AUSTRALIAN SENATE - Select Committee on Information Technologies Labor Senators Minority Report Report on the Broadcast Services Amendment (Online Services) Bill 1999 Section 1 Executive Summary Section 1 Labor Senators support the general principle of sensible, workable and feasible regulation of material found on the Internet which by existing community standards is unsuitable for minors, prohibited or otherwise illegal. Labor Senators support the notion of applying suitable measures to limit the access children have to such materials. Such an approach must be undertaken in a thoughtful and appropriate manner, with due regard to the unique characteristics of the Internet as an information and communications medium, and a principle of minimum adverse impact on Australia's Internet users and the emerging Internet and e-commerce industry. Labor Senators are disappointed at the duplicitous and disruptive manner in which the Government has formulated and introduced this Bill, despite growing objections from Internet users, industry groups, and information technologists. The Government has cynically sought to create the impression that its generally announced measures would ``solve the problem'' of unacceptable content, when the reality is that the vast majority of such material is hosted offshore, in jurisdictions that this Bill can never reach. This Bill does little to ``solve the problem'' in that context, and the Government has shown great duplicity in failing to recognise the ease with which its proposals can be by-passed. Initial industry reaction to the legislation has been hostile. Major criticisms have included the following : that the proposals in respect of offshore content regulation are unworkable; that the imposition of mandatory Internet Service Provider filter requirements are especially unworkable; that the proposals would place an onerous economic burden on Internet Service Providers; that the proposals would reduce or destroy Australia's attractiveness as an Internet/e-commerce jurisdiction. Labor Senators firmly believe that the sensible approach is to empower end-users - parents, guardians and teachers of young Internet users - by way of information, education and access to effective and culturally appropriate Australian end-user filters devices. Labor Senators are particularly critical of the following aspects of the Government's approach: The indecent haste with which the Government has approached this issue, and the blatant disregard this shows for the views of the community and the emerging Internet industry. The Government has deliberately sought to create the impression that its announced measure would ``solve the problem'' of unacceptable content, when the reality is (backed by CSIRO advice and industry analysis) it is not feasible to regulate such content as over 90% of Internet content is hosted off shore. The short 24 hour notice timeframe, where ISP's would be required to ``take-down'' or block access to material under direction from the Australian Broadcasting Authority; The inadequacy of the notification requirements of the Australian Broadcasting Authority in respect of notifying ISP's of a breach of the proposed Act; Overly harsh penalties of approximately $27,500 per day for ISP's, (many of which are very small businesses) failing to effect a direction of the Australian Broadcasting Authority; The legislation does not expressly specify what ``all reasonable steps'' are required to be taken in respect of offshore content. The failure of the Bill to expressly limit to ``technically feasible, commercially viable and cost effective'', ``all reasonable steps'' required to be taken by ISP's in respect of access to offshore material; The lack of a commitment to the fundamental goal of the empowerment and education of Internet end-users; Labor Senators note serious concerns relating to privacy implications for internet users raised in submissions and evidence to the Inquiry. These concerns are not addressed in the Bill. Labor Senators make the following comments and recommendations in respect of the proposed legislation: Labor Senators: Agree in principle with the notion of Internet content regulation, but only that which is technically feasible and not so onerous as to reduce the attractiveness of Australia as an Internet industry / e-commerce jurisdiction; Note for the moment the Government's application of the narrowcasting classification regime for the purpose of the current proposed Internet content legislation, knowing that may well require revisiting in the future as technology and Internet use develops; Support as the only ultimate effective realistic content regulation solution the education and empowerment of end-users particularly by way of end use filter devices; Support an industry based and industry agreed code of practice as a regulatory vehicle in conjunction with the legislation; Support the notion of pursuing international activity and international agreement to address the question of Internet content; Support the development of appropriate consumer protection standards for filtering devices; Support a consumers' education and awareness campaign (including privacy implications) for the use and application of filtering devices. Recommend that the 24 hour ``take down'' period be extended to 48 hours, and apply only after a process of real and effective notification of a breach; Recommend that the proposed penalty regime be reduced; Recommend that ``all reasonable steps'' be expressly