chapter 3 discussion Introduction In this Chapter the Committee will summarise and discuss the major threads of the evidence it received in the course of its inquiry. The vast majority of witnesses from the industry and the community are agreed in principle that material which the Parliament has restricted in the other, more traditional, media because it is at least offensive to Australia's community standards of morality, decency and propriety, should also not be available online. However, Australian law can only cover content providers and ISPs which are operating within Australia's jurisdiction. Since the vast bulk of material emanates from offshore, outside Australia's jurisdiction, this legislation provides the only opportunity to deal with offensive material coming from overseas. Among dissenters from the above view were a group of Internet users who expressed total opposition to any form of constraint on the medium's currently unregulated nature. Much of their protests are in fact, based on a complete misunderstanding of the intentions of the Bill, with the development of a popular mythology that the Bill seeks to ban all "adult" content. One submission, from a person with membership of several peak Internet bodies, made frequent use of the expression [expletive deleted] because, it was argued, the inclusion of the expletive would be illegal under the Bill if it was to be posted online without an adult verification mechanism. A cursory reading of the relevant Office of Film and Literature Classification guidelines would have indicated that such expletives are permitted to be used in M-rated material at which rating they are not subject to any age-based access restriction. While there may otherwise be a high level of general agreement on the need to bring uniformity in media content, views diverge on whether additional legislation is necessary to specifically address the online issue. Even where it is accepted that legislation is desirable in principle, there is debate about the material to which it should apply or, alternatively, that the legislation is pointless, even potentially harmful to Australia's interests, because it is neither technically nor commercially feasible to implement. It is clear, however, that the community expects, indeed supports, compulsory minimum standards. To regulate or not Witnesses made reference to a range of existing statutory provisions to argue that the Bill was unnecessary. Reference was made to provisions of the Crimes Act 1914, the Classification (Publications, Films and Computer Games) Act 1995 and the Customs Act 1901. The general argument was that child pornography, for example, is illegal in all transmission media. Because Internet sourced material, once stored or downloaded, is in an illegal form, no further provisions are therefore necessary. There was also a suggestion that the Bill may be unconstitutional, including the view that it amounts to an acquisition of property without just terms. In relation to the latter matter, Mr Donald Markus, General Counsel from the Australian Government Solicitor, assured the Committee that: So in certain cases, depending on the business that people have, they may incur certain costs in complying with [the Bill's] obligations or they may lose revenue from the kind of business that they were operating but that, of itself, does not amount to an acquisition of property for the purpose of the Constitution, in my view. The argument about the Crimes Act is that section 85ZE already makes it an offence for a person to knowingly or recklessly use a carriage service (essentially a telephone service) to menace or harass another person or to use such a service in a manner which would be regarded by reasonable persons as being offensive in the circumstances. The Bill clarifies the application of the Crimes Act to exclude Internet content which is of an ephemeral nature to the extent that they are not stored. This exclusion likens person-to-person online contact to a private telephone call. The existing provisions of the Crimes Act will still apply to offensive material so that, whether by telephonic or online source, a menaced or harassed victim has a legal basis to make a complaint. In either case the carrier or ISP is exempt from criminal liability. Witnesses have argued that, if the Crimes Act catches the major category of offensive material, further legislation is unnecessary. They pointed to several successful prosecutions where Australians had been charged for accessing and retaining quantities of child pornography from online sources. The representatives of the National Office for the Information Economy (NOIE) told the Committee that the vagueness of the terms 'knowingly' and 'recklessly' in the Crimes Act raises questions about what is actually covered. Interpretation of these provisions was not helped by the fact that all online-related prosecutions under section 85ZE had been uncontested. It was also stressed to the Committee that the Crimes Act is not a classification scheme, which makes it unsuitable as the basis for the Government's intended regulatory framework. This legislation will enable Commonwealth law to intercept such material in transit. The Bill will also clarify the concurrent operation of laws in the States and Territories, so that criminal penalties applying under state and territory legislation dealing with content creators or content receivers will be dealt with from within their respective jurisdictions. The Bill's Second Reading Speech makes it clear that the Classification (Publications, Films and Computer Games) Act may not encompass all forms of Internet content, so a separate classification procedure is required. While not stated, the Committee's expectation is that such online material as racial vilification material, bomb recipes and the like will be encompassed within the scheme's terminology of 'prohibited content' and 'potentially prohibited content'. According to evidence from NOIE, the final details of this aspect of the scheme are dependent on the finalisation of the States and Territories uniform complementary legislation. Finally, the Customs Act, and Regulation 4A of the Customs (Prohibited Imports) Regulations in particular, is directed at the prohibition of the importation of objectionable goods. This is seen by some witnesses as already providing the appropriate statutory response to the international dimension of online services. While the Committee did not receive authoritative advice in this respect, there would obviously be some difficulties with defining information transmitted internationally by telephone lines as "goods". Further, as with the Crimes Act issue, the Customs Regulations apply only to the class of goods that are prohibited, with no capacity to be used as a classification system. Analogous