Chapter 2
REGULATORY MEASURES
2.1 As mentioned in paragraph 1.3, in its second report on the regulation
of computer on-line services in 1995, the Committee recommended the development
of a system of self-regulation for the on-line industry (Recommendation
7, Appendix 1). The Committee stands by that recommendation but developments
since that time (including a growing perception in some sections of the
on-line industry that that industry should be totally unregulated and
that it should not be bound by national laws because they are too difficult
to enforce) have led the Committee to conclude that legislative measures
must be introduced to complement the codes of practice developed by the
industry.
2.2 In considering possible legislation to cover on-line services, the
Committee is mindful of the comments of Liberal member of the Victorian
Parliament, Victor Perton, described by a computer expert as "acknowledged
as one of the few 'Net-savvy' politicians in Australia" who commented
on the Internet that: "If parliaments don't deal with the Internet,
they're characterised as Luddites. If they legislate, they're referred
to as 'clueless'": [1] The inquiry
revealed widespread concern from users of on-line services that the government
wanted to regulate the industry because it was confusing it with broadcasting.
The Committee wishes to make clear that, in considering various measures,
it has evaluated them in the context of on-line services, not broadcasting
services. However, it is also aware that some on-line services are now
being used for broadcasting purposes and more are likely to be so used
in the future.
2.3 In submissions and evidence to the Committee, witnesses stressed
the point to point (or one to one) aspect of Internet communication that
differentiates it from broadcasting:
There are plain differences across a whole spectrum of attributes
that make it different, the key one being you don't just turn it on
and get stuff. You have to go and call for it. You have to look for
it. Indeed, not only do you have to go look for it and download it,
you then have to decrypt it if you really want to see the juicy stuff
that most people would call objectionable material. [2]
2.4 The Committee notes that, while some pornographic sites require decryption,
this is by no means the norm and a large number of such sites on the Internet
can easily be accessed by children if blocking software is not being used
at their access point. The Committee wishes also to stress that if all
communication on the Internet was in fact private communication between
two persons or organisations, it would not be conducting this inquiry.
The Committee does not intend to recommend the regulation of private correspondence
(e-mail) between individuals.
2.5 However, it recognises that, when correspondence is published in
a daily newspaper for example, it is no longer "private" and
is subject to current defamation laws (implicating both the letter writer
and the newspaper editor). There is a similarity with the Internet, where
many "correspondents" decide to publish their hitherto private
communications. The Committee was told by a witness that: "everybody
who sends an e-mail is a content provider [3]".
That may be so but it should be possible to have a legal definition of
a "content provider" that differentiates between material that
can be accessed via a search engine (publicly available) and material
that two or even a dozen individuals share with each other through an
e-mail system.
2.6 In addition to being used by millions for publishing textual and
pictorial material the Internet is used for disseminating audio material.
In the relatively near future (even if the experts differ in their views
on when this might happen [4]) it is
likely to be used to disseminate video material as well. According to
the Chief Executive Officer of Progressive Networks, a US company that
markets software (such as RealAudio) which allows users to "tune
in", the company is launching, in 1997 software (RealVideo) which
will facilitate video access on the Web. The CEO admitted in an interview
with the magazine Broadcasting & Cable that the images are jerky and
no threat, at this stage, to broadcasting and cable television but he
added that, "given two or three more years of improvements, it may
well transform the Web into the next great TV medium". [5]
Closer to home, the ABA report referred to the Australian Broadcasting
Corporation (ABC) as "a good example of a content provider which
is planning to make existing broadcasting services available on-line".
[6]
2.7 The similarity with broadcasting resides to some extent in the fact
that the medium is used to reach millions at any one time but it certainly
calls into question the argument that, "Different rules (or no rules)
must apply because the user has to take more active steps to access on-line
services than is currently the case for broadcasting". The fact that
most industries and commercial enterprises consider on-line communications
as anything but private communication is revealed by the growth of advertising
on the Internet. Any frequently visited Web page (including this Senate
Committee's) is the target of advertisers offering considerable sums of
money for advertising space. Not many individuals or companies are asked
to do the same in the course of their "private" telephone conversations
and exchange of mail through the postal service.
2.8 In its earlier report on the regulation of on-line services in November
1995, the Committee noted that it was important then for it to be stated
what was a proper standard for on-line services which would apply to current
and new services as they are developed. The Committee expressed its belief
that Australia must consistently apply its standards to new technologies.
As its first recommendation, the Committee recommended "that it should
be an offence to use a computer service to transmit, obtain possession
of, demonstrate, advertise or request the transmission of material equivalent
to RC, R and X categories and their equivalence."
2.9 The Committee expresses its concern that progress towards this goal
has indeed been slow. It believes that action should be taken to prevent
the application of new technologies from dictating social policies. For
example, the purveyors of hard core pornography are using and intend to
use the Internet to its fullest extent in their own interests. It may
be argued that Category 1 and Category 2 restricted publications are available
for sale. However, these are restricted in the manner in which they can
be sold and the Committee is not convinced that society ought to provide
millions of other legal outlets for this type of publication which by
definition is likely to cause offence to a "reasonable adult".
2.10 In addition, there is a similarity between aspects of broadcasting
services (including Pay TV) and computer on-line services as convergence
of the technologies is now imminent (any Web site will soon have the capacity
to access and to become a conduit for others to access "adult
videos"). The Committee believes that any legislation that is developed
to regulate the on-line services industry should contain relevant provisions
similar to the Broadcasting Services Act 1992.
