Senate Select Committee on Information Technologies Reference: Broadcasting Services Amendment (Online Services) Bill 1999 MINORITY REPORT BY SENATOR STOTT DESPOJA 1. Executive Summary The Australian Democrats do not advocate unsuitable Internet material being made available to minors. We oppose the restriction of adult access to material that would generally be acceptable to reasonable adults. We oppose the restriction of adult access to Internet content where that same content is available in other media. This Bill is both unworkable and undesirable. We believe the Bill is not consistent with previous recommendations of the Senate Select Committee on Information Technologies and its predecessors. While we were not in full agreement with those recommendations, we believe that this Bill is significantly more restrictive. (2.2) We have found little evidence of the ``overwhelming community concern'' claimed by the Government as the motivation for this legislation. In fact, evidence before the Committee indicates that the Australian public is far more concerned about inappropriate censorship. Evidence also indicates that extreme violence and racism are greater concerns than explicit sexual material. (3.1-3.2) Internet users do have a number of serious and legitimate concerns about Internet regulation, including hate speech, vilification, defamation, privacy, gambling, security, encryption and the legality of electronic transactions. These should be addressed as a matter of urgency. (3.3) The Government has not demonstrated any problems with the use of existing legislative provisions for dealing with inappropriate content, including Section 85ZE of the Crimes Act 1914 (Cth). (3.5) We are concerned about the Government's unwillingness to address the civil liberties issues raised by this Bill. Restrictions on freedom of speech and imprecise enforcement provisions (in some cases privatising law enforcement functions) are serious and should not be lightly dismissed. (4.1) The Bill proposes a scheme of content regulation which treats the Internet very differently from analogous media. Content which is legal in one medium could be illegal in another. (4.2) The Australian Democrats do not believe that Internet content regulation should result in a medium which is brought down to a lowest common denominator. Regulation must take into account the diversity of the Internet, and the legitimate and responsible use of the medium by adults. (4.3) If the Bill is to proceed, it should include some guarantees of the privacy of both transactions and personal details of Internet users. The possibility of logging transactions via proxies would result in a major invasion of privacy. (4.5) The Australian Democrats are concerned about the unfavourable comparison between Australia and other countries which have attempted to block Internet content. These countries include Burma, Iran, Saudi Arabia, China, Malaysia and Singapore. Malaysia has recently abandoned attempts to censor Internet content, primarily for performance reasons. Singapore blocks a relatively small number of sites as a ``statement of values''. (4.6) The evidence overwhelmingly suggests that the proposal to block overseas Internet content is technically flawed (there are major performance implications and blocking is able to be circumvented) and would have major economic consequences. (5.1-5.3) A number of techniques exist to circumvent blocking technologies. These include the use of proxies outside Australia, encryption, protocol tunnelling, private networks and the use of non-terrestrial communication channels. (5.4) Proxies are usually restricted to specific protocols (such as the World Wide Web). Content can be easily shifted to alternative protocols to bypass proxy based filters. (5.5) The Australian Democrats are concerned about inappropriate and inadvertent blocking. This concern applies generally to filters, but is of particular concern when the blocking is compulsory. (5.8) Blocking lists used in filters should be fully disclosed. Secret lists of which materials are to be blocked could lead to abuse. Any censorship in a liberal democracy must be open and accountable. (5.9) The creation of an unenforceable law such as the provisions blocking overseas content is highly undesirable. Failure of this Bill would be likely to lead to a more punitive regime for content control. (6.3-6.4) The Australian Democrats have numerous concerns with the drafting of the Bill as it has been presented to the committee. These include undefined terms, broad discretions, harsh penalties and the possible abuse of provisions. (6.7) The Australian Democrats believe that self-regulation and co-regulation need to be more carefully investigated in the context of content regulation. (6.9) The Bill is likely to have a significant impact on the development of the Internet economy in Australia. This will result from direct costs incurred by Internet service providers and the indirect costs of content creators and hosts moving off-shore to avoid the regulations. (7.1-7.3) The financial impact on small and regional Internet service providers is likely to lead to a shake out in the Internet industry. This could have a dramatic effect on the availability of Internet services in many parts of Australia. (7.5) Client-side filtering technologies and differentiated Internet services offer a workable alternative to blocking materials at the source or in transit. (8.4) Client-side technologies need to be regulated to ensure that appropriate content is not inadvertently or inappropriately blocked. Users need to be fully aware of the assumptions and models that are used to block content. (8.4.3) The Australian Democrats believe that adult responsibility should be a central component of any attempt to control the way in which young people use the Internet. (8.6) We support the creation of appropriate content for young people. It has been suggested that the lack of appropriate content is one