defined in the legislation to include end user empowerment, information provision, and advice on culturally appropriate end user filter devices, and that such reasonable steps be generally technically feasible, commercially viable and cost effective; Recommend that the ABA take into account the public interest in not requiring steps which would unreasonably reduce national Internet capacity; Recommend that the ABA take into account the public interest in ensuring that Australia remains an attractive Internet / e-commerce investment jurisdiction, by not requiring measures which would unreasonably degrade Internet capacity or utility; Labor Senators also recommend that after an appropriate period of the operation of the legislation, a review of the legislation occur, with the legislation itself the subject of a three year sunset clause. Section 2 Background to the Broadcasting Services (Online Services) Amendment Bill 1999 This Bill has been presented to Parliament as part of a response by the Government to the increasing use of the Internet as a medium for mass communications in Australia. The Bill proposes to amend the Broadcasting Services Act 1992 with regard to the regulation of material available on the Internet and through prescribed online services. Primarily, the effect of the Bill would be to give the Commonwealth responsibility for regulating the activities of Internet Services Providers (ISP's) and Internet Content Hosts (ICH's) in so far as they relate to content material that currently has restricted or prohibited status in Australia. The Bill establishes a regulatory mechanism where the Australian Broadcasting Authority is able to take action to require Internet Services Providers to take down, block or otherwise control access by various means to content according to standards defined by the National Classification Board, in particular those applying to R, X and RC rated material. For R rated material hosted in Australia, the Bill would require ISP's to ensure that restricted or otherwise controlled access to the material by minors was in effect, and in the case of X or RC rated material, ISP's would be required to ``take-down'' or otherwise remove the material within 24 hours of notification, or be subject to financial penalty. In relation to material hosted offshore, the Bill ignores R rated material, but would require ISP's to ``take all reasonable steps'' to block access to X or RC rated material by their subscribers, or be subject to financial penalty. The Bill further proposes a community advisory body to monitor material, operate a ``hotline'' for public notification of material discovered online by Internet users, and to advise the public about content control mechanisms such as filtering software. The Bill would enact legislation that would supersede any existing State legislation dealing with similar issues where inconsistencies existed, but has been designed to operate in conjunction with existing State laws. Section 3 Summary of major issues The following components of the Bill raised during the submission and public hearing process of the Senate's Information Technology Select Committee have been identified by Labor Senators as fundamental in terms of constructing a methodology for addressing the issue of Internet content: The Internet and its relationship to analogous media The Internet is a rapidly expanding medium. Statistics, both in Australia and overseas, demonstrate a staggering rate of acceleration in the growth of the Internet , particularly in terms of content and use of the World Wide Web, and e-mail applications. The Internet is a most valuable tool, for researchers and educators, those engaged in commerce, community organisations and the general population, in particular as a tool for communication, promotion and education. ``Online services have grown rapidly in recent years. In 1996 40 million people were connected to the Internet. By the end of 1997, the figure was 100 million.'' ``The number of households with access to the Internet is a significant proportion of the population (18% - ABS) and is growing rapidly'' National Office of the Information Economy - written submission to Select Committee, 28th April 1999 There have been doubts raised by industry and consumer representatives about applying narrowcasting regulatory standards to the Internet. Labor Senators believe the Government has not given sufficient attention to the issue of technological change, despite the technological rhetoric with which this Bill has been introduced. Similar views are held by many technologists and users of the Internet. ``More consideration should be given in the Bill to the unique nature of the Internet.'' IBM Australia - submission to Select Committee, 30th April 1999 By its very nature, the Internet can be said to be both similar to and yet divergent from other forms of mass media technology, such as print, radio, broadcast or narrow cast television, photography, cinematography and basic telephony. ``The Internet consists of a whole range of communications options, from one on one communications - which are similar to the telephone - to subscription services, which are similar to the post, and community services and a broad range of other applications'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 ``The Internet has features in common with existing forms of one to one, one to many, and many to many communications media. Australian Information Industry Association - written submission to Select Committee, 3rd May 1999 Labor Senators believe the process of technological change provides an opportunity in the future for Governments to examine regulation in the new world of convergent media, rather than simply applying an existing regime to a rapidly changing and evolving medium, and doing so in a manner that may cause more harm than good to future use of the medium. ``As the Internet evolves, it is likely to deliver more complex and more convergent communications models that we have not identified yet...therefore it is going to be difficult to legislate around these.'