Bulletin 77
106. Appel, Robert 'Copyright in a digital age: Chaos in the debate' ANU Reporter 13 December 1994, 7
107. Wright, Charles 'The Internet: Why the AVCC must go, and who should pay' The Age 1 June 1994
108. Uniserve home page URL www.anu.edu.au/uniserve/
     (Uniserve Law URL www.edu.au/law/welcome.html).
109. Denning, Dorothy E 'Concerning hackers who break into computer systems' paper presented at the 13th National Computer Security Conference, Washington, D.C., 1-4 October 1990
110. Eg. Lloyd, Ian J and Simpson, Moira 'Law on the electronic frontier' Hume Papers on Public Policy 2(4) Edinburgh, Edinburgh University Press, 1994, 9
111. Kumon, Shumpei and Aizu, Izumi 'Co-emulation: The case for a global hypernetwork society' in Harasim, Linda (ed) Global Networks Cambridge Mass., MIT Press, 1994, 318
112. URL http:\\www.ozemail.com.au\~cmmusic
113. Appel, Robert 'Copyright in a digital age: Chaos in the debate' ANU Reporter 13 December 1994, 7
114. Appel, Robert 'Copyright in a digital age: Chaos in the debate' ANU Reporter 13 December 1994, 7
115. Duncan Kerr MP, the Minister for Justice (1995) 'Intellectual property issues in a networked information environment' (1995) 8 Australian Intellectual Property Law Bulletin 61 at 64
116. O'Shea, Angus Protecting Intellectual Property in an Emerging Digital Environment Cook, A.C.T., ACN, 1995,52
117. Copyright Convergence Group Highways to Change : Copyright in the New Communications Environment August 1994 Canberra, AGPS, 1994 Paragraph 1.3
118. Intellectual Property Licensing Agency 'World's first copyright protection agency over the Internet' Press Release 15 May 1995 URL http://www.ipla.com/jweb'press.txt.
119. Drahos, Peter 'Copyright and creativity in the information society' ANU Reporter 13 December 1995, 6
120. ACLIS Copyright for All Australians: Submission by ACLIS to the CLRC Review and Simplification of the Copyright Act 1968 1 September 1995 URL www.nla.gov.au/aclis/clrc.html.
121. ACLIS Copyright for All Australians: Submission by ACLIS to the CLRC Review and Simplification of the Copyright Act 1968 1 September 1995 URL www.nla.gov.au/aclis/clrc.html.
122. Drahos, Peter 'Copyright and creativity in the information society' ANU Reporter 13 December 1995, 6
123. Office of Regulation Review An Economic Analysis of Copyright Reform A submission to the Copyright Law Review Committee's review of the Copyright Act (Cth ) 1968 2 November 1995, 28
124. Reid, T R 'The new legal frontier: Laying down the law in cyberspace' The Washington Post 24 October 1994, F
125. The Justice Statement Canberra, Attorney-General's Department, 1995, 116
126. Brent, Erin (Erin.Brent@anu.edu.au) (17 Jan 1996) Subject: Unix programs. This email included examples of the results of the use of the w and finger commands and mail logs on network use.
127. Gates, Bill 'Electronic snoopers pose a threat to the privacy of e-mail' The Sydney Morning Herald 19 September 1995, 9; Crawford, Jan 'E-mail can come back to bite' The Sydney Morning Herald 27 September 1995, 14
128. Blackmer, Scott 'Privacy in cyberspace' International Corporate Law October 1994 19
129. Information from discussion with Erin Brent Library Information Technology and Network Support Unit Australian National University 17 January 1996
130. Information from discussion with Erin Brent Library Information Technology and Network Support Unit Australian National University 16 January 1996
131. Cheswick, William R and Bellovin, Steven M Firewalls and Internet Security: Repelling the Wily Hacker Addison-Wesley, Reading, Mass., 1994, 9
132. National Information Services Council Legal Issues URL www.nla.gov.au/pmc/nisc/aug95/legal.html
133. Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
134. Privacy Commissioner Seventh Annual Report on the Operation of the Privacy Act AGPS 1995, 2; Millett, Michael 'Information age prompts new privacy law' Canberra Times 2 December 1995
135. Federal Privacy Handbook: A Guide to Federal Privacy Law and Practice Looseleaf service Redfern, Redfern Legal Centre Publishing, 1992, 1603
136. House of Representatives Standing Committee on Legal and Constitutional Affairs In Confidence: A report of the Inquiry into the Protection of Confidential Personal and Commercial Information held by the Commonwealth, June 1995, 173
137. O'Connor, Kevin 'Being aware of consumer concerns with new intelligent network services' IIR Conference - Intelligent Networks 25- 26 July Sydney , 12
138. Commonwealth v Tasmania (1983) 158 CLR 1
139. Constitution s 51(xxix)
140. Human Rights (Sexual Conduct) Act 1994 (Cth) s 4(1)
141. Blackmer, Scott 'Privacy in cyberspace' International Corporate Law October 1994 19 at 21
142. The European Directive on Data Protection URL http://cpsr.org/cpsr/privacy/privacy_international/international_laws/ec_data_protection_directive_1995.txt
143. Perritt, Henry H Jr 'The Congress, the courts and computer based communication networks: Answering questions about access and content control' (1993) 38 Vill. L. Rev. 319 at 326
144. Hardy, Trotter (thardy@facstaff.wm.edu) (17 May 1995) message to list cyberia-l@birds.wm.edu
145. Lemisch, Jesse 'The First Amendment is under attack in cyberspace' The Chronicle of Higher Education 20 January 1995 56 in message from Smith, Stephen (libertas@COMP.UARK.EDU) (25 Jan 1995) First Amendment and Internet message to newsgroup
146. Higgins, David 'Lawyer urges monitoring of private e-mail' The Australian 1 August 1995, 31
147. Hardy, Trotter 'Government control and regulation of networks' in The Emerging Law of Computer Networks University of Texas School of Law Conference 18-19 May 1995 Tape 7C Austin, Texas, University of Texas School of Law, 1995
148. Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88 per Jordon, CJ
149. Hulton (E) & Co v Jones [1910] AC 20; endorsed Lee v Wilson (1934) 512 CLR 276
150. Rindos v Hardwick (WA Supreme Court, unreported, 31 March 1994, No 1994 of 1993) Hardwick seemed to lack understanding of the court process, as may be expected of ordinary citizens publishing on the Internet.. In a letter to the plaintiff's solicitor he stated: 'If you wish to ... have your client allowed his day in court to air his grievances ... let it be', apparently oblivious to the possibility extensive damages could be awarded against him.
151. 'The case of the expensive e-mail' 1994 1(1) Compulaw Newsletter 7
152. Rindos v Hardwick (WA Supreme Court, unreported, 31 March 1994, No 1994 of 1993, 2)
153. Auburn, Francis 'Usenet news and the law' [1995] 1 Web JCLI
154. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 30
155. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy Canberra, Australian Government Publishing Service, 1979, ix
156. Eg. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy Canberra, Australian Government Publishing Service, 1979; New South Wales. Law Reform Commission Defamation (Discussion paper 32, 1993); ACT. Department of Justice and Community Services Defamation: Issues for Consideration by the ACT Community Law Reform Committee, 1990; New South Wales. Law Reform Commission Defamation (Report 11, 1971); Law Reform Committee of South Australia Reform of the Law of Libel and Slander (Report 15, 1971); Law Reform Commission of Western Australia Report on the Law of Defamation (Project No. 8, 1979); Queensland. Criminal Code Review Committee Final Report of the Criminal Code Review Committee to the Attorney-General (June 1992); Legislation Committee on the Defamation Bill 1992 Report on the Defamation Bill 1992 (Legislative Assembly, Parliament of New South Wales, October 1992)