media While there was general agreement with the principle that material which is banned in other media should be banned online, there was argument about whether the Bill treated online material in a manner analogous to its equivalents. The Bill makes it clear that prohibited content, that will trigger action by the ABA, is based on the National Classification Board guidelines for film of either Refused Classification (RC) or X rating, and material rated R that is not protected by adult verification procedures. This regime is most closely aligned to the narrowcasting model already contained in the Broadcasting Services Act (BSA). Ms Holthuyzen, Deputy Chief Executive of NOIE, told the Committee that: I think there are three main reasons the Government has chosen to take the narrowcasting approach. Firstly, the government recognises the growing influence of online content and the greater ease of access to content at home and school particularly without some sort of supervision of children. Also, I think the access to online services is becoming less discretionary than, say, access to content and hard copy form... Also, as higher bandwidths become available and with greater technological convergence, online services will come more and more down the broadcasting route than the publications route. Ms Holthuyzen went on to add that the Government has made a judgement that, in the future, online services will progressively resemble more of a broadcasting medium than publications. NOIE General Manager, Mr Christopher Cheah, also said: The Government has basically made a judgement that at the moment, given the way the technologies are placed, the way the market is at the moment and the way that services have developed, the style of regime that is currently applying to narrowcasting would be the most appropriate for the current state of the market. It is not a direct link between the narrowcast service -we are not saying that Internet is the same as narrowcasting. Various industry witnesses took issue with the broadcasting/narrowcasting comparison, some arguing that the Internet is like a library where the user selects which book they wish to try. Those books are, of course, subject to classification and, at the more abhorrent end of the scale, may be refused classification or their access restricted to adults. The Eros Foundation, the spokesgroup for the adult industry, argued that the prohibition of X-rated material was inconsistent with national classification legislation applying in all States and Territories. They submitted that it should be restricted to adults, as proposed for R-rated material, rather than prohibited because X-rated material can be legally viewed and purchased in all jurisdictions by adults. This is not the full picture, however. The X-rating is a special video-only restricted classification, available only in the two mainland Territories. It is available in the States only by mail-order. The six State Governments represent some 97% of the population of Australia. In the Committee's opinion, it is entirely appropriate for the Commonwealth, where possible, to seek to support the States' view of the undesirability of this material within their borders. The mail system is not conducive to such a form of regulation, while online services are. The Committee strongly supports these particular provisions in the Bill. Further, with convergence, allowing X-rated material online now would, in the future, provide picture quality for online access to such material by children, a totally unacceptable proposition. The Committee notes that the Select Committee on Community Standards Relevant to the Supply of Services Utilising Telecommunications recommended in November 1995 that R-rated material also be restricted from online services. Underpinning its recommendation was the concern that, once available in the home, and in a situation of an inadequate level of adult supervision, children would have ready access to this more violent category of material. That Committee subsequently recommended in June 1997 that: The Commonwealth, States and Territories legislate to make it an offence to use a computer service to transmit, obtain possession of, demonstrate, advertise, or request the transmission of material which is or is likely to be Refused Classification (RC) or to be in a restricted category because it is likely to cause offence to a "reasonable adult" as described in the National Classification Code. The Bill does not treat R-rated material in the same manner as RC and X-rated material, only enabling the ABA to issue a final take-down notice where there is no adult verification mechanism. There is no interim take-down provision, as applies with the other two prohibited categories. When asked to comment why this different approach had been adopted for R material, NOIE's representative noted that: I think it is partly a workload issue...I guess the administrative overload was a factor which came into [the Government's decision]. This regulatory provision places on the ABA a responsibility to authorise and approve any age verification mechanisms. The Committee expects to examine this aspect in its continuing operations. Technical/commercial considerations Industry groups placed considerable emphasis in their evidence to the Committee on the adverse technical and commercial implications for their operations from having to comply with the various take-down notices. They were particularly critical of the practical effects of proposed section 37(1)(c) which provides for the issue of ABA standard access-prevention notices, which require ISPs 'to take all reasonable steps to prevent end-users from accessing [content hosted outside Australia that the ABA is satisfied is prohibited content or potential prohibited content]'. A representative example of the evidence received by the Committee in this respect was contained in the joint submission from the Australian Interactive Multimedia Industry Association (AIMIA) and the Internet Industry Association (IIA), which claimed that the clause was unworkable: There are vast numbers of pornographic websites located in the US. This legislation requires ISPs to block access to any such sites notified by the ABA. Blocking involves the use of proxy servers which are expensive to purchase, cost money and time to maintain and degrade the performance of the network... The Associations support instead the concept of ISPs offering differentiated services to their customers, based on the best available filtering technology. The Associations do not support the use of mandatory filtering technology across the entire network because filtering technology does not operate to restrict access to specific sites, and occasionally (and sometimes often) inadvertently blocks access to legitimate sites. Internet industry