3.1 Having determined that some form of regulation of on-line services
is necessary to seek to introduce a situation of technological neutrality
in the maintenance of community standards, whereby otherwise refused or
restricted material should not be accessible by other media, the Committee
discusses the issues below.
Definitional issues
On-line services
3.2 The Government's July 1995 Consultation Paper proposed the following
definition of 'an on-line information service':
'an on-line information service' means a system of stored information
accessed by computer through the use of a telecommunications network
which allows a bi-directional transfer of files or messages between
the user and the system.
3.3 Some witnesses argued that there are deficiencies in this proposed
definition, especially in relation to communications between users, rather
than 'between the user and the system'.
3.4 The Committee was informed that many Internet services encompass
real time interactive communication between different users, using audio,
video or text (Monash University, p. s219). While the definition was thought
to be appropriate to on-line services such as BBS and the Internet, it
was not seen as broad enough to cover a number of interactive broadband
services (Evidence, p. s333).
3.5 News Limited was concerned both with the breadth of the proposed
definition, by including directed e-mail which it argued should be no
more restricted than private mail, yet too narrow in referring to stored
information, thereby excluding real time chat sessions (Evidence, pp.
s208-9).
3.6 On Australia argued that the proposed definition:
... is wide enough to encompass the full spectrum of functionality,
from private person-to-person electronic mail to unmoderated "Usenet"
style bulletin board systems. In the absence of specific offences relating
to each different function of an online information service, we believe
there is a danger that such a wide definition will lead to unintended
and undesirable consequences (Evidence, p. s341).
3.7 In its Censorship Bill 1995 Western Australia uses the expression
"computer service" which it defines as:
"computer service" means a service provided by or through
the facilities of a computer communication system allowing -
(a) the input, output or examination of computer data or computer programmes;
(b) the transmission of computer data or computer programmes from one
computer to another; or
(c) the transmission of computer data or computer programmes from a
computer to a terminal device.
3.8 The Committee could not comment whether this definition is preferable
to the government's proposal without taking advice on the matter. The
important issue from the Committee's perspective is that any definition
entrenched in law should be sufficiently encompassing of future interactive
services based on broadband capabilities as well as the current generation
of services obtainable through narrowband.
Objectionable and restricted material
3.9 In the offence provisions outlined in the government's consultation
paper, 'objectionable material' would be prohibited from transmission,
while 'restricted material' is not to be made available to certain persons
under 18 years.
3.10 The consultation paper defines 'objectionable material' in terms
corresponding to the refused classification categories contained in the
Classification (Publications, Films and Computer Games) Act 1995
and 'restricted material' as material that is unsuitable for a minor to
see, read or play, or depicts, expresses or otherwise deals with sex,
violence or coarse language in such a manner as to be unsuitable for seeing,
reading or playing by persons under 15.
3.11 Again, the Western Australian bill contains differing definitions.
While its definition of 'objectionable' is based on the concepts of the
Refused Classification category, but in substantially differing terms
to the consultation paper's 'model' provisions, in relation to restricted
material it refers only to minors, a person under 18 years, without reference
to age 15 years. Thus, Western Australia appears to have regarded the
MA category as an unrealistic threshold for on-line operators to achieve.
3.12 The Committee received a submission from the Religious Alliance
Against Pornography which questioned how R- and X- rated content can be
made available to adult subscribers on public on-line services without
children accessing these images. RAAP called for the definition of 'objectionable'
to be similar to the provisions presently applying to free-to-air television
(Evidence, p. s47), which would eliminate all material equivalent to R
and X but permit MA-classified material.
3.13 The Committee has previously given consideration to this issue in
relation to both 0055/0051 audiotex services and pay TV services and has
taken a similar view. In relation to the proposed "adults only"
0051 closed user access service, the Committee had recommended that R
and X rated material not be permitted, effectively limiting the 0051 service
to M-rated material (there being no MA category in place at the time).
Similarly, the Committee has recommended that neither R nor X rated material
should be permitted to be broadcast on pay TV. These recommendations recognised
that all material which is now classified MA would previously have been
included in the M classification. In both cases, access to the services
was intended to be restricted to adults only, but the Committee received
evidence that any controls could easily be evaded by minors.
