Chapter 1

Chapter 1

Introduction

1.1 This is the Committee's second report on the issue of the regulation of computer on-line services. Its first report Report on Regulation of Computer On-Line Services Part 1 was tabled in September 1995. The report contained a description of the proceedings of a public seminar which the Committee had convened in Canberra on 4 April 1995 in order to examine the computer industry's concerns about the Government's proposals for regulation at that time. The Committee also gave a preliminary assessment of more recent developments at the Government level.

1.2 While the Committee noted in its report that Government announcements in July 1995, following the conduct of the Committee's seminar, seemed to represent significant progress, the Committee considered that there were limitations in the Government's approach to examination of the topic which a Committee inquiry might be able to resolve. For example, while the Government had invited submissions from the public in relation to its proposals, its deliberative processes on those submissions have been criticised by the Committee in the past as closed and secretive. By comparison, the Committee's approach is transparent and consultative and the protection of parliamentary privilege provides submittors the opportunity to be more frank and open about their views than they would to an impersonal public service inquiry.

1.3 Accordingly, on 31 August 1995 the Committee resolved to advertise an inquiry in the national print media in these terms:

    The Committee has resolved to undertake an inquiry into the regulation of computer on-line services in recognition of a growing community concern about unsuitable material being accessed by children using their home or school computer.

    The Committee will examine:

    (i) The operations of current and planned computer on-line services in Australia;

    (ii) the extent and sources of obscene, offensive or otherwise undesirable material through on-line services; and

    (iii) the adequacy of existing and proposed regulatory systems to control access by minors to such material both in Australia and overseas.

1.4 Because the Committee saw the need to present its advice to the Government in a timely manner, it sought submissions by 29 September 1995 so that it could report by the end of the 1995 sittings of Parliament. The Committee received 37 submissions which came from residents in each State and the Australian Capital Territory. A list of submittors is shown in Appendix 1. In this report, references to the evidence received by the Committee in submissions is cited as "Evidence, p. sXXX". Two volumes of submissions have been tabled with this report and can be obtained from the secretariat on request.

1.5 Public hearings were held in Canberra on 22 September 1995 and in Sydney on 12 October 1995. Details of witnesses at these hearings is shown in Appendix 2. In this report, references to oral evidence are cited as "Evidence, date of hearing, p.XXX". Copies of the Hansard transcripts of evidence have been tabled with this report and can also be obtained from the secretariat.

1.6 The Committee wishes to state its appreciation for the contributions of all submittors and of those persons who were also able to contribute to the Committee's deliberations at the public hearings.

Background

1.7 The Committee was first alerted to the inappropriateness of some of the material accessible through computer on-line services during hearings in 1993 in relation to the introduction of a scheme for the classification of video and computer games.

1.8 In discussing the practical implications of a scheme of classification of computer games Mr Christopher Blackman, Marketing Director of Leisure and Allied Industries, the operator of the chain of Timezone entertainment centres, had described as the real 'villain of the piece' computer bulletin board systems (BBS) accessible through modems and telephone links, which he stated were impossible to regulate and to police. He and other witnesses, including a group of Canberra-based high school students, raised with the Committee the spectre of unclassified games (ie. the most violent and sexually expicit) being available on computer bulletin board systems.

1.9 In its October 1993 Report on Video and Computer Games and Classification Issues the Committee noted that 'the situation presents the most challenging regulatory problem' and foreshadowed that it would pursue the matter or regulation of BBS at future hearings. In the interim, it called for Australia's Censorship Ministers to give consideration to immediate remedial measures.

1.10 While there was no public announcement at the time, it was subsequently revealed that the Standing Committee of Censorship Ministers, the tri-annual meeting of Commonwealth, State and Territory ministers with responsibility for censorship, had given its consideration to the issue of bulletin boards at its meeting on 4 November 1993. In deciding to regulate the sale, hire and arcade use of computer games the Ministers noted with concern that children could gain access by means of computer bulletin board systems to material which would otherwise be unavailable to them because of their age. Because of the greater complexity associated with the regulation of material available on BBS, the Ministers decided to deal with the issue separately.