157. Australia. Law Reform Commission Unfair Publication: Defamation and privacy Canberra, Australian Government Publishing Service, 1979, 20-22; New South Wales. Law Reform Commission Defamation (Discussion paper 32, 1993), 198
158. Dashiell, Eddith A Getting to the Supreme Court of the United States: The social characteristics of Supreme Court Media-related libel cases since Times v Sullivan Ph D Indiana University 1992 Ann Arbor Mich., UMI, 1992, 55
159. Borden, Diane L Beyond courtroom victories: An empirical and historical analysis of women and the law of defamation Ph D 1993 University of Washington Ann Arbor Mich., UMI, 1993
160. U.K. Supreme Court Procedure Committee Working Group Report on Practice and Procedure in Defamation London, HMSO, 1991
161. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy Canberra, Australian Government Publishing Service, 1979, 24
162. New South Wales. Law Reform Commission Defamation (Discussion paper 32, 1993), 3; 'The Defamation Bill: Body of a crab, head of a social worker' (1992) 16 Gazette of Law and Journalism 2
163. Theophanous v The Herald & Weekly Times Ltd (1994) 124 ALR 1
164. Stephens v West Australian Newspapers Ltd (1994) 124 ALR 80
165. The Justice Statement Canberra, Attorney-General's Department, 1995, 128
166. N.S.W. Law Reform Commission Defamation Report 75 1995
167. A.C.T. Community Law Reform Committee Defamation Report 1995
168. Hryce, Graham 'Pointing the way to a confusing future' Canberra Times 16 January 1996, 9
169. Wrongs Act (SA) s 10
170. Defamation Law of Queensland 1889 (Qld) s 22; Defamation Act 1938 (NT) s 9, Wrongs Act 1958 (Vic) s7; Defamation Act 1901 (NSW) s.8 applying in ACT; Defamation Act 1938 (NT) s.9; WA, 6 & 7 Vict, c96 s2 adopted by 10 Vict No 8, Defamation Act 1957 (Tas) s.37
171. The Age 3 October 1987, 6
172. Commonwealth v Tasmania (1983) 158 CLR 1
173. Constitution s 51(xxix)
174. Human Rights (Sexual Conduct) Act 1994 (Cth) s 4(1)
175. Mackay, Hugh 'Anonymity makes us all brave little cowards' The Australian 27-28 May 1995, Features 6
176. Theophanous v The Herald & Weekly Times Ltd (1994) 124 ALR 1
177. New York Times v Sullivan 376 US 254 (1964)
178. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
179. Theophanous v The Herald & Weekly Times Ltd (1994) 124 ALR 1 at 20 per Mason CJ, Toohey and Gaudron JJ
180. Cunliffe v Commonwealth (1994) 124 ALR 120
181. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 23
182. Sporting Shooters' Association of Australia (Vic) v Gun Control Australia (Vic County Court, unreported, 2 March 1995, No MC 933064); 'Shot in the foot by qualified privilege Sporting Shooters' Association of Australia (Vic) v Gun Control Australia ' (1995) 32 Gazette of Law and Journalism 16 at 16-7
183. Hartley v Nationwide News Pty Ltd (NSW Supreme Court, unreported, 6 March 1995, No 12564 of 1990); 'Awareness of falsity Hartley v Nationwide News Pty Ltd' (1995) 32 Gazette of Law and Journalism 12
184. Hull, Crispin 'Shackles on the media loosened' The Canberra Times 15 September 1995, 11
185. Eg. Hughes, T E F Defaming Political Figures: Implied Freedom of Political Publication and the Law of Defamation Sydney, Sydney University Faculty of Law, 1994, 5
186. Walker, Sally 'The impact of the High Court's free speech cases on defamation law' (1995) 17 Syd L R 43 at 43
187. Theophanous v The Herald & Weekly Times Ltd (1994) 124 ALR 1 at 20 per Mason CJ, Toohey and Gaudron JJ
188. Cubby, Inc. v Compuserve, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991)