of the factors influencing the use of the Internet by young people. (8.7) The Australian Democrats would support a system of Internet content regulation which was based on empowerment of responsible adults rather than a ``command and control'' censorship mechanism. This would need to include education and the availability of client-side filtering technologies. (8.8) The Australian Democrats regret the sensationalist way in which the Government has labelled critics of this proposed legislation. (9.4) The Australian Democrats believe that this Bill has been prepared with undue haste and that consideration should be given to alternative proposals based on education and empowerment of users, and on an understanding of the responsibility of those supervising Internet use by young people. (10.4) 2. Background This Committee is the successor to the Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies. That committee had first examined the regulation of video and computer game content in 1993. In April 1995 hearings began into the regulation of online information and entertainment services. The committee reported on the regulation of computer in-line services in June 1997. Subsequently, the committee was renamed and continued to examine regulation of these industries through an inquiry into self-regulation in the information and communications industries. A report on this reference has not yet been presented to the Senate, although a report was presented on the need for the Committee in the Thirty-Ninth Parliament. The previous incarnation of this Committee made a number of recommendations concerning the regulation of online content. While the Australian Democrats disagreed with many of those recommendations, we nonetheless wish to draw attention to recommendations which have been largely ignored by the Government in the drafting of this legislation. For reasons which have not been made clear, this legislation goes significantly beyond those recommendations in both reach and coverage. In particular those recommendations did not include take-down provisions and did not require the blocking of content for either locally or internationally hosted materials. While there are obvious and significant differences between the Australian legal environment and that of the United States, it is instructive to briefly examine the international context of content regulation. Clearly, the debate on this issue in the United States is centred on the centrality of free speech as protected by the First Amendment to the United States Constitution. Despite this, there have been attempts to regulate Internet content in that country. The first attempt was struck down by the US Federal Court in the case of ACLU v Reno (this result was later affirmed by the US Supreme Court). In that case, the court held that free speech on the Internet was deserving of special protection as the Internet was ``... the most participatory form of mass speech yet developed.'' In that same judgement, the court held that ``The plaintiffs in these actions correctly describe the `democratizing' effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them.'' As one submission to the Committee has stated, this is precisely why the medium is so appealing to many people (Mr Mark Newton, Submission 75). In late 1998, the Government signed a Memorandum of Understanding with the United States Government on cooperation in electronic commerce. When announcing this proposal, the Prime Minister indicated that this was an agreement on ``key policy principles of private sector leadership, minimal government intervention and self-regulation wherever possible.'' The Australian Democrats wish to note the following clauses included in the Memorandum: ``4.A The internet is a medium for promoting, in a positive way, diffusion of knowledge, cultural diversity and social interaction, as well as a means of facilitating commerce. Governments should not prevent their citizens from accessing information simply because it is published online in another country. ``4.B Empowerment of users, including parents in relation to material which may be unsuitable for children, should be achieved through information and education, as well as through the availability of filtering/blocking systems or other tools. Industry self-regulation will assist in the promotion of content labelling ``4.C Industry will need to deal appropriately with complaints about prohibited content. We encourage international cooperation between law enforcement authorities to prevent, investigate and prosecute illegal activities on the internet and the illegal use of e-commerce by criminal and terrorist organisations.'' Once again, while the Australian Democrats are concerned about the content of some of these clauses, we wish to draw attention to the significant differences between the intentions expressed by the Government in these clauses and the content regulation proposal embodied in the Bill before the Committee. 3. Demands for reform? Genuine and legitimate concerns? The primary justification given by the Minister when introducing the Internet censorship proposals was community concern. It is difficult to identify where these concerns might have come from, as they have not been used by the Government to substantiate their arguments. Indeed, there is significant evidence that the Australian community is broadly opposed to the imposition of Internet censorship. One of the possible sources of these apparently unsubstantiated community concerns might be the continuing sensationalised reports in the media regarding Internet content. These reports have painted a picture of the Internet as a medium where the majority of content is inappropriate and can be easily accessed. Indeed, one member of the committee made the following statement during the hearings: ``We are talking about the fact that you have only got to press P on the Internet and all this stuff appears free of charge in front of you and young