witnesses provided the Committee with a range of evidence about the current availability of differentiated services, the strengths and weaknesses of filtering technology, the reduction in performance standards (particularly speed of access) and the cost of compliance. Particular reference was made to a report by CSIRO to NOIE in June 1998 that concluded that content blocking implemented purely by technological means will be ineffective, and should not be mandated. From evidence given by IIA and OzEmail representative, Mr Michael Ward, the Committee was informed that the Internet industry is already offering a range of filtering software products and differentiated services, which they are choosing to offer as a normal commercial and marketing opportunity, as well as shutting down news groups and sites that might be carrying child pornography. The Committee heard from Dr Philip McCrea, one of the co-authors of the June 1998 CSIRO report. He told the Committee that the report had concluded that filtering is technically possible. When done by backbone service providers, possibly packet level filtering would be the most appropriate. When done at the ISP level, then probably filtering against "black lists" would be the most appropriate. While the report's conclusion was that filtering is best done closer to home, Dr McCrea told the Committee that: The second approach requires recognising that it is possible to provide some sort of filtering by an ISP. Our conclusion was that this is probably the most effective form of filtering. The Committee also received evidence from Mr Alan Jones, Chief Executive Officer of Clairview Internet Pty Ltd, which contradicted much of the IIA evidence about the adverse impacts of filtering on ISP performance and costs. Mr Jones argued that there are solutions for most if not all of the claimed adverse impacts. Mr Jones said: One issue that was brought up in the CSIRO report that I found interesting was the comments of how e-commerce could be hurt by such blocking. Whilst it is true that blocking will hurt e-commerce sites that co-host pornographic material with their sites, I think the worry of it will be almost negligible. Mr Jones added: We have pushed the envelope out a little bit further than what it was six months ago when the CSIRO report was written. Does it have failings? Yes, it does. Is it perfect? No, it is not. Is it technically feasible to do some of those things [use technology to prevent access]? I think the answer is that it is becoming more and more so, yes. Representatives of AOL Bertelsmann Online Services provided similar evidence to Mr Jones about their capacity to meet community expectations of safe online access for children and families. Managing Director, Ms Carol Veriga, told the Committee that: AOL is committed to supporting the principles that children should be protected from harmful and illegal content... It is due to this commitment that AOL has become an innovator in developing comprehensive tools such as parental controls, and we are constantly providing member education in order to give consumers the control of what they see at a household level. AOL emphasised that of its 17 million members, 53% have families and, of that group, some 82% use the parental control systems. Dr Dorothee Ritz, AOL's Business Affairs Director, stated: We think that is a very strong argument that these parental controls, if they are made easy, do work and parents can use them. In a second CSIRO report, tabled by NOIE on 3 May, one point made was that the performance of a proxy server having ample capacity would be so minimally affected by filtering that the user would be unlikely to notice. Thus, it seemed to the Committee, that the industry's concerns related to the implications of the apparently larger scale of intervention expected of it by the Bill, than by any fundamental objections to the concept of content filtering. The Committee took up such industry concerns with Government representatives. Ms Holthuyzen emphasised in her evidence to the Committee that the Bill was only one part of the Government's framework, including networking with international agencies, police agencies and regulatory agencies to try to further develop means to address the overseas content provider issue. Clearly, if by strong international cooperation and action the amount of problematic material posted online is minimised, the lesser is the need for Australian ISPs to have to try to bar it. She told the Committee: The Government...is not mandating any particular technology. It is not mandating that people must have proxy servers or anything else. It is asking the industry to come up with what the best solutions are...I think there is a range of flexible approaches in there that can be adopted by the industry... And: What the Government has tried to do in this Bill is put in place provisions which - I guess it is trying to make a balance in judgement - on the one hand, are limiting and preventing access to objectionable material but, on the other hand, obviously are not placing entirely onerous and unjustifiable costs on the industry so as to inhibit its investment. That clearly at the end of the day is a balancing exercise...That is one of the reasons why, in terms of the codes of practice which are to be developed by industry and put into place, the Government wants the industry to come up with the solutions about how some of these mechanisms are best delivered. Because technology in this area is changing rapidly all the time, it may well be that new methods and procedures come along that can be put in place and the flexibility is built in the codes to enable them to do that The Government's use of industry codes of practice as a mode of co-regulation in the online industry mirrors its approach to the other broadcasting services regulated by the BSA. Applying the model to an industry where technological development is proceeding at considerable speed, the Committee notes that there are positive benefits from maximising the capacity to frequently and rapidly update a code of practice to take account of the most current developments, compared to the rather more tortuous path of statutory amendment. Draft codes of practice have been under consideration by the IIA for some time. The IIA currently represents only some 50 to 60 of the over 600 ISPs in Australia and its representatives told the Committee that it anticipates that not all ISPs will readily join their organisation. The Committee also notes with concern that the IIA representatives designate its code of practice as 'voluntary'. It appears that much work remains to be done for the current Government reliance on industry codes of practice to be fulfilled in practice. The NOIE witnesses provided important evidence about section 37(1)(c) and the meaning