189. Smith v California 361 US 147, 152-53 (1959)
190. Cubby, Inc. v Compuserve, Inc., 776 F. Supp. 135 at 140 (S.D.N.Y. 1991)
191. Ibid
192. Ibid
193. Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94 (N.Y. Sup. Ct. May 24, 1995)
194. Ibid
195. di Lello, Edward V 'Functional equivalency and its application to freedom of speech on computer bulletin boards' (1993) 26 Colum. J.L. & Soc. Prob. 199 at 208
196. Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94 (N.Y. Sup. Ct. May 24, 1995)
197. Voorhees, Mark (0006368931@mcimail.com) (12 Jul 1995) message to list cyberia-l@birds.wm.edu; Coleman, James R (jcoleman@piper.hamline.edu) (12 Jul 1995) message to list cyberia-l@birds.wm.edu
198. 'Rules' Openline Newsletter 1(1) June 1994
199. Playboy Enterprises v Frena 839 F. Supp. 1552 (M.D. Fla. 1993)
200. Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94 (N.Y. Sup. Ct. May 24, 1995)
201. Sunstein, Cass R 'The First Amendment in cyberspace' (1995) 104 Yale L.J. 1757 at 1800
202. U.K. Lord Chancellor's Department Reforming Defamation Law and Procedure Consultation on Draft Bill July 1995, 2; 'Internet libel law now in draft' Sunday Times 18 June 1995
203. Gibb, Frances 'Menace of Internet libel prompts new defamation Bill' The Times 3 July 1995;
204. Defamation Act 1992 (NZ) s 21
205. Stern v Delphi Internet Services Corp 626 N.Y.S.2d 694 (April 20, 1995)
206. Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317
207. Id at 332 per Miles J
208. Id at 323 per Burchett and Ryan JJ. The plaintiff has filed an application for special leave to appeal to the High Court
209. Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317
210. Auvil v CBS '60 Minutes' 800 F. Supp. 928 (E.D. Wash. 1993)
211. Id at 930
212. U.K. Report of the Committee on Defamation Cmnd. 5909 London, HMSO, 1975, para 309
213. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy Canberra, Australian Government Publishing Service, 1979, 99-100
214. McPhersons Ltd v Hickie Aust Torts Reporter 81-348
215. Good, Rod 'Technology catches up with innocent dissemination Hickie v Perkins' (1995) 33 Gazette of Law and Journalism 8
216. Telstra Submission to the Information and Communications Services Policy Group 11 September URL http://www.pcug.org.au/~kauer/8spe.htm
217. Australia. Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies Report on Regulation of Computer On-Line Services November 1995, para 3.54
218. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 41
219. See Nebraska Press Ass'n v Stuart, 427 US 539 (1976); New York Times Co. v United States, 403 US 713 (1971); Organization for a Better Austin v Keefe, 402 US 415 (1971); Carroll v Princess Anne, 393 US 175 (1968); Bantam Books Inc. v Sullivan, 372 US 58 (1963); Near v Minnesota, 283 US 697 (1931); Patterson v Colorado, 205 US 454 (1907)
220. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 41
221. Auburn, Francis 'Usenet news and the law' [1995] 1 Web JCLI
222. Rindos v Hardwick (WA Supreme Court, unreported, 31 March 1994, No 1994 of 1993, 2)
223. Arnold-Moore, Timothy 'Legal pitfalls in cyberspace: Defamation on computer networks' (1994) Journal of Law and Information Science 5(2) 165
224. Whitney v California 274 US 357 at 377 (1927)
225. N.S.W. Law Reform Commission Defamation Report 75 1995, 88
226. Meeks, Brock N (brock@well.sf.ca.us) (17 May 1994 ) Re: Suit message to list roundtable@cni.org
227. Prime, Jamie 'Shallow pockets; libel suit against an Internet user' The Quill October 1994 82(8) 30
228. Berman, Donald (berman@ccs.neu.edu) (11 Jun 1994) Re: Response to Berman's Meeks query message to list cyberia-l@birds.wm.edu; Meeks, Brock N (brock@well.sf.ca.us) (17 May 1994 ) Re: Suit message to list roundtable@cni.org