3.14 As is discussed in detail below, the Committee notes that realistic
controls are currently absent on children's access to 'adult' on-line
material, with reliance essentially placed on parental and teacher supervision.
The Committee also notes that it is important for it to be stated now
what is the proper standard for on-line services, which will apply equally
to current and to new services as they are developed. The Committee believes
that Australia must consistently apply its community standards to new
technologies, especially in circumstances where it is otherwise impractical
to protect its children from harmful material, and is recommending accordingly.
The Committee notes that any restriction on Australian-sourced material
would not impact on the flood of overseas-sourced material, except at
the receiver end, but does not accept that problem as either insoluble
nor reason for a stand not to be taken.
Recommendation 1: That it should be an offence to use a computer service
to transmit, obtain possession of, demonstrate, advertise or request the
transmission of material equivalent to the RC, R and X categories.
3.15 In relation to the general issue of definitional and other differences
between the enforcement legislation of the individual States and Territories,
the Committee notes that this would be a most unfortunate outcome given
the progress towards uniformity which has been achieved over recent years.
The Committee is aware that the State and Territory governments are under
pressure to comply with their obligations under the intergovernmental
agreement underpinning the passage of the Classification (Publications,
Films and Computer Games) Act 1995 in a timely manner. The Committee
urges all State and Territory governments to seek to align their definitions
in relation to computer on-line services at the earliest opportunity.
It would certainly be an unfortunate outcome for Australia if a case was
repeated similar to US v Thomas where operators of a legal BBS
in California were convicted of obscenity charges after a federal officer
called the service from Tennessee where the law took a different view.
To regulate or not to regulate
3.16 As had been indicated by Ms Johnson from the Attorney-General's
Department in relation to submissions to the Government's consultation
paper, the Committee also received numerous demands that on-line services
be left free from regulation by government. Arguments varied from 'it
shouldn't be done', through 'it need not be done' to 'it can't be done'.
Regulation should not be done
3.17 The 'it shouldn't be done' argument comes from people holding the
anti-censorship view that they do not need government to tell them what
they can and can't see and say. In an idealised world, such arguments
would be persuasive. However, this argument fails to recognise the potential
for certain categories of material to harm or disturb members of society
or to pose a danger to the community. Thus, child pornography is banned
not only as a means of protection of young people from exploitation in
the production of the material, but also in recognition of its use by
paedophiles to satisfy their perversions. There are also suggestions that
paedophiles use child pornography to lessen the resistance of their youthful
targets. The Committee rejects this proposition that regulation should
not be done..
Regulation need not be done
3.18 The suggestion that regulation of on-line services need not be done
is based on a theoretical model of the high ethical standards of the majority
of the on-line community imposing technical and social sanctions on any
errant members. Devices include flaming, overloading of perpetrators'
systems and as a last resort, cancellation of access by service providers.
While such informal and contractual sanctions may prove effective as stop-gap
measures, many industry players have suggested to the Committee that some
form of governmental rule-setting would be of assistance to this process,
by providing benchmarks of behaviour and content as the basis for formal
sanctions.
3.19 Reference was also made to the existence of section 85ZE of the
Crimes Act 1914 which provides that:
A person shall not knowingly or recklessly:
(a) use a telecommunications service supplied by a carrier to menace
or harass another person; or
(b) use a telecommunications service supplied by a carrier in such
a way as would be regarded by reasonable persons as being, in all the
circumstances, offensive.
3.20 Several submittors emphasised that, until such time as this provision
had been adequately tested in the courts, new legislation was inappropriate.
Ms Johnson argued that:
I think one of the problems with that is that it does not provide the
range of defences that the proposed provisions [in the government's
consultation paper] do... That section was intended to apply to nuisance
phone calls, offensive phone calls. It just did not envisage the kind
of situation that we are addressing now (Evidence, 22.9.95, p. 5).
3.21 Ms Johnson added:
If it is hard-core pornography, involves the use of the telecommunications
system and is detected and investigated and the person who was responsible
for it is caught, then they can be prosecuted now. There are problems
with investigation ...Sometimes there are difficulties identifying the
person, the human being, the individual that actually placed the offensive
material on the system (ibid, p.10).
