Chapter 4

Chapter 4

OVERSEAS DEVELOPMENTS

4.1 In addition to rapid developments in the area of content labelling, the eighteen months that have elapsed since the Committee's last report have seen constant efforts by governments overseas, notably in Europe and North America, to impose a measure of control over the on-line environment, including the Internet. the majority of the initiatives announced by overseas governments have been severely criticised as 'censorship' by Internet user groups around the world.

4.2 The means by which national governments are attempting to exercise that control include:

  • The introduction of new legislation or amendments to existing legislation
  • The development of self-regulatory frameworks (including Codes of Conduct) for on-line services, in consultation with the on-line industry
  • Support for the setting up of 'e-mail', phone and fax hot-lines to receive complaints from the public
  • Calls for co-operation at international level to address issues of concern such as the use of on-line services to pursue criminal activities, market child pornography or incite people to racial hatred
  • the introduction of a class licensing scheme requiring service providers to comply with certain conditions in order to be licensed (Singapore).

United States

4.3 Naturally enough, national governments have attempted in the first instance to use the means of control with which they are the most familiar and which have up to now proven to be generally the most effective, that is, legislation. The most serious attempt to date to control, through legislative means, the transmission of objectionable material to minors through the Internet was made by the United States Congress passing an amendment to that country's Telecommunications Act 1995. The amendment was passed on 1 February 1996 and became known as the Communications Decency Act 1996 (CDA).

4.4 The Act subjects to criminal penalties of imprisonment of no more than two years or a fine or both, a person who:

    (1) (B) by means of a telecommunications device knowingly--

      (i) makes, creates or solicits any comment, request, suggestion, proposal, image or other communication which is obscene or indecent knowing the recipient of the communication is under 18 years of age

      (ii) initiates the transmission of any comment, request, suggestion, proposal, image or other communication which is obscene or indecent regardless of whether the maker of such communication placed the call or initiated that communication;...

    (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity.

4.5 The "patently offensive" provision subjects to criminal penalties anyone who:

    (1) knowingly--

      (A) uses an interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, or

      (B) uses any interactive computer service to display in a manner available to a person 18 years of age, any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or

      (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity.

4.6 The American Civil Liberties Union (ACLU) immediately launched a lawsuit challenging the validity of those provisions in the Act. ACLU was joined in its lawsuit by other organisations such as the American Library Association (ALA) and the Electronic Privacy Information Centre (EPIC) (the case, however is known as ACLU v Reno {the US Attorney-General}). The challenge was heard by the District Court for the Eastern District of Pennsylvania and, in its judgement, handed down in June 1996, the court found that the provisions of the CDA listed in paragraphs 4.4 and 4.5 above, infringed the First Amendment of the United States Constitution. Other groups in the United States have challenged the CDA and the District Court of the Southern District of New York has also found it to be unconstitutional.

4.7 The court found that the words "indecent" and "patently offensive" used in the CDA Act were too vague and, because of the uncertainty they created, on-line service providers could not know whether or not they were complying with the law. As a result, the CDA violated their rights to free speech (guaranteed under the First Amendment). Some of the judges on the panel also found that the vagueness of the definitions meant that on-line service providers could be prosecuted without "due process" (their right under the Fifth Amendment) having been followed. The U.S Department of Justice has appealed against these rulings and the case is currently being heard with a decision expected in July 1997.

4.8 The demise of the CDA (assuming the current appeal is lost) does not mean that it is legal in the United States to transmit any type of material through on-line services. In the past year, legislation has been passed in the U.S. Congress to make it an offence to use computer networks and on-line services to transmit images or information pertaining to:

  • child pornography
  • the manufacture of explosive materials for criminal purposes and
  • hacking into computer networks (including the threat of hacking)

4.9 Since October 1996 it is an offence in the U.S, "for any person to "knowingly" mail, transport, ship, receive, distribute or reproduce any child pornography by any means, including by computer. [1] In September 1996, the U.S Congress passed a law which makes it a criminal offence to teach, demonstrate the making of explosive materials or distribute by any means information pertaining to the manufacture of explosive materials if the person knows that that information will be used for a criminal purpose. It is also an offence in the United States (since October 1996) to transmit threats against computer networks across state or international boundaries (and to steal computer information). [2]

4.10 A number of American States have also enacted laws that make it an offence to transmit computer images depicting child pornography through on-line services. Some have passed legislation to prohibit sexual solicitation of a minor by means of a computer network. The State of New York has passed legislation with provisions similar to the Communications Decency Act 1996 and ACLU and other organisations have filed a lawsuit challenging the State legislation on the same grounds as their successful challenge of the CDA. Some State's legislation addresses other issues: Georgia for example, has legislation that criminalises the use of pseudonyms on the Internet and Maryland is seeking to make it an offence to use electronic mail to annoy, abuse, torment, harass or embarrass other people.