of "reasonable steps". Ms Holthuyzen said: An important thing about this provision is that this is the default position in terms of access to international content. The idea is that this is a requirement that falls on the service providers if a code is not put in place by 1 January or the standard is not made by 31 March. If a code is developed and put in place, the code overrides this particular provision because the code itself in those areas would provide the steps, procedures and matters needed to be gone through which would then be endorsed by the ABA. The Bill provides that the ABA will be the judge of the reasonable steps that an ISP would have to take to prevent end-users gaining access to 'objectionable' material. The ABA will also be the regulatory body monitoring the online industry's codes of practice, in a similar role to that it has performed for the past six years with the 'traditional' broadcasting industries. ABA Chairman, Professor David Flint, told the Committee that he sees the expression 'reasonable steps' as an objective matter: We would say: what would the reasonable person do in these circumstances? It would then be for them [an ISP, for example] to say 'We have taken all reasonable steps or what we would consider to be reasonable'. We would have to say what we think is the reasonable thing to do in this industry. Some of the matters cited as likely to contribute to the ABA coming to the view that reasonable steps had been taken were: that the latest filtering technology had been applied; possibly contacting the source of the offending material and asking them to take action to avoid a breach of the law in Australia, raising international trade and protocol agreements and private contracts, negotiation, mediation and attempts at dispute resolution, where appropriate. ABA Deputy Chairman, Mr Gareth Grainger noted that: The fact is that every case would have to be considered on its own facts and its own circumstances. It is difficult to give you a blanket answer now, and we simply cannot, as to what might be reasonable steps. We would have to look at the approach we were going to take in each case. The NOIE witnesses also emphasised that the Government's intentions in this respect, as set out in Clause 4 of the Bill, are to enable the ABA to address public interest considerations in a way that does not impose unnecessary financial and administrative burdens on ICHs and ISPs. Thus the cost of compliance may be a proper matter for the ABA to take into account in relation to what actions it is reasonable to expect of an ISP, especially smaller ones. Mr Cheah told the Committee: The Government accepts that no blocking technology is going to be 100 per cent effective, and that is what the bottom line of the CSIRO report is really saying -that it is not possible to come up with a blocking technology that is going to be 100 per cent effective 100 per cent of the time. The Committee wishes to draw attention to the following statement of US Attorney-General, Janet Reno: I think you have got to balance First Amendment rights with other rights, and you've got to look at how the Internet is used. But one of the things that I have discovered ... is a kid will know that he shouldn't go into a certain neighbourhood, but he doesn't know that about the Internet. And we have got to devise ways that parents and children become more acquainted with the Internet: what the pitfalls are, what the dangers are. And parents ought to be able to have tools when they have to work, when they're not available to supervise what their child is doing, to make sure, if they want that they can pursue the situation either through a block of certain Web sites or an itinerary where the child has been that day on the Internet. The Committee concludes by noting, with approval, the following sentiments in the Government's second reading speech: It is not acceptable to make no attempt at all on the basis that it may be difficult. Nor is it acceptable that community standards applicable to conventional media do not apply to the Internet - what is illegal or controlled offline should also be illegal or controlled online. Self-regulation, even with the industry's stated best intentions, is not adequate. Without legislative pressure, there is no incentive for the industry to seek better, faster, cheaper ways of achieving the outcome apparently desired by the Australian Government on behalf of the Australian community- that its citizens are able to take control of what standards of content it wishes to accept in its media, irrespective of the means of delivery. Sanctions The Bill implements a comprehensive framework for action by the ABA when its attention is drawn by complaints to offensive material on-line and it provides for a number of sanctions to be applied. Penalties of up to $5500 for an individual and $27500 for a corporation can apply for breaches of an online service provider rule for each day the contravention continues. Perhaps not surprisingly, the industry representatives saw such sanctions as excessive. Ms Holthuyzen explained them by stating that: The first one [sanction] we would expect is that, within the codes themselves, there would probably be sanctions or incentives. Because the codes are voluntary in terms of getting compliance, you might be able to deal with that by withdrawing association privileges. The incentives of having compliance are perhaps being able to display compliance symbols so that you are an ISP that people will want to deal with more. The first level, I guess, is within the codes themselves. The second level is that the ABA can actually give warnings in relation to breaches of codes, standards or rules. In fact, thirdly, the ABA can also direct ISPs to take particular action in terms of how to comply with the code of practice, Finally, we come to the fact that, if you fail to comply with the take-down notice, the ABA can actually apply to the courts for action. Fines are imposed on a daily basis for each day there is a continuing breach. Then the court would decide on the level of penalty if you got that far through the process, but I guess we would hope that the ISPs, and ICHs would take action prior to being taken to court. The penalties able to be imposed under any piece of legislation are a demonstration of the seriousness with which the community, through the Parliament, places on an issue. For its part, the Committee believes that the penalties proposed by the Bill are necessary to impress on ISPs that it is in their commercial interests, and too risky, to leave problematic material online. Such penalties will not only encourage compliance but also provide an incentive for technical inhibitors to filtering or blocking to illegal or objectionable material to be developed. International comparisons Australia