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 Regulation in place for any one of those media may well have unintended adverse consequences if extended to the Internet.'' Australian Information Industry Association - written submission to Select Committee, 3rd May 1999 The difficulties inherent to treating the Internet as analogous to existing forms of mass media are made most apparent when regulation is attempted, as the Internet was specifically designed as a globally distributed network of computers, capable of withstanding attempts to degrade its structure or capacity. Simply treating a structure of this complexity and trans-jurisdictional nature in a similar way to domestic media is likely to fail, simply because it ignores the fundamental technological differences in the various media. ``The global and flexible nature of networks comprising the Internet means that blocking sites can be circumvented, and it is difficult to regulate online activity in the same manner as other media such as broadcast or film.'' IBM Australia - submission to Select Committee, 30th April 1999 Indeed it seems possible that any technological mechanism for regulating content may be overcome by the rapid emergence of tunnelling or encrypting software, a point amply made by the CSIRO in two recent reports, and by other witnesses to the Select Committee. ``Highly prescriptive and technology specific regulation of the Internet is not appropriate to, or effective in, an online environment where technology and usage change rapidly.'' IBM Australia - submission to Select Committee, 30th April 1999 ``The technologies associated with the Internet continue to change rapidly - far too rapidly for any legislation to keep up with and remain effective.'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 It must also be noted that many analysts believe that it is simply not technically feasible to completely block undesirable material, regardless of the degree of technical complexity of the filtering device. ``It is technically impossible to totally block out pornography'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 ``It is difficult, if not impossible, to monitor and block information that is posted at source'' Dr Philllip McCrea, CSIRO - evidence given to Select Committee, 3rd May 1999 ``A regulatory framework that requires Internet service providers to regulate online content will be ineffective.'' and: ``The proposed method of filtering online content by Internet service providers is not technically feasible.'' VICNET - written submission to Select Committee, 3rd May 1999 ``The technical difficulties...will make a reliance upon technical blocking at the service provider level inappropriate and ultimately unsuccessful'' Australian Information Industry Association - submission to Select Committee, 3rd May 1999 The potential social and economic costs of regulation The potential for technological regulation to damage the Internet's utility for users, and its role in facilitating emerging e-commerce opportunities for Australian businesses, is also apparent, a point made by many of the witnesses who appeared before the Select Committee. ``If you wanted to hurt the Internet, and you wanted to hurt Internet electronic commerce, this would be one of the best ways to start'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 ``By specifying a particular IP source address...you could take out an entire ISP, for instance, or you could create a big hole in the Internet inadvertently. We make the comment that this could damage the fledgling information economy infrastructure on which this country's future depends'' Dr Philllip McCrea, CSIRO - evidence given to Select Committee, 3rd May 1999 The accelerating rate of development of new market opportunities offered by electronic commerce makes it essential to gauge the potential impact of this Bill. Labor Senators believe that the Bill in its current form could adversely affect the development of electronic commerce in Australia. ``Since the nascent Internet E-commerce market could play a very important place in the future economy of Australia, even the slightest obstacle to Australia's participation in the global Internet e-commerce markets at this critical point in time should be avoided at all costs.'' ``Trying to implement solutions that are not even going to be effective, that are going to have a detrimental impact on the use of technology, is going to cause more harm than good.'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 Australia has developed a very competitive Internet industry, with over 600 Internet Service Providers (ISP's) offering subscription services. This has resulted in a high rate of use of the technology, in homes, schools, universities and workplaces in metropolitan, rural and regional areas. Labor Senators believe that the high rate of take-up of this technology is precisely the catalyst for developing a self-sustaining domestic e-commerce environment. Any regulatory approach must therefore be gauged against any possible negative economic outcomes. ``Australia has developed a potentially sustainable source of competitive advantage in the Internet and Internet related markets precisely because of the lack of Government intervention and government regulation in this arena.'