Canada

4.11 The Canadian Association of Internet Providers (CAIP) has pre-empted legislative moves by that country's governments by developing a Code of Conduct whereby its members will voluntarily commit themselves to first, "cooperate with all Government officials, international organisations and law enforcement authorities seeking to clarify the responsibilities for each of the different functions performed by Internet companies" and secondly, to "comply with all applicable laws". CAIP realistically comments on its first principle that: "Although there are no Internet-specific laws at present, it is conceivable that each different service provided by Internet access and technology suppliers may attract a differing policy or legal regime." [3]

4.12 In Canada, one of the major issues has been the use of the Internet to transmit hate propaganda which is an offence under the Canadian Human Rights Act. The Act defines "hate message" as "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.". Section 13 of the Canadian Human Rights Act prohibits a person acting so as to cause 'hate messages "to be communicated... by means of a telecommunications undertaking within the legislative authority of [the Canadian] Parliament". [4]

4.13 The Canadian Human Rights Commission has asked for a human rights tribunal to be appointed to look into complaints against a site which allegedly carries "holocaust denial" material and which is hosted on a system based in Southern California. The province of British Columbia is also investigating possible measures to stop the "spread of hate on the Internet".

New Zealand

4.14 In 1995, legislation aimed at regulating on-line services was introduced to the New Zealand Parliament. It was never passed and appears to have lapsed. Prosecutions have been made under the Films, Videos and Publications Classification Act 1993 (NZ) and in one case in 1995, there were reports that a bulletin board called 'The Jungle' was closed under existing New Zealand legislation. There have also been reports that in December 1996, 15 search warrants were served on New Zealand Internet service providers in relation to on-line pornography and paedophilic activities by Internet users in that country. [5]

United Kingdom

4.15 The British Parliament passed legislation in 1996 to deal with computer generated child pornography images and with the transmission of such images through computer on-line services. It has amended relevant provisions of the Obscene Publications Act 1959 and the Criminal Justice and Public Order Act 1994 in order to include computer transmission within the definition of 'publication'. The Protection of Children Act 1978 and the Criminal Justice Act 1988 have also been amended. Section 188 of the Criminal Justice Act 1988 now makes it an offence for a person to have "any indecent photograph or pseudo-photograph of a child in his possession"

4.16 "Pseudo-photograph" is defined in the Protection of Children Act 1978 as "an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph" It also includes "data stored on a computer disc or by other electronic means which is capable of conversion into a photograph". Section 188 of the Criminal Justice Act 1988 has been used successfully to prosecute persons involved in the downloading of child pornography from the Internet.

4.17 In September 1996, the UK government, the police in that country and the two major UK Internet Providers associations, UK Internet Service Providers Association (ISPA) and the London Internet Exchange (LINX) agreed to a set of proposals, known as the Safety-Net proposals, with the aim of combating child pornography on the Internet. The Internet Watch Foundation (IWF) was formed as an independent organisation to implement the proposals agreed to by the groups concerned.

4.18 The aim of the Internet Watch Foundation is to:

    "enhance the enormous potential of the Internet to inform, educate, entertain and conduct business by:

    • hindering the use of the Internet to transmit illegal material, particularly child pornography; and
    • encouraging the classification of legal material on the Net in order to enable users to customise the nature of their experience of the Net to their own requirements". [6]

4.19 The IWF group is currently working with the UK industry to develop a rating system for web pages and for Usenet news groups that is suitable for UK requirements. However, IWF recognises that any effective method of dealing with the problem of illegal (in any particular country) material on the Internet must involve international co-operation so that action can be taken in the country where the material is coming from.