is not alone in being concerned about Internet content. While there is a growing commitment on the part of many countries to tackle concerns about Internet content by way of international cooperation, many countries have begun implementing their own regulatory measures in relation to on-line services. Australia has a history of rapid uptake of new technologies and the Internet is no exception. As such, it is not inappropriate that Australia devise a system of regulation that accords with its particular needs and which reflects the legitimate community concerns regarding the publication of illegal and offensive material online, while seeking to minimise onerous or unjustifiable burdens on industry. Australia's regulatory regime, however, has not been developed within a domestic vacuum. Australia is a participant in a range of international forums, including OECD and UNESCO committees. Such cooperation is vital in terms of understanding what measures are being developed internationally in order to inform debate and to seek to develop the most effective solutions back home in Australia. Ms Holthuyzen tod the Committee that: Everybody is struggling with these issues - about how to deal with them and how to come to terms with them and how best to protect children and deal with this sort of content. I think it is partly a learning experience together, but the government has obviously made a specific decision on how it wishes to take it forward from here. And: ...we look at what other people are doing but, in Australia itself, we look at the particular circumstances and the changes that are occurring here, the growth of the Internet and the particular community concerns that have arisen. The Government has, I guess, tried to develop a policy which addresses those concerns and takes the issues forward. In a sense, we are not relying on what other countries do. I guess we are trying to find and put in place a proposition and a proposal that the government thinks is best for Australia. Furthermore, Ms Holthuyzen noted: We are aware of a range of issues that have been occurring internationally and I guess they vary from country to country. The USA have had some attempts to put in place particular provisions to restrict on-line content. As you are probably aware, some of those were overruled by the Supreme Court on the basis that they violated the First Amendment. But I think the important issue that is interesting there is that the majority of people in those cases were not saying it was not a reasonable idea to regulate content in this area. It was really a matter of developing a proposal which actually fitted within the Constitution. We understand that the EU is also examining and trying to harmonise ways to look at illegal and harmful content. They are also looking at some of the methods of industry self-regulation, encouraging filtering software and things like that. So there are some processes within the European Union where they are attempting to examine these issues as well. Comparisons The Committee is unable to provide a comprehensive critique of international developments in this field. Naturally, the topic is a major study in its own right and, given its dynamism, it is unlikely that justice could be paid to the topic in this report. The US situation, where the Communications Decency Act was struck down by the Supreme Court, as mentioned above by Ms Holthuyzen, is naturally a cause for international concern because the US is acknowledged as a major source of problematic material. It is nonetheless understood that the US authorities, particularly the Federal Bureau of Investigation, will cooperate with the international law enforcement community where their attention is drawn to illegal material emanating from a source within the US. The ABA provided the Committee with a copy of a UNESCO report published in October 1997 entitled The Internet and some international regulatory issues relating to content. The report was a comparative study of the approach to regulation of online services of four countries, including Australia, Malaysia, Singapore and the United Kingdom. Although already dated, the report contains some useful material. Malaysia Malaysia had adopted a substantially self-regulatory approach to Internet regulation. In a number of press statements the Malaysian government had articulated that there would be no censorship of the Internet. However, the Prime Minister, Dr Mahathir was reported to have said that, `there should be some international agreement as to what can or cannot go on this free media (Internet) in response to pornographic content'. The Malaysian government opted to regulate the Internet by imposing restrictions on the Conditions of Service of the two Internet service providers, Joint Advanced Research Integrated Networking (JARING) and Malaysia Telekom Berhad (TMNet). Furthermore, the Malaysian regulatory regime was supplemented by a number of ```cyberlaws' which related to information flow and use of the internet''. For example, customers of JARING are bound by the JARING Conditions of Service. MIMOS Berhad may terminate the membership of JARING members who breach the conditions of service. Some of the conditions relate to content and access including, for example, ``members shall not use the JARING network for any activities not allowed under any law of Malaysia''. In evidence before the Committee, Mr Peter Upton, Executive Director of the Australian Information Industry Association, advised that Malaysia had totally abandoned any attempt at blocking Internet content, essentially because it was seen as a major disincentive to investment. The ABA's Mr Grainger told the Committee emphatically, however, that: ... it is true to say that whatever noises Malaysia is making about this issue, they do not intend to allow problematic content on the Internet in their country. Singapore 'The Singapore Broadcasting Authority (SBA) is guided by three philosophies: public education, industry self-regulation and community involvement.' It is the statutory duty of the SBA to ensure that nothing is included in any broadcasting service which is against public order interest or order, national harmony or which offends against good taste or decency. The Singapore model adopts a class licence scheme for Internet service providers and content providers, regulating the conduct of members of the industry and the content allowed on-line. 