children can access it.'' This is a slight exaggeration, but it seems to have been the sort of `fact' underlying the justifications for this legislation. This statement is perhaps an indication of the serious lack of understanding of both the problem and possible solutions. Community Opinion Community opinion has been surveyed on a number of occasions, and the overwhelming majority of those surveyed have expressed serious concerns and opposition to censorship. There was no evidence before the inquiry that indicated the broader community were in favour of Internet content regulation. Sunday survey A poll by the Sunday program on Sunday 25 April 1999, posed the question: ``Which of the following are you most concerned about? Sex and nudity on television? Violence on television? Senators telling us what we can watch?'' The results of the survey had 4% of respondents concerned about sex, 12% concerned about violence, and 84% concerned about Senators telling us what we can watch. This would appear to indicate a general resentment among Australians about the practise of censorship. Roy Morgan/Eros Foundation A survey was commissioned by the Eros Foundation from Roy Morgan in early 1999. The results clearly demonstrate a number of significant conclusions. Specific findings include a clear majority of adults being in favour of the film Lolita being available for viewing by adults. The survey also indicated overwhelming opposition to political interference in the classification process. There was also overwhelming support for the continued availability of non-violent erotic videos from properly licensed book stores. Another conclusion of the survey was that the overwhelming majority of those surveyed would ban extremely violent films and extremely racist films before they would ban sexually explicit films. www.consult www.consult undertook a survey in January and February 1999 of Australian Internet users. Around 25,000 surveys were submitted. One of the survey questions asked ``Do you think the government should censor the Internet?" Only 9.9% of respondents chose the option: "I think the government should censor the Internet." 62.5% of respondents chose: "I think that parents should be responsible for their kids' Internet use" 22.5% chose "I don't think anyone should censor the Internet" 4.1% chose "I don't care" 0.6% of survey respondents "Did not respond" to this particular question. The Age (25 April 1997) A poll by The Age in April 1997 showed that ``... 83% of Australians thought that non-violent sexually explicit X-rated videos should be legally available.'' This survey was undertaken in the context of major efforts to ban these videos. This clearly indicates public opposition to censorship. ABC phone-in A phone-in session on ABC Radio National in October 1998 featured a discussion with an ABA official about Internet content regulation, followed by a talkback. Those who phoned-in were unanimously opposed to Government censorship of the Internet. A follow-up program took more calls and was inundated with further callers objecting to Federal Government attempts to control content. It is believed that there were no callers in favour of content regulation. Submissions to the Committee Submissions to the Committee and communications received from the public indicate an overwhelming opposition to this content regulation proposal. Many concerns were expressed, ranging from freedom of speech issues to technical issues to legal issues. Users' genuine concerns Users of the Internet have many concerns about aspects of the Internet, but, once again, these other concerns have been bypassed in an attempt to regulate sexually explicit content. Internet users are concerned about some types of content, but these concerns are not adequately addressed by this legislation. Users' main content concerns include hate speech, vilification and defamation. In relation to the censorship of content more generally, the public has indicated repeatedly that they are more concerned with violence and racism than with sexually explicit materials. The Roy Morgan poll commissioned by the Eros Foundation very clearly demonstrates this point. Privacy of both transactions and communications remains a significant concern to Internet users, but this is yet to be addressed by Government. In particular, there has been no move to regulate the collection of information from children. In addition to that specific concern, there have been no moves to protect the privacy of information generally gathered from Internet users, or information gathered about Internet use. Many users remain concerned that monitoring of their Internet use might be used against them in some way. It is should be noted that while the Government has moved to regulate inappropriate content on the Internet, there has still not been investigation or attempted regulation of gambling via the Internet. Despite expressed community concerns on this issue, the Government continues to regard online gambling as a legitimate area of growth, and as an appropriate part of the online content environment (Media Release, Minister for Communications, Information Technology and the Arts, 23 March 1999). The failure to properly address issues of security and encryption has been one of the most serious impediments to the growth of the online economy worldwide. Users remain wary of using electronic commerce services in the absence of highly secure systems. Internet users are wary of electronic transactions which are not protected by an appropriate legal regime. The Government's recent proposals only go part of the way towards the provision of this legal environment. Misrepresentations Columbine High School tragedy It is distressing that the tragedy at Columbine High School in Colorado coincided with this inquiry. Statements were made by witnesses, leaders and members of the Committee which apparently indicated that the Internet was in some way responsible for the incident. While it would