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 Of particular concern is the fact that many of these ISP's operate as small or medium sized enterprises. It appears that the provisions of this Bill will impact disproportionately upon the smaller ISP's, particularly those in regional and rural areas, as all operators would be viewed to have equal obligations under this proposal. Several industry analysts have made this point during the Select Committee process. ``The impact on smaller ISP's will probably be high because most of them cannot really afford to engage in processes of continuous communication and updates of router tables and other activities required to block out software.''; ``A lot of them would obviously rethink staying in business and providing the competitive services they are providing.'' and; ``Overall, additional regulation for Internet service providers...would... have a worse impact on smaller players'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 ``This will be especially difficult for small to medium ISP's.'' and; ``The effects on employment and opportunity in regional areas and amongst small business will be particularly devastating.'' South Australian Internet Association - submission to Senate Select Committee on Information Technology, April 1999 ``Higher costs to end users are inevitable, along with congested bandwidth and loss of employment opportunities in small business.'' Western Australian Internet Industry Association - submission to Select Committee, 28th April 1999 ``The regulatory framework will impose significant administrative and financial burden upon Internet service providers'' VICNET - written submission to Select Committee, 28th April 1999 Given that a large proportion of the Internet industry are SME's, the financial penalties that apply under the proposed regime could be regarded as excessive, and the timeframe for action after the delivery of a Take-down Notice by the ABA as too short. This issue highlights the simple fact that an effective, workable solution is more likely in consultation with industry, in line with the general principle of industry self-regulation. It is apparent that industry is dissatisfied with the lack of consultation from the Government. Common observations have been that the Government has ignored the views of industry, or has set unrealistic timeframes for consultation on the detail of the Bill. ``The reality is, we were not consulted about the Bill until it was tabled.'' Mr Andrew Freeman, Australian Computer Society - submission to Select Committee, 28th April 1999 ``...all previous indications from Senator Alston and the Attorney General did not in any way indicate that there was going to be a proposal for us to set up border filtering for Internet in Australia. Certainly, there was no consultation about that.'' Michael Ward, Internet Industry Association - evidence given to Select Committee 27th April 1999. Community education & awareness The elements of the Bill regarding public education and parental guidance, as the primary means of controlling unabated access to Internet content for minors, gain strong support from both industry and community interests. The strongest emphasis must be placed on empowering parents to feel confident when dealing with the Net and making informed choices in relation to their child's access to the net. Labor Senators note that previous programs funded by the Federal Government to conduct Internet education programs have had their funding cut, a clear indication of the lack of priority which the Government affords this issue. Senator LUNDY - ``What subsequent funding have you been able to get from the Federal Government ?.'' ``For that particular project, nothing as such'', and; ``Unfortunately, at a Government level, we have not been very successful to date''. Ms Toni Jupe - Young Media Australia - evidence presented to the Select Committee, 3rd May 1999 While the Committee hearings have identified that supervision of minors by technologically informed parents or guardians is of primary importance when limiting the access of minors to unsuitable content, the level and extent of funding which has been allocated to this function by the Government is far from adequate. ``That would be grossly inadequate, given the resources necessary to deal with community based issues....'' Prof Stephen Frith - Young Media Australia - evidence presented to the Select Committee, 3rd May 1999 Possible degradation of the Internet for end-users Numerous witnesses who appeared before the Select Committee expressed the view that attempting to impose technical regulation would degrade the performance of the Internet, as requests for information would have to be channelled through filtering devices. This may deter users from using the Internet as a tool for research or e-commerce. ``Without any blocking, a request going through a proxy server out to the Internet would take three milliseconds. With the filter turned on, an average request took between 80 and 100 milliseconds; so it was about 30 times slower'' Dr Philllip McCrea, CSIRO - evidence given to