The Committee recommends that the Commonwealth, State and Territories
legislate to make it an offence to use a computer service to transmit,
obtain possession of, demonstrate, advertise or request the transmission
of material which is or is likely to be Refused Classification (RC) or
to be in a restricted category because it is likely to cause offence to
a "reasonable adult" as described in the National Classification
Code. [7] (Recommendation
1)
2.11 In Australia, publishers, advertisers and those who disseminate
audio, film and video material are all subject to legislation or codes
of practice which encourage them to operate within the boundaries of what
the community finds an acceptable standard. The Committee believes that
all users of the Internet should likewise be bound by the same requirements.
Since the medium is such that it makes every user a potential publisher,
advertiser, radio announcer (and sometime in the future, film or television
distributor), all users will need to be educated into the responsibilities
that those opportunities bring with them. The Committee recognises that
the main responsibility for material published on the Internet rests with
the originator of the material, the content provider.
2.12 The Committee rejects the view that Internet Service Providers (ISPs)
have no responsibility whatsoever for the material that is accessed through
their services. While they cannot be held responsible for material that
they cannot know is being accessed through their servers, they can and
should be held responsible for their actions once they are reliably informed
of the site at which objectionable material is held. However, the Committee
notes that the United States Communications Decency Act 1996, (which will
be discussed in greater detail in Chapter 4 of this report [8])
had the following provisions to protect those Internet Service Providers
(ISPs) who chose to restrict the availability of material which they believed
("in good faith") to be objectionable:
Protection for "Good Samaritan" Blocking and Screening
of Offensive Material.--
(1) Treatment of publisher or speaker.--No provider or user of an interactive
computer service shall be treated as the publisher or speaker of any
information provided by another information content provider".
(2) Civil liability. -- No provider or user of an interactive computer
service shall be held liable on account of --
(A) any action voluntarily taken in good faith to restrict access to
or availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable, whether or not such material is constitutionally
protected; or"
(B) any action taken to enable or make available to information content
providers or others the technical means to restrict access to material
described in paragraph (1).
2.13 In the Committee's view, it is desirable that any legislation that
requires ISPs to abide by a code of practice will also need to have provisions
similar to the so-called "Good Samaritan" provisions of the
U.S legislation.
2.14 In its November 1995 report, the Committee had recommended: "That
a system of self-regulation be instituted for the on-line industry based
on codes of practice and the establishment of an independent, authoritative
complaints body with a capacity to impose realistic sanctions over breaches
of the codes, including on-the-spot fines". [9]
In conducting Part 3 of this inquiry, the Committee was particularly interested
in assessing the progress made in the area of codes of practice, since
its last report
CODES OF PRACTICE
2.15 The Australian Broadcasting Authority also made a system of self-regulation
through the development of industry codes of practice, a key recommendation
of its 1996 report to the Minister for Communications and the Arts. The
ABA went a step further and recommended that the codes of practice developed
by the players in the Australian on-line industry be registered by the
ABA.
2.16 In its submission to this inquiry, the ABA told the Committee that
the on-line industry generally responded favourably to the recommendations
made in its report and that:
Since the Report the ABA has been keen to build on the sound
relationship which it has developed with the on-line industry and maintain
the momentum for co-operative action which was developed during this
period. As an indication of this relationship, a number of on-line industry
associations have commenced the process of drafting codes of practice
which aim to meet the requirements of the ABA. [10]
2.17 The Committee welcomes this development and would like to see the
consultation process followed until the codes of practice are finalised
and fully operative. A number of submissions (including the ABA's) referred
the Committee to Australian draft codes of practice currently posted on
the Internet and inviting comments from on-line users. These included
codes from:
- INTIAA (Internet Industry Association of Australia) http://www.intiaa.asn.au/codeV2.htm
- CAUDIT (Committee of Australian University Directors of Information
Technology) - http://www.anu.edu.au/people/Roger.Clarke/CAUDIT/Code.html
- West Australian Internet Association http://www.waia.asn.au/Documents/CodeofConduct.html
- South Australian Internet Association
- Tasmanian Internet Association and
- The Eros Foundation
2.18 Each of the codes are at a different stages of development and some
show that the issues raised by the introduction of codes of practice have
been thoroughly canvassed among the members of the organisation concerned
while in the case of the Eros Foundation for example, the code consists
of nothing more than a statement of the Office of Film and Literature
Classification (OFLC) Classification Guidelines.
2.19 The first submission received during this inquiry came from CAUDIT
which submitted its Draft Code of Practice. The Committee heard from the
CAUDIT witnesses at its public hearing in Brisbane that representatives
from all Australian universities participated in the consultation process
leading to the Code of Practice being drafted.
2.20 CAUDIT's Executive Officer told the Committee that his members see
the draft code:
as a basis for universities to develop their own codes of practice.
It is not intended to be applied across the university sector in exactly
the form that it appears on the web at the moment. It has to be adapted
by each university to suit its own circumstances, its own local legislative
state requirements and, of course, its own active statutes. [11]
The Committee was also told by CAUDIT that at least one university has
had the complaints procedures that it had developed under its code of
practice tested and that they had been proved to work satisfactorily.
[12]
2.21 The Committee commends CAUDIT's initiatives in this area and is
of the view that the approach that it has adopted to the code of practice
issue could provide a useful model to the education sector as well as
to other industries and professional associations. There are advantages
in a flexible approach whereby a draft code of practice is developed to
provide a generic pattern from which each member organisation can build
the code of practice that best meets its particular needs at the local
level.