appear that the perpetrators were Internet users, the implication that this incident was caused or encouraged by the Internet has not been substantiated. There is a growing body of evidence that the incident has led to punitive and discriminatory treatment of young people within the school system who are considered different. In particular, young Internet users in the United States have been subject to extensive discrimination and victimisation following this incident. We will continue to monitor this situation with some interest. General rhetoric The Government has portrayed the Internet as an environment in which pornography and other content inappropriate for children is the norm rather than the exception. This is rather unfortunate and has perpetuated the misconception that the Internet is a dangerous environment. This portrayal has become a convenient and self-perpetuating myth which has obscured the immense positive effects of this new medium. Existing Legislation No evidence was provided to the committee indicating the failure of existing laws dealing with offensive Internet content. Research indicates that numerous prosecutions have been brought successfully using existing provisions such as Section 85ZE of the Crimes Act 1914 (Commonwealth). Numerous State and Territory laws have also been invoked successfully to deal with problematic content. It is the case that most existing laws do not attempt to block access to materials which are merely explicit and are not considered ``offensive.'' As discussed below, it is the belief of the Australian Democrats that appropriate content regulation would combine existing legislation with the empowerment of parents and other responsible adults. Censorship and Civil Liberties Free Speech While there is no constitutionally guaranteed right of free speech in Australia, there is a widespread belief among Australians that there is some guarantee of free speech. In our system of government, the right to free speech is defined as by what remains after the boundaries have been defined by courts and the parliament. Australia is a signatory to a number of international treaties, covenants and conventions which promote freedom of speech in conjunction with other freedoms. Indeed there is the possibility that this legislation could be challenged with a case brought under the Optional Protocol to the International Covenant on Civil and Political Rights. It is certainly the case that free speech is limited in all countries, including the United States. In that country, obscene materials are not protected by the First Amendment. However, the restrictions proposed in this Bill can not be justified in a liberal democracy. Analogous Media The Government has portrayed the Bill before the Committee as dealing with content in a similar way to analogous media. It is difficult to understand what is meant by analogous media since there are few similarities between the Internet and existing media. The Australian Democrats do not believe that this Bill deals with Internet content in a manner analogous to the regulation of either books or film and video. One submission indicated that the effect of the Bill would be to create a new class of content which was legal in one medium and illegal in another. The Australian Democrats agree that this is not an appropriate outcome in any media regulation. Lowest Common Denominator Regulating the Internet to make all content suitable for young children is likely to have a dramatic chilling effect on the medium as a whole. The effects of this legislative proposal are likely to be wider than intended. What is offensive and obscene? The question of who makes decisions regarding the appropriateness of content has always been a vexed one. Unfortunately, the question of community standards has been bypassed in consideration of this Bill, primarily due to the adoption of standards carried across from other media. The proposed regime applies those standards in a significantly more restrictive way which discriminates heavily against content made available via the Internet. Privacy Privacy has already been mentioned as a concern of Internet users, but there are specific concerns in relation to the technologies which have been indirectly endorsed as appropriate blocking tools. In general this is due to the possibility of those tools being used to log and monitor an individual's Internet usage. International comparisons Witnesses and submissions referred to the unfavourable comparison that might be drawn between Australia and other countries which have sought to censor and block Internet content. While the policies of Burma, Iran, Saudi Arabia and China were mentioned briefly, there was a particular focus on the situation in Singapore and Malaysia. According to evidence before the Committee, the situation in Singapore is that a small number of sites are blocked as a ``statement of values'' of the Singaporean government. There does not appear to be an attempt to block all offensive material from entering the country. Internet service providers are encouraged to take their own initiative against offensive content. They are not required to monitor the Internet, or their users' Internet activities. Evidence of the Malaysian situation indicates that the Malaysian Prime Minister announced during March 1999 that there would be no censorship of the Internet. Contrary to assertions made by Committee members, the removal of censorship provisions does not just apply within the Multimedia Super Corridor. It should be noted that censorship was used to prevent the distribution of information about political opposition to the Malaysian government. That possibility alone should indicate against the imposition of a widespread censorship regime in Australia. Technical Feasibility The most significant problem with the Bill is undoubtedly the failure to address the technical arguments which have been made against Internet censorship. While the Australian Democrats