1.11 On 3 February 1994 the Attorney-General, Mr Michael Lavarch, and the Minister for Communications and the Arts, Mr Michael Lee, announced the formation of a joint task force to investigate the way in which computer bulletin boards could be regulated. At the time Mr Lavarch said:

    We cannot allow advances in technology to overtake the legal and law enforcement measures designed to protect [children] in particular from undesirable material.

1.12 The Task Force on the Regulation of Computer Bulletin Board Systems ('BBS Task Force') was asked to investigate whether:

  • existing Commonwealth offences covering the misuse of computers and telecommunications services are adequate to deal with bulletin board abuse;
  • import/export restrictions are capable of controlling the international trafficking and subsequent copying and distribution of otherwise banned material;
  • State and Territory laws such as those dealing with the misuse of computers and possession of child pornography are adequate to deal with bulletin boards;
  • current law enforcement tools are adequate to deal with the new technology; and whether specific offences need to be created to cover paedophile computer networks, for example.

1.13 The BBS Task Force report, released to the public on 5 October 1994, identified five options but did not strongly push any specific recommendations. Apart from a "do nothing" option, the options identified were:

  • development and adoption of guidelines by the BBS community with a complaints based system of enforcement;
  • application of partial classification to BBS by prohibiting material which would be 'refused classification' and developing formal guidelines for dealing with 'restricted classification' material. No compulsory classification would be required;
  • application of partial classification together with a legal obligation on BBS operators regarding 'restricted classification' material; and
  • application of full classification to BBS including compulsory classification.

1.14 Because of an apparent lack of progress at the government level and computer industry criticisms of the proposals contained in the BBS Task Force Report, the Committee decided to bring the parties together in a public seminar to discuss the Task Force's report.

1.15 The April 1995 seminar was designed to have the issues fully aired and to enable the Censorship Ministers to be more comprehensively informed. Two major issues arose from the seminar. Firstly, the computer industry witnesses were critical of the lack of appreciation of the nature of the technology by the report's authors, which it was argued had the potential to severely damage the industry's development. Secondly, the rapid growth of on-line services such as the Internet had raised more complex regulatory issues than had been envisaged in the examination of BBS alone.

1.16 As a response to the latter issue, both the Committee and the Government have expanded the scope of examination to computer on-line services in general, which includes the Internet and related networks as well as BBS.

1.17 On 9 July 1995 Ministers Lavarch and Lee released a consultation paper Content Regulation of On-line Information Services. The paper proposed a strategy with three elements:

  1. A self-regulatory scheme incorporating a code of practice for the industry. The code's standards would be based on the current classifications used by the OFLC. A complaints mechanism would be set up to handle disputes between service providers and complainants.
  2. An education component to help protect children.
  3. Sanctions for breaches of community standards. Access providers would not be liable for material passing through their systems, but would have to show that they had taken reasonable steps to avoid a contravention of the offence provisions.

The deadline for submissions to the Department of Communications and the Arts was 1 September 1995.

1.18 On 14 July 1995, Mr Lavarch announced that the Censorship Ministers had unanimously endorsed this strategy and that the States and Territories had indicated that they would act quickly to amend their laws to give teeth to the strategy to deal with anyone who flouted the voluntary code. At that time, Western Australia and Tasmania were said to be planning to introduce amendments in the 1995 spring sittings as model legislation.

1.19 Western Australia was the first to act, introducing its Censorship Bill 1995 on 31 October 1995. The bill will make it an offence for a person to transmit, possess, demonstrate, advertise or request the transmission of material knowing it to be objectionable. Objectionable material is defined as material which would be refused classification, such as child pornography. The bill also makes it an offence to make restricted material available to a minor through a computer service.

1.20 On 8 August 1995, Mr Lee announced that he had directed the Australian Broadcasting Authority (ABA) to investigate the content of on-line information and entertainment services and to report by 30 June 1996. This wider inquiry was seen by the Minister as complementing the work already done in relation to the regulation of existing on-line information services and would particularly focus on community standards and expectations in relation to safeguards for access to emerging services.