2.22 The Western Australian Internet Association included its code of
conduct with its submission. The code aims at simplicity but is quite
clear in relation to a commitment from member service providers not to:
(a) Knowingly permit those parts of my system under my control to have,
publicly available for downloading, files which infringe copyright,
or contain unlawful material. Provided that the provision of cache,
mailbox, or directory usage to users shall not constitute permission
to misuse such facilities.
(b) Knowingly permit a user to engage in criminal activity using access
to my system, provided that such activity is identified as criminal
by competent law enforcement authorities. [13]
2.23 A number of submissions referred to the Internet Industry Association
of Australia's (INTIAA) draft Industry Code of Practice as an example
of a code drafted after wide consultation in the on-line community. Telstra's
subsidiaries, Telstra Multimedia and On Australia for example have been
involved with the development of the INTIAA draft code and Telstra indicated
its support for the code.The INTIAA Code has attempted to be very comprehensive
and it addresses some of the more difficult issues facing the on-line
industry in the area of content regulation including the need for "Code
Subscribers" to operate within the National Classification Code.
("Code Subscribers" are described in the draft code as: "each
member of INTIAA, and each person who has been approved by the Administrative
Council to use the Code Compliance Symbol" [14]).
Accordingly, the draft Code states:
Code Subscribers who become aware of an instance whereby content
that is or would be rated "RC" in accordance with the National
Classification Code... is or has been placed on the Internet, obtained
through the Internet or transmitted using the Internet, and remains
at a Web Site or other content database which is located at an identifiable
Web Site or other content database within Australia it will use reasonable
efforts to inform the owner and/or controller or apparent owner and
/or controller of that Web Site or other content database of the presence
of such material. [15]
2.25 In relation to material that is legally available in the Territories
and not in the States and to material that is available to adults but
not to minors, the draft Code states:
Code Subscriber Content providers will ensure that services which provide
content that is or would be rated "R" or "X" ("X"
is RC in the States of Australia (not the Territories), accordingly
this provision does not apply to "X" material made available
by a Code Subscriber Content Provider located in a State of Australia)
in accordance with the National Classification Code are:
(a) segregated and have clearly identifiable signatures which can be
recognised by network management filters;
(b) accompanied by suitable on screen warnings on a Web Page which
appears to the user before the content can be viewed; and
(c) managed by subscription enrolments to exclude under age subscribers.
[16]
2.26 The draft code also attempts to address the difficult issue of age
verification:
Code Subscriber ISPs will:
(a) not knowingly provide unrestricted access to the Internet to users
under the age of 18 years without the written permission of the user's
parent or guardian.
(b) request that new users confirm that they are 18 years of age or
over and that access to the internet will be supervised by a person
over the age of 18 when the service is used by a person under the age
of 18
(c) take reasonable steps to verify the age of each user by requiring
each new user to confirm on-line that they are 18 years of age or older.
[17]
2.27 Those extracts from the INTIAA Draft Code are quoted above to illustrate
the complexities in developing codes that address difficult issues such
as the placing on the Internet of material which has been given or is
likely to be given a Restricted category (R or X) or be Refused Classification
(RC) under the National Classification Code and the corollary need for
age verification procedures.
2.28 While some submissions indicated that they were supportive of the
INTIAA draft code, that code has also been strongly criticised by others,
including Electronic Frontiers Australia (EFA). EFA's submission stated:
"It seems unlikely that many service providers will actually accept
such codes." [18] In a critique
of INTIAA's second draft code, posted on the Internet at http://www.efa.org.au/Publish/efareb1.html,
EFA states that it finds the draft code "unnecessarily bureaucratic
and censorious" and calls for the redrafting of many of the provisions
of the code including a number of those dealing with "RC" material.
2.29 The INTIAA draft code is recognised to be a "draft", and
robust criticism and positive suggestions from other computer industry
organisations, users and the public can only assist in the production
of a more useful final document. In his evidence to the Committee, the
Australian Computer Society's (ACS) representative also questioned the
relevance of the National Classification Code to material that is accessed
through on-line services. He argued that classification according to the
National Code is based on the prerequisite that someone has had "the
opportunity to preconsider the material at some leisure in relative terms,
form a view about it, put a classification on it... You can't do that
in on-line real time without looking at it all." [19]
2.30 The above statement assumes that the National Classification Code
can only be relevant to the on-line environment if all on-line material
is evaluated against it. The fact is that by the nature of its existence
and its application to material off-line, the National Classification
Code has an impact on the Internet in Australia and is likely to have
a greater impact when convergence of telecommunications technologies is
more advanced. It is unlikely that the Australian community will tolerate
a situation where any material that is Refused Classification (and therefore
refused distribution through other media) is placed on the Internet for
distribution.
2.31 INTIAA is to be commended for seeking to come to grips in its draft
code of practice with difficult issues such as the interface between the
National Classification Code and material placed on the Internet. In order
to be recognised as trustworthy and workable, a code of practice must
address the issue of how the National Classification Code is to interact
with the distribution (including transmission) of "objectionable"
material on the Internet. This cannot be avoided since those States and
the Territory that have enacted legislation to date, to cover on-line
services have included material Refused Classification (RC) in their definition
of "objectionable material" (in Victoria's case, the reference
is to computer games that are classified as RC).