'The aim of the class licence scheme is to impose minimum standards through an automatic licensing framework.' Where the SBA determines that a breach of a class licence scheme has occurred, it has the option to either cancel the class licence in respect of the class licensee, or to impose a fine. Furthermore, the SBA has issued an Internet Code of Practice, pursuant to its powers under the SBA Act, which came into effect on 15 July 1996. All Internet content providers and ISPs who are licensed under the Act are automatically bound by, and required to comply with, the Internet Code of Practice. United Kingdom The United Kingdom has also adopted a self-regulatory framework within which service providers are required to operate. The foundation of the self-regulatory framework is the `R3 Safety-Net proposal' which is overseen by the Internet Watch Foundation. 'The R3 Safety-Net was adopted and endorsed by the Internet Service Providers Association (ISPA-UK), London Internet Exchange (LINX) and the Safety-Net Foundation (now the Internet Watch Foundation). The proposal was developed in discussions with industry facilitated by the UK Department of Trade and Industry, the Metropolitan Police and the Home Office.' Under the UK model of self-regulation, ISPs who choose not to comply with the regulatory regime by removing illegal material once informed of its existence, may be prosecuted under the normal processes of law. For example, ISPs may be prosecuted under the Obscene Publications Act 1959 or the Protection of Children Act 1978. In its endorsement of the R3 Safety-Net proposal, the UK Department of Trade and Industry stated: The basis for these proposals is that existing law applies on-line as it does to other media. Internet service providers have a liability in law for material which they host on their servers, and it is therefore in their best interests to ensure that illegal material is removed. Service providers who cooperate with the proposals will reduce their risk of prosecution, by demonstrating that they have done all that can reasonably be expected to comply with the law. Summary Resolution of much international concern about Internet content can only effectively be addressed by international cooperation. The Committee recognises that total uniformity is unrealistic but it is reassured that Australia is a participant in the negotiation process. It is apparent that the provisions of the Broadcasting Services Amendment (Online Services) Bill 1999 are not significantly different to a number of models currently operating internationally. What is important, is that Australia has sought to draw on the best practice components of other regulatory regimes, while adopting measures that meet the specific expectations of Australians. Community education The Government's approach to the resolution of the problem of, particularly, children gaining access to inappropriate online material, does not rely on regulation alone. There is a community consensus, clearly shared by the Government and reflected in its proposals, that community education is an important part of the framework to regulate online services. The Committee wishes to state at the outset that it views community education as an important part of the package of measures put forward by the Government but it notes that, at the end of the day, it does not represent a solution to the problem of inappropriate material being accessible online. This issue received considerable attention at the Committee's hearings, although its relevance to the Bill before the Committee is limited to the extension of the ABA's functions in proposed section 90 as follows: to advise and assist parents and responsible adults in relation to the supervision and control of children's access to Internet content. to conduct and/or coordinate community education programs about Internet content and Internet carriage services, in consultation with relevant industry and consumer groups and government agencies; Witnesses expressed general agreement that although the industry and government have roles to play in the regulation of Internet content, so too, parents and other members of the community have a responsibility. For example, Young Media Australia stated: ... we feel that we represent the broad parent community that feels that it is not really across the more technical aspects of some of these issues, yet they are being told on a daily basis that virtually all the responsibility for doing something about the protection of their children from any harmful effects of the technology is entirely their responsibility. We agree that parents ought to take a great degree of responsibility but, as with other forms of media, we also believe that there should be a triangular partnership on this matter between the Government, industry and the community, in particular the parent community, and that there ought to be very solid and firm commitment to a partnership of this kind. The key, however, to parents and other community members being able to play a valuable role in the process depends very much on the availability of information. Ms Holthuyzen told the Committee that educating parents about the options available to them on the issue of regulating Internet content was a key part of the Government's strategy. Mr Peter Coroneos, Executive Director of the Internet Industry Association (IIA), noted: I do not think anyone in this room would argue that the responsibility is to be slated straight back to industry or to government to solve. Just as we have laws for controlling motor vehicles and road safety and we have speed limits and everything else, by and large the fact that we do not have accidents on the road every day in Australia to the extent that might occur is due to the fact that drivers are taking responsibility for their own conduct. In the same way, we think there is a very strong argument that parents ought to be assisted in every possible way to take some of that responsibility back. His IIA colleague, Mr Michael Ward, told the committee that, in his opinion, it is a collective responsibility to inform the community about the filters and tools available to effectively block undesirable material from the Internet. He added that the IIA has been considering ways to provide additional information to parents and suggested that there needed to be a central repository of information that parents can access. The statistical evidence shows that children and teenagers are far more likely to access online services than adults. This is because it is still relatively new technology, use is encouraged in schools (and discouraged in many workplaces) and is available in only a minority although rapidly growing number of family homes. Because of this imbalance between adults and children it is even more critical that responsible adults have the capacity to supervise their children's use of the Internet: It is important, therefore, that parents and other carers of children are provided with access to information that can assist them to work with their children in making the online experience constructive and rewarding. Community education and awareness will assist Australians to embrace the enormous potential