1.21 The Committee's September 1995 Report on Regulation of Computer On-line Services Part 1 presented an overview of the major issues in the debate. As foreshadowed in its September 1995 report, the Committee comments in this report on the adequacy of the Government's recent initiatives having now had the opportunity to consider the submissions and oral evidence taken from government representatives, industry groups and the community on what has been proposed. The Committee has set out below details of its discussions with government representatives which clarified what is planned. The input from the industry and the community is summarised in chapters 2 and 3.

Government initiatives

1.22 The Committee heard evidence in Canberra on 22 September 1995 from representatives of the Department of Communications and the Arts (DoCA) and the Attorney-General's Department (A-G's) and in Sydney on 12 October 1995 from representatives of the Australian Broadcasting Authority (ABA).

1.23 Dr Rodney Badger, Acting Deputy Secretary of DoCA, emphasised that its inquiry and that of the ABA were component parts of a national strategy for information and communications services and technologies which had been announced by the Prime Minister on 6 April 1995. The Prime Minister had said in his statement that:

    These new services and technologies will change the way we live, work and play. Their effect on our businesses, or schools and universities, our hospitals, our governments, and many other aspects of our daily lives, will be profound.

    We have the opportunity to plan for a fairer, healthier, better educated and more productive 'information society', through a managed and consultative approach to the use of information and communications services and technologies.

1.24 The Prime Minister had stressed that the best way to address the range of issues raised in relation to the so-called 'information superhighway' was through a coordinated and whole-of-government approach. He announced the establishment of an Ad Hoc Committee of Cabinet and of the National Information Services Council. The Council was described as a high level discussion forum for broad policy issues providing industry and community input into the Government's consideration of the issues.

1.25 As Dr Badger indicated to the Committee, the Prime Minister directed the Communications and the Arts portfolio to coordinate national policy issues from a whole of government perspective. A task force, the Information and Communication Services Policy Group, had been established within the portfolio to service the advisory and consultative bodies announced by the Prime Minister and to serve as a focal point to coordinate information and communication services and technology issues in government. He added:

    We have a central role in the processes leading to the government's national strategy. The Prime Minister announced that the government will consider the various issues relating to industry, social services, education, research, regulations, access, privacy, security and a range of other factors affecting the uptake of the new services. The national strategy, as the Prime Minister put it, will address these issues in a systematic way and put in place processes and policies which will provide leadership and framework for moving into the next century (Evidence, 22.9.95, p. 3).

1.26 The Committee sought comment from Dr Badger and colleagues from the Attorney-General's Department about how the strategy of regulation proposed in the July consultation paper was expected to work and what comment had been received. Comment was also sought on what the ABA inquiry was intended to achieve and how its inquiry related to the Government's consultation paper.

1.27 Dr Badger stated:

    The strategy proposed by the consultation paper is intended to spell out the elements of a workable approach to the issues as we understand them. The strategy provides for an industry based scheme which underpins state and territory legislation, and it is supported by an education strategy to promote greater awareness of the issues (Evidence, 22.9.95, p. 4).

1.28 Dr Badger indicated the Government's preference for codes of practice as the basis of industry self-regulation following the model used in the Broadcasting Services Act 1992 (which were the subject of critical assessment in the Committee's October 1995 Report on the Operation of Codes of Practice in the Television Industry Part 1).

1.29 While compliance with a code of practice is seen as providing a defence to the offence provisions contained in the strategy, such that a service provider who had their systems used for objectionable material without their knowledge could rely on compliance with the code of practice as a defence, Dr Badger noted that 'the difficulties associated with the development and implementation of a practical code of practice should not be underestimated' (Evidence, 22.9.95, p. 4).

1.30 Ms Lyn Johnson, an officer of the Attorney-General's Department who chairs the interdepartmental task force which has been examining on-line services for the purposes of regulation, stated:

    If a complaint is made, the owner of the site would have an obligation to remove it. This would be expected to be part of the self-regulation. If they did not remove it, they would become culpable and able to be dealt with under the criminal provisions... The mobilisation of the community and the industry to develop a code of practice and a complaints mechanism meshes in with the offence provisions by providing the available defences, but they are not essential for the offence provisions to operate. If there is not a code of practice or a complaints mechanism in place, the offence provisions can still operate (Evidence, 22.9.95, pages 32 and 38).