2.32 INTIAA's draft code recognises this fact by confronting and seeking
solutions to those difficult issues. In saying this, the Committee is
neither advocating that the OFLC should attempt the clearly impossible
task of classifying all material on the Internet nor is it suggesting
that the OFLC guidelines be applied by untrained personnel to material
on the Internet. The Committee believes that the use of the PICS infrastructure
could assist any Australian taskforce set up to work towards a solution
in this area. The Committee will return to this issue in Chapter 3 of
this report.
2.33 In its critique of the INTIAA code, EFA makes much of the fact that
the INTIAA Code Subscribers would not be in a position to know what "would
be" refused classification, that is rated "RC". While this
is so in a literal sense, the law operates in such a way that not "knowing"
whether one is breaking it is no defence for anyone accused of a breach.
Internet content providers (or in this case subscribers to a particular
code) are not singled out for this treatment. This is the way the law
operates for everyone in the land and in every domain. If RC material
cannot be legally advertised and distributed through any other media,
then it should not be legal to advertise and distribute via on-line services.
Those who do distribute material that could fall within that category
(if the National Classification Code guidelines were applied to it) are
doing so at their own risk.
COMPLAINTS HANDLING PROCEDURES
2.34 In any industry Code of Practice, complaints procedures must be
reasonably simple to follow and be seen to be acted upon if they are to
be trusted by the client community. The INTIAA draft code's mechanism
for handling difficulties and complaints is clearly set out (see Appendix
6) and appear to be equally simple for the complainant and the body to
which the complaint is made. Ultimately, the effectiveness of any such
mechanism is only known after it has been tested. The Association of Heads
of Independent Schools of Australia (AHISA) called for the establishment
of an independent complaints handling body to deal with situations of
conflict between service providers and consumers. Its representative told
the Committee:
Whilst industry self-regulation is very important, there is a
role to be played by someone or a group of people who do not appear
to have any vested interest in one aspect of the complaint or another...it
has to stand above any particular group of interests. I believe that
gives confidence to the community. [20]
2.36 The Committee agrees that such an approach would enhance the community's
(and particularly parent's) confidence in the on-line industry's willingness
to listen to their concerns and to deal seriously with their complaints.
The Committee notes that other groups also support the establishment of
an independent complaints handling body: submissions in response to the
joint Department of Communications and the Arts and the Attorney-General's
Department consultation paper in June 1995 indicated broad support for
this approach.
2.37 The ACS is one organisation that supported the establishment of
an independent complaints handling body. ACS's preferred model for a complaints
handling body is the one suggested by the Senate Committee in recommendation
7 (b) of its 1995 Report, Part 2. The model is that of the Telephone Information
Services Standards Council (TISSC) which remains the preferred model of
the Committee, as recommended in its report on Part 2 of this inquiry
[21] and was also supported by the OFLC
in its submission to the ABA's Investigation into the content of on-line
services. [22]
The Committee recommends that an independent
complaints handling body be established under the purview of the ABA or
other appropriate government body, based on the model provided by the
Telephone Information Services Standards Council (TISSC), to deal with
complaints from users of computer on-line services. (Recommendation 2)
2.38 ACS witnesses told the Committee that the Society had not developed
a specific code of practice for on-line users because it has had a Code
of Ethics in place for some 40 years and that, in the ACS's view, its
Code of Ethics adequately fulfils the same purpose as the various draft
codes of practice currently being circulated.
2.39 Nevertheless, the ACS submission to the Committee indicates that
it has given due consideration what should be included in a code of practice
and how it should operate. In ACS's view, a code of practice should distinguish
"between services which are private in nature and those containing
material which is available to the public" and should only apply
to material that is publicly available and not to material such as "email
messages or listservers to which users have to subscribe (and can easily
unsubscribe)". [23]
2.40 ACS's preferred option was for "a single comprehensive code"
rather than a variety of codes sharing a number of common features. It
recognised that a single code would impact in different ways upon different
industry participants". [24] The
ACS submission also suggested the establishment of an 'Online Standards
Forum' which would be responsible for developing the proposed single code.
The Forum would draw its members from service providers, content providers,
users and other interested parties.
2.41 The Australian Information Industry Association (AIIA), while cautioning
against any single association and industry group claiming to "represent
the Internet industry" [25] has
been involved in the consultation process leading to the development of
the INTIAA draft code and, like the ACS, AIIA sees the adoption of a single
code as the most sensible approach.
2.42 The Committee recognises the diversity of the computer on-line industry
and recognises also that diverse professional groups make use of the variety
of on-line services on offer. Each group and association may find it useful
to have its own particular code of conduct. It seems imperative, however,
for them all to agree on and abide by a set of principles, incorporated
into a single code so that self- regulation will be a workable proposition.
2.43 The Committee believes that self-regulation of the on-line services
industry will work best if it is complemented by legislation that requires
participants in the on-line industry to develop and to abide by registered
codes of practice.
2.44 In the Committee's view the requirement for codes of practice to
be developed should be enshrined in legislation in a similar way to the
requirements in sections 123 to 128 and sections 141 and 142 of the Broadcasting
Services Act 1992. The Committee supports the imposition of fines on participants
in the on-line industry for breaches of the industry code of practice
similar to the penalty system for broadcasting licensees who breach their
code of practice. The Committee believes that the Broadcasting Services
Act 1992 provides a useful model for legislating in the area of on-line
services because of the possibility for persons disseminating information,
entertainment and documentation to reach millions through the use of those
services.