are not in favour of technological determinism as a guiding force for regulation, it must be acknowledged that technical feasibility necessarily plays a central role in attempts to regulate any media. Evidence was presented by Dr Philip McCrae and the CSIRO about the feasibility of blocking schemes as proposed for dealing with international Internet content. In the view of the Australian Democrats, this evidence is credible and should not be dismissed. The primary concerns raised in relation to proxy or router-based blocking technologies were performance issues. It is believed that minor additional delays in Internet communication could result in dramatic performance constraints when applied cumulatively. A number of techniques exist to circumvent blocking. Proxies which are based outside Australia can be used to rewrite queries and disguise responses so that they do not appear to originate from a blocked site. Encryption, protocol tunnelling, private networks and non-terrestrial communications also enable users to bypass the imposition of blocking technologies. In addition, proxies are usually restricted to specific protocols on the Internet, such as the World Wide Web. Content can easily be provided via new services which are specifically designed to bypass these types of restrictions. Indeed, content is easily be shifted to FTP sites, mail servers, newsgroups and a range of other, less well known, services. This has been the case in relation to other questionable activities such as software piracy, which has moved underground. A number of witnesses and submissions to the committee quoted John Gilmor's words on Internet censorship: ``The Internet interprets censorship as damage and routes around it.'' Another author referred to this same issue with the reminder that, ``the Internet was built to resist the Russians, but it turned out to resist regulation.'' It is this resistance to regulation which should convince us of the need to find alternatives to top down regulation, including the empowerment of users. The Bill draws a largely illusory distinction between local and internationally available materials. This distinction is obviously tied to Australia's jurisdictional boundaries, but is somewhat meaningless in the Internet context where distances are measured in packet travel times rather than physical distance. Content owned and controlled by Australians can easily be hosted outside the physical jurisdiction and indeed evidence was heard that content hosts (of all types of content) would rapidly move material outside Australia to prevent application of the content rules. This would result in a major impediment to both the development and distribution of Australian content. Another problem raised by the prospect of blocking materials from outside Australia is the problem of inappropriate and inadvertent blocking. This is a general concern with any blocking technology, but it has specific relevance when discussed in the context of compulsory border filters. One submission drew attention to a German attempt to block access to a specific set of pages on a large host based in the Netherlands. The blocking resulted in the entire server being unavailable, to the significant disadvantage of many other content providers on that host. The German government was forced to back down. If any type of blocking is used, it is important to have full disclosure of blocking lists. Secret lists would be open to abuse and would most likely lead to a black market for the list itself. In general, any censorship proposal in a liberal democracy must be open and accountable, to avoid the possibility of abuse. The proposal to block international Internet content would only be possible with the involvement and cooperation of all Backbone Service Providers. While the bulk of traffic apparently traverses links operated by a small group of large telecommunications companies, numerous examples were given about the use of alternative feeds. These include the use of satellite bandwidth and the routing of connections via private networks or alternative routes to the main connections to the United States. The cost of blocking in both monetary and performance terms would also constitute a major impediment to implementation. Routers able to undertake blocking at this scale are prohibitively expensive. Indeed one of the central issues in the abandonment of blocking in Malaysia has been the extra costs and performance issues associated with blocking. On a number of occasions, members of the committee suggested that the application of Moore's Law would overcome some of technical and performance limitations of Internet blocking. Moore's Law predicts a doubling of computing power every 18 months. However, it has been suggested that networking technology and indeed network bandwidth do not adhere to this `law'. In any case, the increasing sophistication of Internet content quickly swallows up any extra available computing power. For the reasons discussed in the CSIRO report and in other evidence before the Committee, the Australian Democrats do not support blocking as envisaged by the Bill. The use of client-side blocking or blocking at the ISP to create differential services may be an appropriate part of alternative content regulation schemes, but there are still concerns these possibilities. Legislation The Australian Democrats have numerous significant concerns with the legislation before the Committee. It is quite clear from the evidence before the Committee that the Bill does not address the Government's stated goals. The Minister's Second Reading speech claims that the Bill is intended to: ``... enact a regime which balances the need for the Government to meet legitimate community concerns about the publication of illegal and offensive material online, that is commensurate with the regulation of conventional media, while ensuring that regulation does not place onerous or unjustifiable burdens on industry and inhibit the