1.31 Ms Johnson indicated that the task force had received over 100 submissions, about 75 per cent of which were critical of the concept of regulation, principally because of concerns that service providers would be held responsible for material stored on their systems. Given that the Censorship Ministers had supported the strategy of a self regulatory scheme backed by offence provisions at its meeting on 14 July, the Committee notes that efforts by submittors to oppose the concept of regulation were always going to be unproductive.

1.32 Dr Badger summarised the government's approach as:

    The objective at the end of the day is to have an environment in which the concerns of the community are met, rather than having one which necessarily has a particular set of controls in place. The objective is to try and solve the problem in a workable fashion which balances a series of various objectives that people within society have. There are community concerns, there are industry development activities, there are privacy concerns and, in general, there has been a move away from a lot of hands-on regulation by government towards industry codes, backed up by sanctions, in a range of policy areas (Evidence, 22.9.95, pp. 6-7).

ABA Investigation

1.33 In relation to the inquiry by the ABA, Dr Badger indicated that it should be seen as a 'natural progression in an environment where things are happening very quickly' and that it would examine 'the next generation of on-line services, those made possible by broadband capability and which, to consumers, will have the characteristics closer to those of the current broadcasting services than of the current narrowband on-line services' (Evidence, 22.9.95, p.3).

1.34 Mr Peter Webb, ABA Chairman, provided the Committee with copies of an exchange of correspondence between the Minister and the ABA and the Minister's formal direction for its investigation into the content of on-line information and entertainment broadcasting services, including any such services provided on the Internet. In his direction Mr Lee stated that:

    I am aware that there is significant community concern about offensive and possibly harmful material on on-line information and entertainment services and I believe that the ABA has the necessary experience and expertise in program content issues to investigate the issue and report to me (Evidence, 12.10.95, p. 46).

1.35 The ABA was also asked to consider the appropriateness of any measures which might be introduced to encourage or require on-line service providers and users to meet community needs through various means such as the development of and adherence to self-regulatory codes of practice, educational programs, complaints handling procedures, devices for blocking or filtering certain material and offence provisions.

1.36 Mr Webb made the point that the Censorship Ministers were pressing ahead with the modification of criminal law to take account of on-line services but that, below that criminal law, there is scope for a complementary level of civil law based on codes of practice and their enforcement, which will be the area of examination by the ABA. The question will also be examined as to the extent to which on-line information and entertainment services are accommodated by the Broadcasting Services Act 1992, which is administered by the ABA, and whether amendments are appropriate. The ABA is required to report to the Minister by 30 June 1996 and to publish its report.

International action

1.37 The final area of government action relates to the international dimension, given the sourcing of much of the undesirable and objectionable material from overseas. While material sourced from overseas falls outside domestic regulatory jurisdictions, the Committee has previously suggested that the Australian Government should seek to take a leading role in brokering international agreements to control undesirable material from transmission over telecommunications networks.

1.38 This issue was raised at the Committee's seminar in April 1995 with, at that stage, the disappointing advice that there was little interest in the matter in any international treaty organisation. Dr Badger informed the Committee that Australia had subsequently submitted a paper entitled Information Services Across National Boundaries to Study Group 1 of the International Telecommunication Union for consideration at its May 1995 meeting. The Study Group had decided that the matter was of sufficient significance that it should go forward to the plenary session of the World Telecommunications Standardisation Conference to be held in 1996.

1.39 Advice from the Department of Foreign Affairs and Trade indicated that no other international work was being done in this area, although the Committee was informed that there is scope under the auspices of the World Intellectual Property Organisation for the regulation of on-line information services to be given multilateral consideration in the future.

1.40 The ABA also expects to give consideration to the possibility of Australia taking an active role in achieving greater international collaboration in controlling the flow of undesirable material across borders. It has foreshadowed the examination of various options, including development of an international set of principles for the use of on-line services, encouraging nation states to develop domestic codes of conduct and long-term strategies for the development of appropriate international structures to deal with the problems posed by the emergence of global telecommunications services.