The Committee recommends that the Minister for Communications and
the Arts introduce legislation, modelled on the Broadcasting
Services Act 1992 to require participants in the on-line industry
to develop codes of practice which address certain basic principles to
be formulated in consultation with participants in the on-line industry,
to abide by them and to require those codes of practice to be registered
with an appropriate body to be determined in the legislation. (Recommendation
3)
The Committee recommends that the legislation governing the registration
of codes of practice should include provisions for financial penalties
(of up to $100,000) to be imposed for breaches of those codes of practice.
(Recommendation 4)
The Committee recommends further that the legislation should contain
provisions designed to protect from prosecution, those Internet Service
Providers who choose, in good faith, to restrict access to material that
while not illegal, could cause offence. (Recommendation 5)
2.45 The difficulties of developing adequate legislation to cope with
the on-line environment have been well publicised indeed (partly because
the Internet is such a powerful medium for reaching millions). Those who
oppose any form of regulation stress the two-way communication aspect
of the Net, but while it is a medium for private communication between
individuals, it is obviously also a medium for world wide publicity. The
Committee will return to this aspect of the Internet later in this report.
2.46 The proposition that those who wish to operate outside the confines
of national and international law should be free to do so in cyberspace
appears to be common enough overseas as well as in Australia: The United
Kingdom's computer industry's proposal for addressing illegal material,
including child pornography on the Internet (R3- Safety Net) has found
it necessary to have as its first clearly stated principle:
In general, the law applies to activities on the Internet as
it does to activity not on the Internet. If something is illegal "off-line"
it will also be illegal "on-line" and vice versa. [26]
2.47 The Senate Committee made it clear during its public hearings [27]
that while views may differ as to what constitutes "unacceptable"
or "objectionable" (in a non-legal sense) material for children
or for some adults, there is material that is "illegal" to posses
or to distribute in one form or another. That includes child pornography
which is illegal for both adults and minors to possess (and to transmit
via the telecommunications means currently available) and material linked
to criminal (including terrorist) activities. The Committee rejects the
argument that, as material of that nature forms only a small part of the
information to be found on-line, it should be ignored. Material of that
type is, fortunately, only a small fraction of the material that is circulated
via other telecommunications means in society but recognition of that
fact has never made the material legal.
2.48 The issue here is not one of censorship but of the need for every
industry to operate within the law just as every individual in every society
is bound by the laws of that society. It is obvious that some choose to
break those laws but, if they do, they have to face the consequences of
their deliberate actions. There is no reason why this principle should
not apply to on-line services and on-line users, in spite of the very
obvious difficulties of achieving compliance with it.
2.49 It is an offence under the Classification laws of all the States
and Territories in Australia to make certain material available to minors.
Material of that nature is currently quite easily accessible to a minor
on the Internet. The words "quite easily accessible" are used
advisedly here. The standard argument of those who vigorously oppose any
regulation (even self-regulation through industry codes of practice) of
the Internet argue that no one is exposed to obscene images on the Net
unless they wish to be. The Committee recognises that that is mostly the
case for all adults who access the World Wide Web in the privacy of their
homes.
2.50 Almost all the commercial bodies (both local and international)
that place on the Web, material that is variously described as "adult
material" or "sexually oriented material" or material relating
to the "adult entertainment and service industry" place warnings
before the material can be accessed. The same cannot be said of Usenet
newsgroup files and Internet Relay Chats (IRCs) where "Objectionable
material" is more prevalent than on the Web and where there are no
advisory warnings. Although there are many cases where an address and
credit card details must be given before being granted access to explicit
material, the "free" advertising of the material is very detailed,
explicit and easily accessible to minors.
2.51 The sites that carry warnings employ a range of approaches from:
This site contains written and visual material dealing frankly
with censorship and the adult and entertainment industry in Australia.
If you are under 18 years of age, or are likely to be offended by such
matters, or are located in a country or state where such material is
illegal, do not go beyond this page.
(Eros Foundation site)
Welcome! If you are not of legal age or are offended by adult
material, Exit here
and:
You are entering a site that contains adult-only material. Do
you swear that you are 21 or older?........Click OK
or Cancel
Other warnings are more detailed and seek to obtain a number of undertakings
from the potential viewers of the material, including that they will not
make it available to a minor and that they are themselves wholly liable
for any "false disclosures" in regard to their true status.
2.52 Warnings do not constitute a safeguard for children and the reality
is that reliable age verification procedures are non-existent on the Internet.
Sites which contain objectionable material and those that contain material
unsuitable for children and minors can be accessed through a search engine
by using words that form part of everyone's daily vocabulary. Once the
site has been accessed, most ten year olds would seize the opportunity
to click on a button to say "OK, I am 18 or I am 21". Few children
would have any understanding of the consequences of their act in this
context or be aware of the existence of the type of material that the
"OK" would give them access to.
2.53 In a similar way, those who access on-line services in public places
(such as public libraries) have little protection from material which
they do not wish to see. There is anecdotal evidence that material of
an objectionable nature is left displayed on a screen more often than
simple coincidence would allow. When users click on the screen, they are
confronted (without warnings) with material that many find offensive.