4.20 One of the Foundation's initiatives was to set up phone, fax and e-mail hotlines for people to report child pornography on the Internet. In a Press Release dated February 1997, IWF reported that in January (its second month in operation) it received 56 reports:

    Follow-up action was taken on over 100 of the items referred to in the reports. The pattern of reports was similar to that noted in December: the majority were about IWFs priority action area of child pornography; most potentially illegal items were news items in a limited range of news groups; nearly all of them appeared to originate from outside the UK, mainly from the USA. [7]

Other European Countries

4.21 Electronic Frontiers Ireland has proposed a child pornography hotline based on the scheme already operating in the Netherlands. The Dutch hotline also provided a model for the Internet Watch Foundation's hotline in the UK. The Dutch hotline is the result of a collaborative effort between the Dutch Foundation for Internet Providers (NLIP), the Dutch Internet users, the National Criminal Intelligence Service (CRI) and the National Bureau against Racial Discrimination. It is worth noting that in all the countries reviewed in this report, "child pornography" refers to children under the age of sixteen.

4.22 The approach adopted by the two hotlines mentioned above relating to child pornography on the Internet, is to check the report received against an agreed set of criteria. If the report fulfils the criteria, a warning is sent to the person posting the pictures on the Internet and a request is made for them to be cancelled. If the originator of the pictures does not cancel within a set period (7 days in the Netherlands), the complaint is forwarded to the local police for action. The European Union has a "Hotlines and Instructions" web page [8] which lists hotlines that can be contacted regarding illegal and harmful material and material relating to child abuse in particular. In addition to the countries already mentioned in this report, hotline contacts are listed for Austria, Belgium, Sweden and Norway. There are also contact numbers for ECPAT (End Child Prostitution in Asian Tourism).

4.23 The ABA has indicated its "in principle" support for the establishment of an e-mail hotline in Australia, along the lines recommended by the Parliamentary Joint Committee on the National Crime Authority in its 1995 report, Organised Criminal Paedophile Activity. The government indicated that it considered the recommendation "a worthwhile proposal" but felt that any e-mail sent in about possible criminal paedophilic activity might have to be encrypted. The Committee believes that such a hotline is long overdue for Australia and that it should be established as a matter of priority. It does not necessarily have to be only an e-mail service. The telephone can provide the anonymity required and the fax can also be used if it is suitable.

The Committee recommends that the ABA or another appropriate government body establish an e-mail, phone and fax hotline service to receive information about possible illegal material (including paedophilic material and child pornography) found by users on the Internet. (Recommendation No 14)

4.24 Germany is the European country that has moved furthest down the path of regulation of the Internet through legislative means. It is concerned with both sexually explicit material and "hate speech", particularly anti-semitic messages. In early 1996, CompuServe took a number of offending newsgroups (around 200) off its servers after the Bavarian authorities arrested two of its managers. However, it restored the sites after complaints from subscribers. In April 1997, the manager of CompuServe's German subsidiary was charged with failing, during 1995 and 1996, to block access by users to illegal material (including child pornography, violent pornography and pornography involving animals) and Nazi material on the Internet.

4.25 The German prosecutors contend that CompuServe "knowingly allowed" access to the material and that it had the "technical and organisational" means to prevent it. The prosecution is proceeding under existing German laws governing the distribution of pornographic material. However the German government introduced legislation into Parliament in April 1997 to deal specifically with offences committed through the use of on-line services. The proposed legislation sets out the responsibilities of service providers for content accessed by means of a system provided by them, including:

    (2) A service provider will only be responsible for third party content which is accessed by means of the service provider's system if:

      (a) the service provider has knowledge of such content; and

      (b) blocking its use is both technically possible and be reasonably expected

      (3) A service provider will not be responsible for third party content to which they merely provide access for use. The automatic temporary storage of third-party content because of a user access constitute the provision of access; [9]

4.26 The Swedish government is currently circulating for comment a proposal for legislation to address computer-mediated communication. If the proposal was adopted, material that is currently illegal according to other Swedish laws, such as copyright laws, libel laws and child pornography laws) would be illegal to distribute on Bulletin Board Services (BBS) and the Internet. Systems operators (sysop) would be required to remove illegal items under the following conditions:

    1. The item was obviously illegal. i.e. on borderline cases, the sysop does not have to remove the item.

    2. The sysop was aware of the existence of the item. i.e. the sysop is not forced to pre-censor information, but if the sysop is informed of the occurrence of illegal items in the data base, these must be removed.