of online services while avoiding the potential pitfalls. The Committee notes with approval that there are a number of community education projects and programs already in operation, which include both government and non-government initiatives, and others which have been developed by the education sector. The role of the ABA The ABA has been working in the area of the regulation of Internet content since 1995. In February 1998 it convened the Children and Content Online Task Force which reported in June 1998. The ABA has developed education strategies, in particular, a web site called ``Australian Families Guide to the Internet'', launched in November 1998, and has been involved in the development of proposals for a hotline to be based in police crime stoppers units. The ABA has attended international conferences (like the UNESCO Asia-Pacific Regional Experts Meeting in Seoul) and other international forums on the regulation of Internet content and related issues. Mr Grainger told the Committee that the community education part of the strategy to regulate Internet content is crucial: Wherever you go in the world and whomever you talk to in the world who is dealing with the online issue, the issue of community education and of the education of parents, teachers and others entrusted with care of young people is absolutely fundamental to this area. In terms of the educative function entrusted to the organisation, ABA Director of Policy and Content Regulation, Ms Andree Wright, told the Committee that at this stage the ABA would like to build upon the family-friendly web-site and to develop that as the ABA's primary mechanism for speaking to the community, for both users and would-be users. The Committee notes that in addition to the funding required by the ABA to obtain classifications from the Classification Board (estimated at $1.5 million per annum) an appropriate level of funding will also be required in relation to its other new responsibilities, like community education and an advisory service to parents. Mr Grainger advised the Committee that discussions are currently underway with the Minister and the Department about the ABA's resource needs and a new policy proposal is proceeding. Community advisory body The Bill's Second Reading Speech noted that, as part of the framework to regulate online services: A community advisory body will be established to monitor material, operate a `hotline' to receive complaints about illegal material and pass this information to the ABA and police authorities, and advise the public about options such as filtering software that are available to address concerns about online content. The Committee notes the advice in the Explanatory Memorandum to the Bill that, in the short to medium term, Commonwealth funding will be required to establish the community body and to assist with its ongoing administrative costs. The establishment costs are estimated as being $0.2 million, with an ongoing annual funding of $0.5million. When questioned about the adequacy of government funding, Ms Holthuyzen told the Committee that, as part of the industry codes of practice, the industry would be encouraged to set up appropriate regimes, mechanisms and education programs to assist parents: It is not just the government spending money to provide information about this; it is the industry doing so as well. The ABA submitted to the Committee that both it and the Internet industry supported the establishment of a hotline that would enable users in Australia to report instances of illegal content on the Internet. A number of countries operate hotlines for this purpose, including Belgium, the Netherlands, the UK, Malaysia and the USA. Generally, the hotlines are linked to law enforcement agencies. One of the recommendations of the Children and Content Online Task Force was the establishment of a similar hotline in Australia. The ABA told the Committee that it knew little about the Government's announced `hotline'. A number of models are possible. Ms Wright informed the Committee that the advisory body could operate as a hotline by receiving information and passing the information to the ABA. The advisory body could also assist members of the public to formulate their complaints and provide information about available mechanisms whereby parents can select material or supervise the online services accessed by their children. Ms Wright also mentioned that the ABA had recently worked with community, government and police organisations on developing a hotline to be operated by police units. Alternatively, the advisory body could model the Internet Watch Foundation in Britain. That organisation operated via the use of telephone numbers initially but found that the most convenient and most used method of complaint making was by electronic means. The Committee understands that the exact nature and terms of reference for the advisory body are not yet settled. When asked about that body, Ms Holthuyzen told the Committee: We are still working through how that body will exactly work and obviously that needs to be established before January 2000. The idea of the body is that it will certainly have both community and industry representation on it. In regard to its main functions, obviously it will take complaints and pass them on to the ABA as relevant. It will certainly be an education body to provide information to parents about filtering arrangements or how to control access of their children to services. It will also, I think, be doing some surfing to see whether it finds any particular sites as well. Basically it is threefold. In response to an inquiry from a Committee member about the role of an education campaign to educate parents on ways to exercise control over children's access to `unsavoury' Internet content within their own home, Ms Holthuyzen said: There are two answers to that. One of the aims of this community body which is going to be established is to provide advice particularly to parents in relation to means and avenues for the to deal with their children's access to the Internet. Already on its own web site, the ABA has quite a lot information directed at parents in terms of children's access to the Internet. A key part of the strategy also is getting parents to understand and be aware of the options and possibilities available to them to be able to deal with this issue. One of the objectives of the advisory body would be to close the gap that exists between teenager's and children's use of the Internet and the capacity of responsible adults to supervise them. Mr Cheah suggested that the community body would raise its profile so that people would identify it as the place to go for assistance about matters associated with Internet supervision: It is probably in a better position to provide advice and the right level