229. Goldsmith v Sperrings [1977] 1 WLR 478
230. Gertz v Robert Welch, Inc. 418 U.S. 323 at 344 (1974)
231. Investor's Business Daily 8 March 1995
232. Yang, Catherine 'Flamed with a lawsuit' Business Week 6 February 1995, 70
233. Bezanson, Randall P 'The libel suit in retrospect: What plaintiffs want and what plaintiffs get' 1986 74 California Law Review 789 at 794
234. 'Byter bit' The Times 11 February 1995
235. Thompson, Geoff 'New corrections law for US' (1994) 24 Gazette of Law and Journalism 19 at 19; Flint, David 'Australian and American libel law reform' (1994) 13(4) Communications Law Bulletin 11 at 12
236. ACT. Department of Justice and Community Services Defamation: Issues for Consideration by the ACT Community Law Reform Committee, 1990, 13
237. Australian Broadcasting Authority Investigation into the Content of On-Line Services Issue Paper Sydney December 1995, 24
238. Australian Broadcasting Authority News Release 56/1995, 9 August 1995.
239. 'Cybersex censored by new program' The Canberra Times 16 September 1995, 9
240. 'Mischief in cyberspace' International Herald Tribune 27 June 1995
241. Gyngell, Dominic Cyber- Erotica Public Neurotica: Governments , Censorship and the Internet Paper submitted for the Research Unit in Law at the ANU 1995, 34
242. Australian Broadcasting Authority Investigation into the Content of ON-Line Services Issues Paper Sydney December 1995, 34
243. Computer Bulletin Board Systems Task Force Report: Regulation of Computer Bulletin Board Systems Canberra, Attorney-General's Department, 1994, 16
244. Beard, David 'Battle on hate goes on-line; Internet surfers try to wipe out bigotry' Sun-Sentinel 3 April 1995, 1. A Norwegian programmer eliminated the green card lawyers' messages using the same forging techniques against them that they had used.
245. Astor, Hilary and Chinkin, Christine Dispute Resolution in Australia Sydney, Butterworths, 1992, 36; Fisher, Roger and Ury, William Getting to Yes: Negotiating Agreement Without Giving in Boston, Houghton Mifflin, 1981; Folberg, Jay and Taylor, Alison Mediation; a Comprehensive Guide to Resolving Conflicts without Litigation San Francisco, Jossey-Bass, 1984
246. Roberts, Helen Cyberspace and the law, with particular reference to the application of defamation law to the Internet LLB Honours thesis ANU 1995, 49
247. Perritt, Henry H 'President Clinton's national information infrastructure initiative: Community regained?' (1994) 69 Chi.-Kent L. Rev. 991 at 1008
248. Hardy, Trotter 'The proper legal regime for cyberspace' (1994) 55 U. Pitt. L. Rev. 993 at 1020
249. Id at 1021
250. Horey, Jeremy 'User-profile fears as the net widens' The Australian 19 September 1995 Special Report, 1 at 2
251. Australian Broadcasting Authority Investigation into the Content of On-Line Services Issue Paper Sydney December 1995, 19
252. Spender, Dale Nattering on the Net; Women, Power and Cyberspace Melbourne, Spinifex, 1995, 193; Lamberton, Hugh 'Cyberspace: new male bastion?' The Canberra Times 26 August 1995, 14
253. Middleton, Karen 'No woman in sight on virtual horizon' The Age 9 March 1995
254. Hilvert, John 'Polies 'ignore' women's views' The Australian 29 August 1995, 32
255. URL http://www.cc.gatech.edu/gvu/user_surveys/survey-04-1995
256. 'Net more mainstream' The Sydney Morning Herald 1 August 1995, 42
257. Australia. Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies Report on R-Rated Material on Pay TV, Regulation of Bulletin Board Systems, Codes of Practice in the Television Industry June 1995, 6
258. Perritt, Henry H Jr 'President Clinton's national information infrastructure initiative: Community regained?' (1994) 69 Chi.-Kent. L. Rev. 991 at 1011.