development of the online economy.'' This may be the Government's intention, but as already indicated there are numerous problems. There is a continuing question as to the extent of community concerns. It is quite clear that the legislation is not in line with the regulation of analogous media. The regime is likely to place onerous and unjustifiable cost burdens on industry and the community and it would appear to be a major impediment to the development of the online economy. The Bill, as presented to the Committee, will result in the creation of a range of unenforceable laws. This is mostly result of the technical issues discussed above in relation to blocking. The creation of such a broad law which is potentially unenforceable could lead to a number of undesirable outcomes. Perhaps, most importantly, failure of this law would be likely to lead to demands for an even more punitive regime of Internet content control. In addition, there is the danger with such a broad brush approach that the law will be selectively enforced, leading to an arbitrary system in which discretions might be abused. In any area of regulation, a largely unforceable law is likely to lead to undermine confidence in Government and further distrust from the Internet community. The Bill attempts to compare the Internet with existing media and draws on broadcast analogies to justify some of its provisions. The Government must acknowledge that the Internet is a medium unlike any other. The Internet is unlike either broadcasting or narrowcasting as it does not rely on a one-to-many distribution mechanism under the exclusive control of content providers. In contrast to these media, the Internet allows all users to become publishers and is based on a `pull' (or demand driven) publishing model which requires users to actively request material before it will be provided. In the regulation of any human activity, we must understand the likely impact of prohibition. This is an expression of the concern that prohibition of an activity usually leads to distortions which drive the market for that activity underground. This has historically led to more serious problems than those which were originally intended to be controlled. As past experience amply demonstrates, a regime of prohibition would be likely to lead to a large black market in which genuinely offensive (or obscene) materials would have the same status as merely explicit materials. This would be a highly undesirable outcome. The Australian Democrats have a number of concerns related specifically to the legal construction of the legislation. The use of the phrase ``substantially similar'' (Clause 43(1)(c) ) could be used in combination with generic descriptions of content to significantly increase the scope of the content regulation regime. This has been justified as an anti-avoidance provision. In explanatory material the Government has repeatedly indicated that the phrase ``reasonable steps'' in Clause 37 should be interpreted as meaning those steps that are ``technically feasible''. Unfortunately neither ``reasonable steps'' nor ``technically feasible'' have been defined. The lack of concrete definitions is instead being touted as evidence of the flexibility required to adapt to new technologies. Clause 12(1) provides that content can not be reclassified within a period of two years. This is an unreasonable length of time in a fast moving medium and there is a concern that this provision could be invoked in combination with the ``similar content'' provision, resulting in significant impediments to content providers seeking to remedy problems. The use of Clause 34 to restrict material passing through Internet service providers could conceivably be used in combination with broad and generic descriptions of content to force ISPs to exercise editorial judgement over materials passing through their networks. The time limits set out in Clauses 35 and 45 are unrealistic when taking into account the low staffing levels and lean operational structures of many Internet service providers. Not all Internet service providers have staff permanently on call. The penalties in Clauses 78 and 79 are too harsh. Threats of major fines and Federal Court injunctions are not appropriate in an environment where the Internet service provider may not be aware of breaches. Questions of technical feasibility must also be addressed before establishing a penalty regime which could penalise Internet service providers in circumstances where blocking mechanisms may not be appropriate or available. The powers of the ABA in administering this content regulation regime have been poorly defined, leaving many issues to the ABA's discretion. Better definition of many aspects of the scheme would remove some of this uncertainty. Some of the most important aspects, such as the educational functions and the operation of the community panel have been left to the ABA to define. The question of what content is intended to be regulated by this Bill has not been carefully defined. It is unclear whether email is to be included in the definition or whether the definition includes streaming media (both live and prerecorded). This could result in both uncertainty and inappropriate application of the provisions. In addition to these concerns, concerns have been raised about the complex issues of jurisdiction inherent in any proposal to regulate the Internet. As has been recommended in previous inquiries, it is necessary for any content blocking mechanism to take into account the legal and technical complexities in blocking material originating in other countries. Particular concerns have been raised about Australia's liability in trade terms for the blocking of content legal in other countries, and the possibility of inadvertent blocking of appropriate content. The Australian Democrats remain concerned about the role of self-regulation and co-regulation in schemes regulating content. Self-regulation clearly leads to the significant