of confidence to the sorts of people you are talking about. Those parents in the over-45 category are feeling a bit nervous about the Internet. They are asking questions and saying, `Before I get an Internet connection for our family, I want to have a reasonable degree of confidence that this is actually going to be controllable. Mr Cheah described some of the information he considered the advisory body might offer. The community body could have a hotline and people could access it for information about the options available on `clean services', filtering software and particular products. The Committee welcomes the establishment of the proposed community advisory body. It will be an important adjunct to the ABA and will, in the Committee's opinion, give this important element of the Government's package the level of priority attention it deserves. Finally, the Committee wishes to highlight aspects of the evidence of the Australian Library and Information Association, including that it perceives a librarian's role as monitoring a child's use of, but not providing supervision of, Internet access and content. Its Acting Executive Director, Ms Jennefer Nicholson told the Committee, for example: Regulatory challenges should not prevent libraries from protecting the freedom to read in the online environment, producing the best Internet experience for all users. Ms Nicholson noted that there was one public library in Queensland that had elected to implement filtering technology but, she claimed: ... a lot of councils have considered the matter of applying filters and they have usually concluded that they see it as a form of censorship and have elected not to do it. The realty is, of course, that the community does apply censorship in all other media, including in relation to the books and magazines that a library may make available. The Committee is strongly of the view that similar constraints should also apply in relation to online material. The Committee took evidence from several industry participants about the availability of differentiated services, use of which seems to prevail in the education sector. It seems to the Committee that libraries should offer filtered or differentiated services, perhaps by designating certain terminals for certain age groups. Further, given the almost constant use of Internet terminals within public and private libraries, the Committee believes that the Association's members are ideally placed to play a significant role within the Government's regulatory framework and it urges the Association to develop an appropriate protocol in this respect. The Committee is surprised about the claimed attitude of local councils and it will take up that issue with them later. The Committee cannot stress enough its support for community education programs as an aid to parents and teachers, and librarians, in the current situation where technology cannot be relied on to give the necessary level of assurance that children in their care will not access unsuitable material online. It urges the Government to ensure that the ABA and the community advisory body are adequately funded to enable them to properly discharge their online community education functions. In this respect, the Committee was concerned to hear the evidence of Young Media Australia, a highly respected community group with an outstanding record of achievement in the media field, which received a Commonwealth Government grant to establish its CyberSafety project, but which is now struggling to maintain momentum for want of follow-up funding. Conclusions In conclusion, the Committee believes the Government's approach accommodates emerging technologies, recognising that what is not possible today may be possible tomorrow. The Committee also believes that while emerging technologies will always entail people finding ways around technical restrictions, overall success should also take into account general compliance rather than simply measure universal compliance. However, several areas still require further clarification. These include: the lack of a specific reference to 'technical feasibility' in the legislation; the practical difficulties of complying with 'take down' orders, for example, on non-working days; further explanation of the differing roles of States and Territories with the Commonwealth; and the need to clarify the responsibility of Internet content providers. The Committee also believes that the reference in the legislation to 'unnecessary financial burden' be further examined with a view to making clearer what the term actually means. Evidence, 3.5.99, p. 316. Evidence, 29.4.99, p. 123. Evidence, 29.4.99, p. 148. Evidence, 29.4.99, pp. 119-20. Evidence, 29.4.99, p. 133. Report on Regulation of Computer On-line Services Part 3, Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Telecommunications, June 1997, p. iii. Evidence, 29.4.99, p. 126. Submission no. 64, Submissions volume, p. 559. Emphasis in original text. CSIRO report: Blocking Content on the Internet: A Technical Perspective, June 1998. Evidence, 27.4.99, pages 4-5 and 52. Evidence, 3.5.99, p. 166. Evidence, 3.5.99, p. 165. Evidence, 3.5.99, p. 284. Evidence, 3.5.99, p. 293. Evidence, 3.5.99, p 243. Evidence, 3.5.99, p. 246. Submission volume, pp. 165-6. CSIRO report: Technical Aspects of Blocking Internet Content, April 1999, pp. 5-6. Evidence, 29.4.99, p. 128. Evidence, 3.5.99, pp. 300-1. Evidence, 3.5.99, p. 300. Evidence, 29.4.99, p. 121. Evidence, 27.4.99, p. 21. Ibid. Evidence, 29.4.99, p. 137. Quoted in Evidence, 3.5.99, pp. 290-1. Senate Hansard, 21 April 1999, p. 3963. Evidence, 29.4.99, p. 143. Evidence, 29.4.99, p. 135. Evidence, 29.4.99, p. 134-35. United Nations Educational, Scientific and Cultural Organisation, The Internet and some international regulatory issues relating to content, October 1997, p. 36. Ibid, p. 37. Ibid. Evidence, 28.4.99, p. 94. Evidence, 27.4.99, p. 14. UNESCO report, op cit, p. 38. Singapore Broadcasting Authority Act 1994, paragraph 6(2)(c). UNESCO report, op cit, p. 39. Subsection 21(4) of the Singapore Broadcasting Act. UNESCO report, op cit, p. 42. Ibid (and see http://dtiinfo1.dti.gov.uk/hol/). Evidence, 3.5.99, p. 226. Evidence, 29.4.99, p. 144. Evidence, 27.4.99, p. 41. Evidence, 27.4.99, p. 45. ABA Submission, Submissions volume p. 82. See ABA submission pages 9-11 for comprehensive details (Submissions volume pages 82-84). Evidence, 27.4.99, p. 5. Evidence, 27.4.99, p. 16. Senate Hansard, 21 April 1999, p. 3958. Evidence, 29.4.99, p. 145. ABA submission, Submissions volume p. 82. Evidence, 27.4.99, pp. 12-13. Evidence, 29.4.99, p. 125. Evidence, 29.4.99, p. 145. Evidence, 29.4.99, p. 145. Evidence, 3.5.99, p. 190. Evidence, 3.5.99, p. 196.
Senate Committee 1999 << Federal Net Censorship << Internet Censorship/Free Speech << Danny Yee