Select Committee, 3rd May 1999 ``Proxy servers are often run on standard, commercially available computers and operating systems. These general systems...are slower than more specialised systems, such as routers and cache engines.'' CSIRO Report April 1999 - part of NOIE submission to Select Committee, 28th April 1999 It is also likely that any additional technical or administrative costs incurred by providers through adherence to this Bill will be passed onto consumers, further slowing the rate of technological take-up. ``The cost of providing access under the proposed regime will...increase consumer access prices by 75% - 100%'' South Australian Internet Association - submission to Senate Select Committee, April 1999 ``One of the problems with blocking Internet content is that the filters are easily bypassed unless severe, and probably commercially unacceptable, restrictions are placed on the services offered.'' CSIRO Report April 1999 - part of NOIE submission to Select Committee 3rd May 1999 Clearly any regulatory regime must place a great deal of emphasis on empowering end-users. Labor Senators believe that end-user filtering and parental supervision are the most effective methods to control access to material unsuitable for minors. This is also the view of many of the witnesses who appeared before the Select Committee. ``AIIA...supports the emphasis upon codes which: Will concentrate on educating parents about how to supervise and control children's access to the Net; Will educate about filtering technologies and their use, and; Will encourage the commercial development of filtered Internet carriage services'' Australian Information Industries Association - evidence given to Select Committee, 3rd May 1999 ``Libraries are very aware of children's use of the Internet, and that it should be guided use.'' Ms Jennefer Nicholson, ALIA - evidence given to Select Committee, 3rd May 1999 Considerable evidence exists to suggest that end-user filtering is in fact the most effective way to control access to offensive or otherwise undesirable material, while at the same time encouraging users to think about their own responsibilities in terms of the Internet. It has been observed that filtering technology functions more effectively the closer it is operated to the end-user of the information technology. ``Our conclusion was that filtering is finer, the closer it is to the user.'' Dr Philllip McCrea, CSIRO - evidence given to Select Committee, 3rd May 1999 Labor Senators support the development of appropriate consumer protection standards for filtering devices. These are a necessary measure in order to ensure consumers are aware of what can occur through filters, including filter providers advertently or inadvertently discriminating towards content that may not be wanted from either a commercial, political or ethical perspective of the filter provider. Current filtering techniques are open to ``collateral damage', the inadvertent blocking of appropriate content, such as breast cancer information. ``ACLGR believes that the application of these proposals will result in entrenched inappropriate blocking and deletion of information of interest and assistance to the lesbian and gay community. We are concerned about blocking of access to information that is health and welfare related.'' Australian Council for Lesbian and Gay Rights - submission to Select Committee, April 1999 One possibility worth examining may be that information and advice concerning filtering tools appropriate to Australian cultural values be sent to all new subscribers by ISP's as part of the ``reasonable steps'' required by the Bill, or that such tools be made available to subscribers by their ISP's where it is possible to do so. There appears to be support for such a notion within the broader community. ``[G]ive tools to individuals and families, certainly to schools and even libraries, to enable them to make proper choices'' Ms Mara Bun, Australian Consumers Association - evidence given to Select Committee, 3rd May 1999 ``Filters at the end-user side...do have the potential to empower people'' Ms Mara Bun, Australian Consumers Association - evidence given to Select Committee, 3rd May 1999 ``Parents, teachers and other responsible adults should be encouraged to teach children about responsible use of the Internet'' VICNET - written submission to Select Committee, 28th April 1999 ``Parental guidance...will achieve real outcomes, at considerably less cost to industry and consumers.'' Western Australian Internet Industry Association - submission to Select Committee, 28th April 1999 It would be a valid thing for ISP's to make available filtering software - or information about filtering software '' Mr Charles Britton, Australian Consumers Association - evidence given to Select Committee, 3rd May 1999 Further, Labor Senators support the notion that industry Codes of Practice include references to specific filtered services, offered on an ``opt-in'' basis for users concerned about access to unacceptable material on the Internet. Clearly this is more effective than attempts to construct ``banned lists'' of material from a rapidly expanding list of sources. This approach is similar to observations made by the CSIRO in a recent report to the National Office for the Information Economy. ``Creating and maintaining banned lists with millions of entries is not feasible, especially as sites may be created faster than they can be checked and banned.'' ``Protecting children from ``adult'' content can be achieved by providing specialised ``safe'' Internet access services. These services would thoroughly filter Internet requests, but the overall costs would be limited by the size of the customer base.'' CSIRO Report April 1999 - part of NOIE submission to Select Committee, 28th April 1999 ``One approach to ``safe'' Internet access for children is for the ISP's to offer specialised and separate ``family'' Internet access and products.'' CSIRO Report April 1999 - part of NOIE submission to Select Committee, 28th April 1999 Existing regulatory practices Several submissions to the Select Committee made the point that suitable practices for controlling access to and traffic in illegal or offensive material already exist. State based industry Codes of Practice (such as that operated in Western Australia), Acceptable Use Agreements, and a range of end-user technical applications are being implemented by a range of ISP's and access providers throughout Australia, and appear to be working successfully, with minimal disruption to the Internet as an information and communications medium. Labor Senators believe that the Bill may threaten these practices. ``For Western Australia, the Bill replaces a system that is working well with a system that will deliver few positive results.'' Western Australian Internet Industry Association - submission to Select Committee, 28th April 1999 ``Libraries incorporate Internet use principles and guidelines into overall policies on access to library resources, they consult with communities...they require acceptable use agreements from users, they require permission from a parent or guardian for use by a child, they educate users on how to use the Internet effectively, and they evaluate resources and provide advice on these for users'' Ms Jennefer Nicholson, ALIA - evidence given to Select Committee, 3rd May 1999 ``The SAIA has had a code of conduct in operation amongst South Australian ISP's since 1996.'' South Australian Internet Association - submission to Select Committee on Information Technology, April 1999 Several Internet Service Providers offer ``opt-in'' filtered services to subscribers, which are already being utilised by those who wish to do so, particularly schools and other public access providers. ``Censorship by governments and the setting up of new standards committees is even more unnecessary given the fact that we already have commercial services and software that would permit parents to regulate the online activities of their children'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 ``AOL has created...easy to use features to help parents make sure their children have a fun, enriching, and age-appropriate experience online, while being protected from illegal and harmful content.'', and; ``82% of AOL members with families use parental controls.'' AOL Australia - evidence given to Select Committee, 3rd May 1999 The efficiency of such existing practices is reflected in the fact that this issue is not one which appears to be a major problem among either existing users of the Internet or those who provide public access to the medium, such as libraries and schools. ``It has not been an issue within libraries.'', and; ``We are not aware of that being an issue within libraries'' Senator MARK BISHOP ``You are not aware of that being an issue within libraries ?'' ``Of there being problems with children accessing illegal material or inappropriate material, no'' Ms Jennefer Nicholson, ALIA - evidence given to Select Committee, 3rd May 1999 ``Out of the entire list of 12 or so concerns that we asked about 25,000 Internet users to select from in the last survey that we did in January or February, it is...the last concern they have overall'' Pty Ltd - evidence given to Select Committee, 3rd May 1999 Definition of ``all reasonable steps'' and incorporation of the terms ``technically feasible, commercially viable and cost effective'' The Bill has a fundamental deficiency in that it fails to clearly define the ``all reasonable steps'' that must be undertaken by ISP's to prevent access to material hosted offshore. Evidence has shown that technologies available to filter can operate at three different levels which can be summarised as Backbone Service Provider (international gateways), Internet Service Provider (local gateways), or at end user level. Technologies such as secure tunnels can easily circumvent these attempts to block Internet content and will simply lead to the generation of impediments on the growth of our information economy. 100% effective filtering at ISP and BSP level is not technically feasible. Labor Senators do not support mandating of ISP filter devices While the notion that an Industry Code of Practice will be the primary vehicle to address these issues is sound, the lack of definition of ``all reasonable steps'' in the event that a Code or Codes are not ratified under the proposed regime gives no certainty to the individuals and organisations who would be deemed responsible to take such actions as may be determined in the event of a notice being made. The Bill further fails to expressly define ``technically feasible, commercially viable and cost effective'', the criteria by which application of the ``reasonable steps'' required to be taken by ISP's in respect of access to offshore material are to be implemented. In particular, the Bill fails to incorporate the terms ``technically feasible, commercially viable and cost effective'', despite the fact that