The Universities Directors of Information Technology are one body which
have addressed this issue in their codes of conduct and the Committee
was told that of at least one instance where a University applied its
code of conduct to inappropriate use of access to the Internet through
that university's system. The student concerned lost access to the Internet
at University as a result of an incident where he had left on a computer
screen material offensive to other students. [28]
2.54 The Committee is concerned that children are not protected from
unsuitable material if it is distributed, displayed or delivered on-line
although there are strict regulations that prevent it from being distributed
to them through any other means. The Committee is mindful that the first
principle of the National Classification Code, which is the schedule to
the Commonwealth Classification (Publications, Films and Computer Games)
Act 1995 is that:
(a) adults should be able to read, hear and see what they want;
However, that principle is followed by equally important principles against
which it must be balanced:
(b) minors should be protected from material likely to harm or disturb
them;
(c) everyone should be protected from exposure to unsolicited material
that they find offensive;
(d) the need to take account of community concerns about:
(i) depictions that condone or incite violence, particularly sexual
violence; and
(ii) the portrayal of persons in a demeaning manner. [29]
2.55 In the Committee's view, any Commonwealth legislation requiring
the development and adoption of codes of practice by the on-line industry
must specify that Internet Service providers will put in place sound procedures
for age verification. The Committee acknowledges that notwithstanding
the implementation of recommendation 1, certain material which is or is
likely to be in the restricted category could legally be made available
through on-line services . Those who make this material available and
those who provide access to them must be required to ask for a pin number
which can only be obtained by an adult (such as a number linked to a driving
licence).
The Committee recommends that legislation developed as per recommendation
3 above should make it mandatory for those who make available restricted
material through on-line services to require a pin number (which will
be available only on production of a driving licence or other proof of
age) before granting the potential user access to such material. (Recommendation
6)
The Committee recommends that the Minister for Communications and
the Arts direct the ABA to investigate the development of reliable age
verification procedures for accessing material not suitable for children
through on-line services. (Recommendation 7)
2.56 It is essential that all States and Territories in Australia extend
to children and to those members of the community who wish to avail themselves
of it, the same degree of protection from unsuitable material and material
which may cause offence, on-line as they have from material distributed
by other means. This will be best achieved by state and territory legislation
that defines which type of material it is legal to transmit through on-line
services and which type is illegal. Uniform State and Territory legislation
would also ensure that "objectionable material" is clearly defined
as is now the case in the legislation of the three States and Territory
which have passed legislation to cover on-line services. The definition
could then be included in the codes of practice as they are developed
so that subscribers to the various Codes would be clear about what type
of material was concerned. In addition, Code subscribers could undertake
to display the definition for their clients.
STATE LEGISLATION
2.58 Victoria, Western Australia and the Northern Territory have enacted
legislation in the past two 18 months to specifically address the transmission
of material through computer on-line services. The legislation does not
seek to make carriers of the information in any way responsible for the
content they transmit and this is recognised as the only sensible approach
by the Committee and was also recognised in submissions. [30]
Draft legislation developed in April 1996 and submitted by the NSW Attorney-General
to a code of practice the Standing Committee of Attorney-Generals was
rejected by SCAGs but not before a leaked copy of the legislation had
been made available on the Internet. The NSW draft legislation disturbed
the on-line services industry for allegedly being too draconian and unworkable.
2.59 In very broad terms, all three states make it an offence to
- transmit objectionable material;
- transmit to minors material unsuitable for minors;
- advertise that objectionable material is available for transmission.
2.60 Western Australia and the Northern Territory [31]
list offences under their acts thus:
(a) transmit an article knowing it to be objectionable material;
(b) obtain possession of an article knowing it to be objectionable
material;
(c) demonstrate an article knowing it to be objectionable material;
(d) advertise that objectionable material is available for transmission;
or
(e) request the transmission of objectionable material knowing it
to be objectionable material.
and:
(1) A person must not (shall not) use a computer service to transmit
restricted material to a minor...
(2) A person must not (shall not) use a computer service to make
restricted material available to a minor...
2.61 Victoria's amended Classification Act [32]
has the following provisions:
(1) A person must not use an on-line information service to publish or
transmit, or make available for transmission, objectionable material.
(section 57 (1))
(1) A person must not use an on-line information service to publish or
transmit, or make available for transmission, to a minor material unsuitable
for minors of any age. (section 58 (1))
A person must not
(a) publish an advertisement or notice; or
(b) transmit, or make available for transmission, on an on-line information
service an advertisement or notice; or
(c) knowingly allow an on-line information service to be used for publishing
or transmitting, or making available for transmission, an advertisement
or notice
that objectionable material is available for on-line computer access.
(section 59)
2.62 There are some important differences between the way in which the
Victorian legislation on the one hand and the Western Australian and the
Northern Territory legislation on the other, deal with the incidence of
the burden of proof on the prosecution and the defence in court proceedings.
The definitions of "objectionable material" used in all three
acts is at Appendix 4. Although there is some common ground in the definitions,
Victoria's differs slightly from the other two who have adopted the same
definition.
2.63 Both Western Australia and the Northern Territory make it an offence
to use computer services to:
- obtain possession of material knowing it to be objectionable material;
- request the transmission of objectionable material.
Both have also made compliance with codes of practice a feature of their
regulatory approach by making it a defence to prosecution under certain
sections of their Act to prove that the defendant "complied with
a code of practice".
2.64 The Committee was told by the Western Australian Internet Association
that they, "were consulted very comprehensively by the WA government"
[33] as it prepared its legislation
and the association appeared to be generally supportive of the WA approach.