possibility of privatised law enforcement. It is also likely to lead to the protection of industry interests as a higher priority than the interests of customers, both publishers and consumers. Economic Impact and Direct Costs As one of the few countries in the World with content controls, Australia would become a less desirable place to host or develop Internet content. This would be likely to have a dampening effect on the entire Internet industry in Australia as content providers moved material overseas to prevent any possible application of the Bill's content restriction regime. It is unfortunate that the evidence of many Internet industry leaders has been ignored in the proposed regime. Many commentators regard this as evidence that the Government does not understand the industry. There is concern that the Government is willing to sacrifice the immense promise of the medium (in economic and cultural terms) for the interests of a small number of concerned citizens. An alternative scheme, based on voluntary client-side blocking and a criminal regime for offensive content, would be unlikely to have the same dramatic impact on the development of the information economy in Australia. It is difficult to imagine who would benefit from the Bill's proposals in their current form. Some of the more cynical observers have suggested that the Government's proposal would be highly beneficial to the large multinational creators of `family' content. This type of content would be encouraged by a scheme which introduces uncertainties in the local market. The direct costs of the proposals in the Bill would be likely to bring about a major shake-up in the Australian Internet industry. The Australian Democrats oppose measures which could lead to a reduction in the diversity and coverage of Internet service providers in Australia. These measures would be likely to have a very damaging effect on small and regional ISPs, and on the Internet industry generally. Evidence about the direct costs of operating the proposed regime uncovered significant inconsistencies in Australia's censorship mechanisms. The major part of the costs of the proposed scheme would be payments directly from the Australian Broadcasting Authority to the Office of Film and Literature Classification. In the first year of operation, a figure of $1.25million has been allocated to pay fees to the OFLC for the classification of materials. The Australian Democrats are concerned that there would eventually be a push to shift these costs to the Internet industry following the commencement of the regime. This would bring the classification mechanisms into line with those operating for other media, where user-pays principles have been employed, to the likely detriment of small and foreign language film-makers. Possible Solutions A number of alternative solutions to the problem of Internet content have been considered on previous occasions. For reasons discussed by other authors, there continue to be major problems with some of these alternative schemes. One proposal which has previously been discussed is the compulsory labelling of materials. Schemes such as PICS are still under consideration internationally, but implementation has been delayed by slow development and by the difficulty of forcing content labelling. It is likely that labelling schemes will continue to develop and while they are currently not appropriate, they should remain in consideration. Another solution proposed in the past and also contained within this Bill is the use of a hotline for reporting inappropriate or offensive material. Alone, this has little hope of being a satisfactory solution, but it would be a valuable component of any content regulation process. Client Side Solutions Providing tools that empower users and operate at the client side of the Internet seems to be the most workable and desirable type of solution. However, this requires an understanding by parents and other responsible adults of their role in the use of the Internet by children and their own Internet use. As one of the few studies which has investigated Internet blocking and filtering technologies, it must be noted that the CSIRO report specifically endorses client-side blocking technologies as a technically appropriate solution. The Australian Democrats support the increased choices and control which is available through the use of client-side technologies. However, the Australian Democrats are concerned by some of the problems that arise with the unregulated use of client-side filtering technologies. Numerous cases and studies confirm that these filters often block material which it would be desirable to make available. Concerns have been raised about the blocking of sites referring to health issues such as breast cancer. Gay and lesbian sites, especially those for teenagers, are blocked by many filtering programs. Other examples of sites blocked include the anti-racism site `Hatewatch', safe sex sites, safe drug use sites, sites about feminism and sites about alternative politics. The Australian Democrats believe that any use of filters, whether client-side or ISP based, must be regulated to prevent the imposition of value systems which are not explicit. Users must know exactly what will be blocked and alternatives must be made available which do not promulgate narrow American family values. Systems which are based on complex weighting schemes, such as that provided by Clairview, should only be employed after a rigorous and open examination of the inherent assumptions made about content. Blocking lists and weighting schemes must be fully disclosed, to prevent abuse. In a democracy, censorship mechanisms can not be protected as trade secrets. Education A large component of any Internet content regulation scheme must be education, for both Internet users and those placed in supervisory positions of responsibility. Education has been envisaged as a part of the current Bill's proposals, but the