they are raised as criteria for the implementation of ``reasonable steps'' in the Explanatory memorandum accompanying the Bill. The Bill should be amended such that ``all reasonable steps'' be expressly defined in the legislation to include end user empowerment, information provision, and advice on culturally appropriate end user filter devices, and that such reasonable steps be generally technically feasible, commercially viable and cost effective; Proposed new Schedule 5 of Broadcasting Services Act 1992 Labor Senators have great concern over the proposed Clause 3 of Schedule 5 of the Broadcasting Services Act. The clause would permit the ABA to declare that a ``specified access-control system is a restricted access system in relation to Internet content''. Subclause 3(3) states that a copy of any such instrument must be tabled before each House of the Parliament within a specified timeframe after drafting, yet the Bill does not specify that the instruments are disallowable instruments, which raises questions about whether the Bill sufficiently exercises the ABA power to parliamentary scrutiny. ``The Committee draws Senator's attention to the provision, as it may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the committee's terms of reference.'' Senate Standing Committee for the Scrutiny of Bills - Alert Digest #7 of 1999, April 1999 International issues Several witnesses made the point that enacting this legislation will isolate Australia as one of the few jurisdictions to take the approach of blocking access as an attempt to ``solve the problem'' of regulating material considered inappropriate by community standards. Labor Senators note inconsistencies within the Bill relating to the treatment of restricted access material when onshore or offshore. For example, the bizarre distinction between onshore and offshore material with regard to R rated material seems highly hypocritical, given that the Bill determines that while onshore R rated content must have access limited through implementation of an age-verification device, no effort will be extended to regulating access to R rated material hosted offshore. ``The Bill would give foreign pornography a commercial advantage by restricting sites rated ``R'' in Australia without any controls over similar overseas sites.'' Western Australian Internet Industry Association - submission to Select Committee, 28th April 1999 ``The Bill does not seek to harmonise Australian law with regulatory regimes overseas, instead it may impose greater obligations on local industry participants.'' IBM Australia - submission to Select Committee, 30th April 1999 One of the most significant inconsistencies in the position adopted by the Government has been their commitment to international fora on all matters relating to electronic commerce, and yet in evidence to the committee, the National Office of the Information Economy stated that it had engaged in no consultation . Senator LUNDY - ``Have you endeavoured to actively consult with International forums on the Bill ?'' ``No...'' Ms Holthuyzen - National Office of the Information Economy - evidence presented to the Select Committee, 3rd May 1999 The condensed time frame for the consideration of this Bill has meant that due consideration has not been given to the international impact of this Bill. This is despite the National Office of the Information Economy having identified the `international arena' as a critically important forum for the future development of standards. ``NOIE's core activities include maximising the benefits of electronic commerce, integrating online services into government service delivery, promoting full community participation in the information economy, contributing to and influencing international fora, and establishing a legal a regulatory framework for online services in Australia.' Ms Holthuyzen - National Office of the Information Economy - evidence presented to the Select Committee, 3rd May 1999 However, by virtue of the mere introduction of this Bill, evidence indicates that Australia's reputation may already be `damaged' in this regard. Australia is at a point where many traditionally structured companies are just starting to take their first tentative steps into electronic commerce - in many cases after persistent pressure from the Government pushing a `go global or perish' line. Now the Government is actively undermining their own campaign with a Bill that has even advocates of government market intervention concerned. The fact that the Government has been prepared to `go it alone' with internet regulation flies in the face of the efforts of every advisory body on the information economy since the Coalition was first elected. The Broadcasting Services Amendment (Online Services) Bill 1999, proposes to effect a regulatory framework for the Internet unlike that of any other OECD nation. This has industry alarm bells ringing within Australia and internationally. ``Content exports are from Australia are also likely to be impacted by this legislation - forcing creators and distributors underground and or overseas.'' Ramin Marzbani - www.consult.com - evidence presented to the Select Committee, The Ministerial Forum for Electronic Commerce, held in Ottawa in October 1998 cited electronic commerce as the facilitator for economic growth in the foreseeable future. It is the means by which the global economy is enabled and as such has been recognised inherently by governments that seek to position their respective