In general however, submitters to the Committee were critical of the legislative
attempts to date. The Communications Law Centre (CLC) was among submitters
that argued that new State legislation was unnecessary since existing
legislation was sufficient to deal with the transmission of illegal material
(including child pornography) on the Internet. Electronic Frontiers Australia
(EFA) also made this point in its submission and referred to Section 85ZE
of the (Commonwealth) Crimes Act 1914 [34]stating
that no further legislation was needed.
2.65 Section 85ZE of the (Commonwealth) Crimes Act 1914 states that:
A person shall not knowingly or recklessly:
(a) use a telecommunications service supplied by a carrier to menace
or harass another person; or
(b) use a telecommunications service supplied by a carrier in such
a way as would be regarded by reasonable persons as being, in all the
circumstances, offensive.
2.66 The Committee rejects the view that the Crimes Act 1914 is all that
is needed to offer proper protection to minors and to deal with all the
legal issues in this complex area. While that act would enable any law
enforcement body to deal with the issue of child pornography, it is not
certain what definition of "offensive" would apply leaving the
issue open to wide interpretation. That provision of the Act is at best,
as one witness to the Committee said, "a bit of a blunt instrument"
[35] and does not define in any detail
what is meant by "use... in such a way as would be regarded ...as
being offensive".
2.67 If every State and Territory in Australia has classification laws
which control the distribution of certain material, it is because the
majority of the population do not wish to be exposed to material that
depict acts of a demeaning nature even if those depictions are not strictly
speaking "illegal". At present, the Internet is a convenient
way for some to by-pass those laws since it is impossible to require any
one regulatory body to classify all the material on the Net in the way
that printed matter, films, videos and computer games are by the Office
of Film and Literature Classification (OFLC).
2.68 Another concern revealed in submissions was of possible confusion
for content providers arising out of different State and Commonwealth
legislation. Telstra was among those and was specifically concerned with
the possible negative effects on the industry of conflicting Commonwealth
and State legislation and of the lack of uniformity in State legislation.
Telstra also had reservations about aspects of legislation introduced
in some States:
In Telstra's view, legislation enacted by a number of State and
Territory governments is unworkable and onerous...The key concern with
the NSW draft legislation, [36]
and the similar Western Australian and Northern Territory legislation
which has been enacted is that they essentially create a strict liability
offence, placing the onus on the ISP to establish a defence...
The Victorian legislation is different in that the offence is
that of knowingly creating, publishing,
transmitting or making available on-line objectionable material or material
unsuitable for minors, the onus being upon the prosecution to prove
knowledge... [37]
2.69 Telstra considered that the Victorian approach was "more acceptable"
to the industry. Like Telstra, the Communications Law Centre (CLC) also
expressed concern about the different State legislation: "Separate
state legislation provides a wholly unfortunate and confusing intervention
into regulation of content whose defining feature is its global accessibility".
[38]
2.70 The concerns expressed about different State legislation are understandable
and the Committee is strongly supportive of a uniform approach where all
the States and Territories enact legislation with similar provisions.
If legislative uniformity was achieved in this area, all Australian Service
Providers could be required to ensure that all those who access material
and provide content through their services are aware that such legislation
exists in all States and Territories and of the possible implications.
The Committee recommends that all States and Territories amend their
Classification and/or Censorship legislation to make it an offence to
transmit objectionable material and to cover the transmission of material
unsuitable for minors through computer on-line services so that all States
and Territories would have legislation that is uniform according to an
agreement to be reached by the On-Line Government Council, and adopt a
standard definition of the expression: "objectionable material".
(Recommendation 8)
2.71 Once all States and Territories have legislation in place which
address the issue of transmission of material through computer on-line
services, it would be possible for their police forces to address the
issue of illegal activities in cyberspace in a more material effective
way. The Committee is aware that the sheer volume of material makes detection
difficult but until more sophisticated software is developed, the Committee
believes that random audits of suspected on-line sites should be carried
out by designated units in State and Territory police forces.
The Committee recommends that, once all States and Territories have
enacted legislation as per recommendation 8 above, designated units in
State and Territory police forces should conduct random audits of material
on-line for illegal activities.
(Recommendation 9)
2.72 The Committee understands that the new On-Line Government Council
is committed to achieving a common approach. According to the Northern
Territory submission, the "Censorship Ministers have agreed that
the Commonwealth will regulate Internet Service Providers (ISPs) and the
States and Territories will regulate content providers." [39]
The Committee was also told that this decision accounts partly for the
delay in Commonwealth legislation in this area, because:
the roles of the players can change from one moment to the next.
At one moment a person who is providing purely access and is an access
provider in terms of that economic community document, at the next moment
can be hosting services and be like a book store almost and at the next
moment can be providing content of their own. [40]
2.73 The Committee does not underestimate the complexity of the task
facing both policy makers and legislators in this area. However, it ought
to be possible to draft complementary legislation that covers any user
of the Internet in their specific (and alternate) roles as recipient,
content provider and access provider so that every eventuality is covered.
In the event of a person being both a user and a content provider, it
would be in that person's role as content provider that a breach would
be pursued if one has occurred.
2.74 Likewise it should be possible for the legislation to make a person's
responsibilities as access provider clear (in relation to abiding by registered
codes of practice) but apply the law regulating content providers to that
person when they assume the role of content provider. The States and Territories
would only pursue illegal activities by content providers and the Commonwealth
by service or "access" providers.
2.75 While the Committee is strongly supportive of the simplest possible
legislative approach, it rejects the suggestion that nothing can be done
to address the problems posed by what the technology makes possible in
this area. In a federal system such as Australia's the possibility often
arises that one individual will breach the laws administered by two different
levels of government (State/Territory or Commonwealth).