Australian Democrats believe that education and responsibility should be the core of any proposals to regulate Internet content. A comprehensive education framework would need to include computer training to enable a greater understanding of the benefits and limitations of the medium. Education should focus on empowering individuals and explaining how inappropriate content can be avoided or controlled. Adult Responsibility In general, the Australian Democrats believe that adult responsibility is the most crucial component in any attempt to control the way in which minors use the Internet. A number of analogies were suggested by witnesses and in submissions, and it is striking to note that most envisaged a high degree of adult responsibility for the behaviour of young people. An alternative view was that the use of the Internet needed to be made safe so that young people could use it without supervision or guidance. One submission referred to the stark contrast between the treatment of the Internet and the physical space. That submission rightly stated that we would condemn parents who allowed their children to wander in an area like Sydney's Kings Cross, but we don't seem to have the same concerns about the Internet. (Mark Newton, Submission 75) The Australian Democrats are concerned about the reduced significance of adult responsibility envisaged within the Bill. The Internet should not be used as a babysitter, and parents and other responsible adults should be more involved in supervising and discussing the use of the medium with young people. Responsible Internet use is likely to be the result of education and negotiation. Parents, teachers, librarians and other adults need to be empowered to deal with the issues that arise. Appropriate Content for Young People The continued lack of appropriate content for young people is another factor in the Internet regulation debate. One witness suggested that the best approach to managing minors' use of the Internet would be to ``create compelling, youth focussed content.'' (Young Media Australia, Submission 62) The Australian Democrats support the creation of appropriate content for young people as a major component of any proposal to manage Internet usage in Australia. Conclusion The Australian Democrats believe that an approach based on regulated client-side filtering, optionally filtered Internet service (against either black lists or white lists), education and the creation of appropriate content would be effective. This approach has the advantage that the tools are already available. Client-side filtering and differential Internet services are available and are easy to use and effective. This approach would be protective of the rights and freedoms of adults, it would accommodate a diversity of values and it could provide a system of positive guidance for children. However, a responsibility based approach requires parents and other adults to be comfortable with the medium and to be empowered to make decisions concerning the use of the Internet. In general, the Australian Democrats would prefer a proposal for Internet content regulation which was centred on empowerment rather than a ``command and control'' regime. Process A number of witnesses and Committee members have expressed concern about the ``unseemly haste'' (Electronic Frontiers Australia, Submission 78) with which this Bill has been drafted, introduced and investigated. It should be noted that the issues this Bill seeks to address are not new and have been investigated by Committees over a lengthy period. It is thus all the more surprising and concerning that there has been a rapid (and apparently non-negotiable) rush to legislate in this area. The Australian Democrats are also highly critical of the timing and manner of operation of the Committee in its investigation and reporting on this reference. The deadline for submissions was unduly short. Hearings were held at very short notice with little time for witnesses to prepare. Indeed, three evenings of hearings were conducted prior to the closing of the deadline for submissions. This resulted in wasted time during the hearings while witnesses outlined positions which would normally have been available prior to the hearing in the form of submissions. As is often the case, the Committee process itself was not used to expand the Committee's understanding of the issues, but appeared to be used mostly as a forum in which to discredit witnesses. Throughout the process leading to the Bill and during the Committee process, the Minister for Communications has also sought to discredit any parties not in agreement with the proposals. The Australian Democrats regret the insulting, demeaning and inaccurate way in which witnesses and other opponents have been characterised during this process. In particular, the characterisation of opponents as paedophiles, or as friends of paedophiles, remains a highly emotive and misleading aspect of media releases and statements made by the Minister. Conclusion In conclusion, the Australian Democrats believe the Bill in its current form is both unworkable (for the technical reasons discussed above) and undesirable (due to its impact on rights and freedoms, and because of its failure to empower responsible adults). The Bill is likely to be unenforceable and could have a major effect on the development of the Internet industry in Australia. The proposal has already embarrassed Australia among international Internet professionals and it is likely to cast doubt on Australia's leading role as a liberal democracy. The Australian Democrats believe that this Bill has been prepared with undue haste and that consideration should be given to alternative proposals based on education and empowerment of users, and on an understanding of the responsibility of those supervising Internet use by young people. Natasha Stott Despoja May 1999
Senate Committee 1999 << Federal Net Censorship << Internet Censorship/Free Speech << Danny Yee