    A sysop which does not follow these rules can be punished by fines or a maximum of 2 years prison. [10]

4.27 The French government amended the French Telco Act 1996 (Amendment No 200 or the Fillon Amendment) in November 1996 to enable two government authorities to control the Internet. The legislation created a Comite Superieur de la Telematique (CST) under the authority of the Conseil Superieur de l'Audiovisuel (CSA) to make recommendations on what types of content would be deemed permissible on-line. It also spelled out the conditions under which on-line service providers would be free from criminal liability for content to which they gave access. The draft legislation was severely criticised by the French Association of Internet Users (AUI) and it was referred by a group of French Senators to the 'Conseil Constitutionel' for advice about whether the proposed amendments were constitutional. On 24 July 1996, the Conseil Constitutionel ruled that some of the proposed amendments were unconstitutional. The government made some changes and the legislation was passed in November with AUI protesting strongly against the powers conferred on the new CST and the CSA.

4.28 The French are promoting the international approach to problems posed to legislators, by the global nature of the Internet. In April 1996, the then Telecommunications minister Francois Fillon proposed an international convention and, in October 1996, his department released a draft "Agreement on international co-operation with regard to the Internet" for consideration at a OECD ministerial conference that year.

4.29 The document proposes the establishment of a code of conduct by participants in the industry and suggests that each signatory would "take the necessary provisions to ensure that the players under its jurisdiction comply with the provisions of national law when transmitting or disseminating content on the Internet" particularly with regard to:

  • respect of human dignity;
  • protection of privacy;
  • consumer protection
  • protection of copyright.

The document also proposes co-operation between judicial branches and law enforcement agencies in order to "prevent and suppress any use of networks which contravenes public order and public security." [11]

4.30 Switzerland's Federal Office of Justice released a report in May last year by an Intergovernmental Working Party that had looked at the penal, dataprotection and copyright aspects of the Internet. The report considered the role and responsibilities of access (or service) providers in relation to illegal activities on the networks to which they provide access. Referring to how existing Swiss law might be applied, the report referred to a decision of the Supreme Court of Switzerland , where the court held that a telecommunications service provider would be guilty of aiding and abetting an offence against Swiss law concerning pornography if the service provider made the service available in the knowledge that it would be used to disseminate pornographic recordings which were available to persons under the age of 16.

4.31 The European Commission (EC) maintains a number of web pages about the Internet. It has released two papers investigating the legal and policy issues raised by regulation of on-line content. The EC web pages also has advice available to parents and, as mentioned earlier, a list of the countries which maintain hotlines or contacts points for reporting of illegal material on the Internet. The two EC papers are:

    (1) Green Paper on the protection of minors and human dignity in audiovisual and information services, [12] and

    (2) Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the regions on Illegal and harmful content on the Internet. [13]

In the second paper, the Commission advocates a number of local initiatives but also, international co-operation including:

  • a possible convention on illegal and harmful content on the Internet; and
  • the development of minimal standards for illegal content on the Internet.

Singapore

4.32 Since July 1996, Singapore has implemented a class licensing system under the authority of the Singapore Broadcasting Authority (SBA). Under the scheme, Internet Service Providers must register with the SBA (for a fee) and they must provide information and undertakings required by the SBA. The undertakings include that the licensed ISP shall "use its best efforts" to ensure that:

    (a) the service complies with any Codes of practice issued by the SBA from time to time; and

    (b) the service is not used for any purpose and does not contain any program that:

        (i) is against the public interest, public order or national harmony; or

        (ii) offends against good taste or decency.

4.33 Internet Content Providers must register with the SBA if they are providing content, especially religious and political content on an "organised basis". Groups engaged in discussions about the topics just mentioned must also register as must on-line newspapers targeting a Singapore clientele. Individuals providing content need register with the SBA only if they are providing web pages for political or religious purposes and are required by the SBA to register. The SBA has issued "Internet Content Guidelines" which prohibit certain material concerning public security and national defence, racial and religious harmony and public morals. [14] The Committee was also told that Singapore blocks access to sites considered unsuitable (presumably by the SBA) by using a proxy server. [15]

Other Countries

4.34 In Japan, the government approach is to encourage the use by Internet Service Providers of filtering software and the use of labelling. In February 1997, an Internet news item stated that the Japanese Ministry of International trade and the Electronic Network Council were "working together to develop filtering systems that will deny access to crime-, sex- and violence-related Internet sites. The report refers to the development of "smart chips" which like the television "V" chips would automatically block access to objectionable sites and require the user to enter a special password in order to have access.