national economies in the best possible way to participate in the globalised economy. As far a rhetorical commitment goes, the Federal Government is no different, engaging in an `agreement' with the US in late last year with respect to e-commerce. Other key influences on the pace of growth of electronic commerce include the perception of the relative `suitability' of Australia as a hub for e-commerce operations. While it is difficult to quantify `international reputation' there is no doubt that the Government has sought to enhance it. ``...the Government should realise that the tremendous potential of the Internet is best available to the nations that do not unduly fetter the development of international standards by imposing local censorship'' Western Australian Internet Association - Submission presented to the Select Committee, Section 4 Conclusions and Recommendations In summary, Labor Senators support the general principle of a sensible and workable approach to controlling access to material found on the Internet which, by existing community standards is unsuitable for minors, prohibited or otherwise illegal. Labor Senators are disappointed at the duplicitous and disruptive manner in which the Government has formulated and introduced this Bill, despite growing objections from Internet users, industry groups and information technologists. Labor Senators are particularly critical of the following aspects of the Government's approach: The indecent haste with which the Government has approached this issue, and the blatant disregard this shows for the views of the community and the emerging Internet industry. The Government has deliberately sought to create the impression that its announced measure would ``solve the problem'' of unacceptable content, when the reality is (backed by CSIRO advice and industry analysis) it is not feasible to regulate such content as over 90% of Internet content is hosted off shore. The short 24 hour notice timeframe, where ISP's would be required to ``take-down'' or block access to material under direction from the Australian Broadcasting Authority; The inadequacy of the notification requirements of the Australian Broadcasting Authority in respect of notifying ISP's of a breach of the proposed Act; Overly harsh penalties of approximately $27,500 per day for ISP's, (many of which are very small businesses) failing to effect a direction of the Australian Broadcasting Authority; The legislation does not expressly specify what ``all reasonable steps'' are required to be taken in respect of offshore content. The failure of the Bill to expressly limit to ``technically feasible, commercially viable and cost effective'', ``all reasonable steps'' required to be taken by ISP's in respect of access to offshore material; The lack of a commitment to the fundamental goal of the empowerment and education of Internet end-users; Labor Senators note serious concerns relating to privacy implications for internet users raised in submissions and evidence to the Inquiry. These concerns are not addressed in the Bill. Labor Senators make the following comments and recommendations in respect of the proposed legislation: Labor Senators: Agree in principle with the notion of Internet content regulation, but only that which is technically feasible and not so onerous as to reduce the attractiveness of Australia as an Internet industry / e-commerce jurisdiction; Note for the moment the Government's application of the narrowcasting classification regime for the purpose of the current proposed Internet content legislation, knowing that may well require revisiting in the future as technology and Internet use develops; Support as the only ultimate effective realistic content regulation solution the education and empowerment of end-users particularly by way of end use filter devices; Support an industry based and industry agreed code of practice as a regulatory vehicle in conjunction with the legislation; Support the notion of pursuing international activity and international agreement to address the question of Internet content; Support the development of appropriate consumer protection standards for filtering devices; Support a consumers' education and awareness campaign (including privacy implications) for the use and application of filtering devices. Recommend that the 24 hour ``take down'' period be extended to 48 hours, and apply only after a process of real and effective notification of a breach; Recommend that the proposed penalty regime be reduced; Recommend that ``all reasonable steps'' be expressly defined in the legislation to include end user empowerment, information provision, and advice on culturally appropriate end user filter devices, and that such reasonable steps be generally technically feasible, commercially viable and cost effective; Recommend that the ABA take into account the public interest in not requiring steps which would unreasonably reduce national Internet capacity; Recommend that the ABA take into account the public interest in ensuring that Australia remains an attractive Internet / e-commerce investment jurisdiction, by not requiring measures which would unreasonably degrade Internet capacity or utility; Labor Senators also recommend that after an appropriate period of the operation of the legislation, a review of the legislation occur, with the legislation itself the subject of a three year sunset clause.
Senate Committee 1999 << Federal Net Censorship << Internet Censorship/Free Speech << Danny Yee