Glossary of Internet and technical terms

Terms with an explanation in the glossary are designated (G) the first time they appear in the text

There is inconsistency in the use and definitions of some terms and no dictionary covering all terms is available. I have used the glossaries in the following publications in compiling this glossary:

Allison, G Burgess The lawyer's guide to the Internet Chicago, American Bar Association, 1995

Gibbs, Mark and Smith, Richard Navigating the Internet Indianapolis, Ind., Sams Publishing, 1993

Glossary of Internet Terms Matisse Enzer Internet Literacy Consultants, 1995 URL http://www.matisse.net/files/glossary.html

Hedtke, John Using computer bulletin boards (3rd ed) New York, MIS Press, 1995

Krol, Ed The whole Internet user's guide & catalog (2nd ed) Sebastopol Ca., O'Reilly, 1994

Raymond, Eric S The new hacker's dictionary (2nd ed) Cambridge, Mass., MIT Press, 1993

anonymous re-mailer

an online software device that strips off the sender's name and address, making them untraceable to the sender

authentication

determining the identity of the communicating party

BBS

Bulletin Board System

Bulletin Board System

a computer equipped with a modem and a program that lets people call the computer over a standard telephone line

cancelbot

a computer program that searches for messages posted in violation of network procedure. The program finds the messages and deletes them.

cyberspace

a word coined by William Gibson, in his science fiction novel Neuromancer to describe the realm and cultural dynamics of people and machines working within the confines of computer-based networks. The word is currently used to describe the whole range of information resources available through computer networks.

decrypt

to undo the encryption process

domain name

the last part of an Internet address. Domain Names always have 2 or more parts, separated by dots. The part on the left is the most specific and the part on the right is the most general.

download

the process of copying a file from another computer to your computer

email

electronic mail

encrypt

to scramble information so that only someone knowing the appropriate secret key can obtain it by decryption

expert system

system designed to make decisions and provide advice as would a human expert\

flame

a virulent and often personal attack. Many flames are defamatory. People who frequently write flames are known as 'flamers'

flaming

inflaming others by sending abusive or defamatory messages

freeware

a software package that the author distributes without charge

header

part of an email message that precedes the body of the message and provides the message originator, date and time

hypertext

documents that maintain links to other documents, where selecting the link automatically displays the second document

Internet

a global system for linking individual networks that use the same protocols (known as TPC/IP or Transfer Control Protocol/ Internet Protocol) for transferring messages and files

Internet Service Provider

a firm providing dialup IP(Internet Protocol) access to the Internet

IRC

Internet Relay Chat; a service that allows large group conversations over the Internet

ISP

Internet Service Provider; an organisation that provides connections to a part of the Internet

LamdaMOO

a variety of MUD known as MOO (short for MUD Object-Orientated) (See'MUD')

listserv

programs that act as message switches for email on specific subjects.

lurk

hanging around a newsgroup or list without contributing to discussion

mailing list

posting sent to a list of subscribers

moderator

person who keeps the discussion in a conference alive and on the subject

MUD

Multi-User Dimension or Dungeon; a multi-player role playing game played on the Internet

netiquette

a set of standards of practices that guide the proper behaviour of participants on the Internet

newsgroups

conferences on UUCP/Usenet or on the Internet

packet

a chunk of data sent over a packet switching network

peak bodies

national bodies bringing together and representing state or other component organisations on a national basis

posting

a contribution to a discussion group or a newsgroup

router

a system that transfers data between two networks that use the same protocols

signature

a file, usually five lines, often inserted at the end of messages. It contains a name and email address. A disclaimer can be included here

spam

an unsolicited posting usually off-topic sent to many discussion groups at once

sysop

system operator

TCP/IP

Transmission Control Protocol/Internet Protocol

URL

Uniform Resource Locater - The standard way to give the address of any resource on the Internet that is part of the World Wide Web e.g. http://insight.mcmaster.ca/org/efc/pages/law/court/R.v.Pecciarich.html

Usenet

a set of newsgroups considered to be of global interest and governed by a set of rules for establishing and maintaining newsgroups

Web searchers

can access documents across the Internet by key words

WWW

World Wide Web; a hypertext system for finding and accessing Internet resources

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