4.35 In February 1996, the Chinese government issued strict regulations requiring potential Internet subscribers to register with the police to block 'politically destructive information'. The Ministry for Posts and Telecommunications was believed to be planning to use filtering software to give Chinese users access to approved sites only. In September 1996, Associated Press reported that China had banned access to a large number of Web sites by using filtering devices. Taiwanese and western news outlets are among those sites as are sites portraying sexually explicit material.

4.36 Malaysia is also contemplating laws to govern the use of the Internet and a government source has indicated that the laws would be more comprehensive than those introduced in other countries.

4.37 Vietnam imposed restrictions on Internet access in May 1996, making Internet users responsible for the information they receive and provide. The General Directorate of Posts and telecommunications states that "Internet subscribers will only be allowed access via companies which restrict information in accordance with state regulations". The government will supervise all Internet content. The United Arab Emirates announced in January 1997 that all Internet subscribers in that country will only be able to access the Internet via a proxy server which will be operated by the government run Etilsalat. The proxy server will block sites on the basis of a refused access list. Those who wish to by-pass this system would need to constantly change their addresses. Saudi Arabia and Iran are still considering legislation to regulate Internet content. [16]

International co-operation

4.38 4.39 The Committee was told that it was pointless to introduce regulations in Australia because: "That does not deal with the problem. Ninety-nine per cent of the Internet is outside the borders of this country and we have to accept that as a fact". [17] As the review of overseas initiatives in the above paragraphs indicate, the fact is that other countries are addressing the issue of how to regulate the proportion of illegal content providers that falls within their jurisdiction. The Committee believes that co-operation at international level is essential in order to effectively address the problems raised by illegal material on the Internet, in particular the issues of child pornography and paedophilia.

4.40 The Committee notes that those issues were raised at the last Ministerial meeting of the OECD in May 1997 and that the Australian representative, Deputy Prime Minister and Minister for Trade, the Hon. Tim Fischer reported that the meeting agreed that the use of the Internet for criminal purposes would be addressed immediately in international fora by member countries. [18]

4.41 The Committee understands that member countries of the OECD are poised to discuss at their July meeting a Draft paper on the issue of illegal content on the Internet prepared by that organisation's Committee for Information, Computer and Communications Policy. Australia will be represented at that meeting. The OECD countries will investigate possibilities for instituting international co-operation in the area of regulation of on-line services. In addition, the Australian Broadcasting Authority is completing its pilot study of regulatory developments in Australia, Singapore, Malaysia and the United Kingdom, commissioned by UNESCO. The study is also looking at the issue of labelling, particularly with the use of the PICS infrastructure.

The Committee is strongly supportive of the initiatives for international co-operation in this area.

The Committee recommends that the Australian government continue its discussions in international fora with the aim of developing an international Agreement aimed at facilitating co-operation between countries in developing protocols for pursuing criminal activities carried out through the use of computer on-line services.

(Recommendation 15)

 

Footnotes

[1] Note: In this chapter on overseas developments, the Committee has relied partly (but not exclusively) on material provided by the Department of Communication and the Arts (DoCA) in Submission No 43. Proposals for regulatory measures in various countries is addressed in some detail in that submission.

[2] Submission No 43 (DoCA)

[3] CAIP Code at: http://www.caip.ca/caicode.htm

[4] Submission No 43, p.3 (DoCA)

[5] Submission No 43, p.18 (DoCA)

[6] http;//www.internetwatch.org.uk/hotline/intro.htm

[7] http;//www.internetwatch.org.uk/pr.htm

[8] http://www2.echo.lu/best_use/hotlines.htm

[9] Submission No 43, p.9 (DoCA)

[10] http://www.dsv.su.se/~jpalme/SOU-1996-40-eng.htm

[11] Submission No 43, p.12 (DoCA)

[12] http://europa.eu.int/en/record/green/gp9610/protec.htm

[13] http://europa.eu.int/en/record/legal/index.htm

[14] Submission No 43, p.10 (DoCA)

[15] Submission No 7, (Ms Graham)

[16] Submission No 43, (DoCA)

[17] Evidence, p.224 (Mr Taylor)

[18] The Hon. T. Fischer, Minister for trade and Deputy prime Minister, Ministerial Meeting Advancing Australia's Interests, Press release, , 27 May 1997