2.76 The Committee believes that rather than delaying the drafting of
appropriate legislation in this complex area, the approach should be to
take the necessary legislative measures and at the same time launch an
education campaign for on-line users and the general public. This was
strongly supported by a number of those who made submissions to the ABA
inquiry last year, including Optus Vision and the Australian Consumers'
Association.
2.77 The enactment of any legislation aimed at regulating on-line services
should be accompanied by an on-line advertising campaign clearly telling
on-line users that they are governed by both Commonwealth and State and
Territory legislation and that they have different responsibilities in
the various roles they assume on-line, be it as recipient of information,
content provider or access provider.
The Committee recommends that the On-Line Ministerial Council agree
to commit the Commonwealth and States to funding an on-line advertising
campaign to accompany the implementation of any regulatory measures adopted
by the Council and the Standing Committee of Attorney-Generals. The
campaign must provide information for Internet users to make them aware
of existing legislation and their legal obligations. (Recommendation
10)
2.78 The Committee was told that the Standing Committee of Attorney-Generals
are still working on model legislation. It is to be hoped that, once agreement
is reached on which model will apply, those States that have already passed
legislation will amend their legislation so that uniformity of legislation
can be achieved. The Northern Territory government has indicated to the
Committee its willingness to amend its legislation once a model is adopted.
[41]
2.79 The Committee recognises that legislative measures taken locally
can only address part of the problem. Most of the objectionable material
available on the Internet originates from outside Australia. To be truly
effective those measures must be linked to continuing efforts at an international
level to ensure that those who are engaged in the distribution of child
pornography and who distribute objectionable material to minors can be
prosecuted in the countries in which they are based. The need for international
cooperation in the area of on-line services is being recognised by various
international bodies such as the Organisation for Economic Co-operation
and Development (OECD) member countries and UNESCO. The Committee will
return to this issue in Chapter 4 of this report.
Footnotes
[1] Tebbutt, Dan, States to Censor On-Line
Services, PC Week Australia, 13 December 1995, p.8
[2] Evidence, p.276 (Mr Argy)
[3] Evidence, p.273 (Mr Argy)
[4] Evidence, p.254 (Mr Stewart)
[5] Jessell, H.A & Albiniak, P. Progressive
Networks' Glaser, First Audio, Now Video, Broadcasting & Cable,
February 10 1997, p.27
[6] Australian Broadcasting Authority, Investigation
into the content of on-line services, report to the Minister for Communications
and the Arts, ABA, Sydney, July 1996.
[7] The National Classification Code is a schedule
to the Commonwealth Classification (Publications, Films and Computer
Games) Act 1995
[8] The main provisions of that Act have been
found by a Pennsylvanian District Court to be unconstitutional, a judgement
that is currently being appealed against by the U.S Attorney-General.
[9] Senate Select Committee on Community Standards
Relevant to the Supply of Services Utilising Electronic Technologies,
Report on Regulation of Computer On-Line Services, Part 2, Nov.1995,
p. iv
[10] Australian Broadcasting Authority, Submission
No 45 p. 8
[11] Evidence, p. 183 (Mr Hunter)
[12] Evidence, p. 186 (Ms Olde)
[13] Submission No 5, (WA Internet Assoc.)
[14] INTIAA Second Draft Code of Practice
[15] INTIAA Second Draft Code of Practice,
Section 7, paragraph 8
[16] INTIAA Second Draft Code of Practice,
Section 10, paragraph 2
[17] INTIAA Second Draft Code of Practice,
Section 13, paragraph 1
[18] Submission No 6, (EFA)
[19] Evidence, p. 277 (Mr Argy)
[20] Evidence, p. 194 (Mrs Hauff)
[21] Appendix 1 (Recommendation 7 )
[22] Australian Broadcasting Authority's Investigation
into the content of on-line services, July 1996, p. 144
[23] Submission No 44 (Australian Computer
Society)
[24] As above
[25] Submission No 3 (AIIA)
[26] ISPA (Internet Service Providers Association)
& LINX (London Internet Exchange) R3 Safety-Net, Rating, Reporting,
Responsibility, For Child Pornography & Illegal Material on the Internet
[27] Evidence, pp. 205-205 and p 218 (Senator
the Hon. M. Reynolds)
[28] Evidence, p. 186 (Ms Olde)
[29] National Classification Code: Schedule
to the Classification (Publications, Films and Computer Games) Act
1995
[30] Submission No 9 (AHISA)
[31] Note: Western Australia, the Censorship
Act 1996, sections 101 & 102 and the Northern Territory, the Classification
of Publications, Film and Computer Games Act 1995, sections 50Z &
50ZA
[32] Classification (Publications, Films
and Computer Games) Enforcement Act 1995 (Vic)
[33] Evidence, p. 286 (Mr Heitmann)
[34] Submission No 6 (EFA)
[35] Evidence, p.258 (Ms Johnson)
[36] Note: The Committee notes that that draft
was not accepted as a model for nationwide legislation by the Standing
Committee of Attorneys-General when they met to consider it on 10 July
1996.
[37] Submission No 10 (Telstra)
[38] Submission No 39 (Communications Law Centre)
[39] Submission No 41 (Northern Territory)
[40] Evidence, p.250 (Mr Stewart)
[41] Submission No 41 (Northern Territory)