3.22 Submittors expressed varying opinions about the force of such arguments.
The Public Policy Assessment Society (PPAS) favoured the application of
criminal law standards of proof, and argued that the government's consultation
paper is proposing a system of 'criminal law sanctions with a veneer of
self-regulation ...From the viewpoint of the user of on-line systems,
this is the most repressive approach of all' (Evidence, p. s13). PPAS
clearly expressed the view that no new laws were necessary in this area
because of the Crimes Act provisions.
3.23 Considerable comment was received about the enforcement constraints
of any provisions in this area. These ranged from privacy rights, problems
of authentication of sender (who may use a number of technical means to
avoid detection), hackers and use of encryption. Mr Peter Merel, a systems
architect, informed the Committee that:
Strong cryptography essentially is the only way you can approach authenticating
users of the Internet. Without any authentication there is no way to
enforce the censorship regime...Cryptography is also vitally important
to find out the origin of a particular message, so it authenticates
both the content and the origin of the author (Evidence, 12.10.95, pp.
125 and 126).
This discussion suggests to the Committee that a combination of the Crimes
Act and compulsory strong cryptography could resolve both enforcement
difficulties and provide service providers with a defence to prosecution.
Recommendation 2: That the Government give consideration to making the
use of strong cryptography by service providers obligatory as a means
of overcoming perceived enforcement problems with section 85ZE of the
Crimes Act 1914.
Regulation cannot be done
3.24 Arguments that regulation of on-line services cannot be done are
more complex, having technical, jurisdictional and enforcement elements.
Managing Director of Ausnet Services Pty Ltd, Mr Thomas Koltai, told the
Committee that:
- the content of the Internet cannot be regulated because of the 'sheer
volume';
- there are technical difficulties in achieving regulation because,
no sooner is information filtered from one source, it becomes available
from another site;
- graphic image format (GIF), such as a photograph or a digital image,
is very difficult to automatically scan for offensive content, since
to a computer it is a series of bits and bytes;
- as the Internet grows, even more people will want to publish material,
making control even harder; and
- anti-porn software filters on the receiving computer in the home
or school work only on text, but then have difficulty coping with
the volume. Filtering of multi-media messages, involving animation,
video or voice, is impossible. (Evidence, 12.10.95, pp. 137-8).
3.25 These points were emphasised and expanded upon at length in the
submissions, which are available for scrutiny by interested parties.
3.26 Other Service Providers took a more positive position in relation
to the introduction of a scheme of government regulation. Compuserve advised
the Committee that it believed that the Government's consultation paper
was 'a very workable basis for a regulatory system' (Evidence, p. s100).
Its Marketing Manager, Mr Brendan Lansdowne, emphasised to the Committee,
however, his company's concerns about the need to clearly differentiate
the responsibilities of the content provider on the one hand (i.e the
author, creator, poster) and those of the service provider on the other
(Evidence, 12.10.95, p. 130).
3.27 This point was repeatedly made by industry operatives, who were
basically concerned that they might be held legally liable for the material
which merely passes through their systems when they have no role in its
creation nor would they be aware of what it contained.
3.28 Telstra, for example, informed the Committee that it operates across
several sectors of the on-line industry not only as the network operator,
but also as a service provider and a content provider. Its representatives
informed the Committee that it favoured the principle of industry self-regulation,
but was concerned about aspects of the government's proposed scheme. In
particular its submission stated that:
A "one size fits all approach" to content regulation does
not recognise the differing degrees of control over content exercised
by network operators, service providers, content creators and consumers
across the "information services value chain" (Evidence, p.
s114).
3.29 Telstra particularly emphasised the differences in the relationship
of such commercial on-line suppliers as On Australia 'where they have
a reasonably close relationship with their content providers' with the
Internet 'where there is no relationship' (Evidence, 12.10.95, p. 70).
3.30 Optus Vision also expressed in principle support for the government's
regulatory strategy. It noted with concern however:
The focus of the proposed self-regulatory scheme and the offence provisions
is on making the service providers and/or system operators responsible
for what goes over the system or network and also liable for the transmission
of objectionable material (with 'reasonable efforts' defences applying)
... service providers and network operators are asked to assume the
roles of censors and police - if they fail in those roles, they become
the culprits (Evidence, p. s330).
3.31 Optus Vision echoed Telstra's argument that 'the responsibility
and liability of each category should be in proportion to the control
which each has over the production of objectionable material and not in
proportion to the role which each has in the physical transmission of
that material' (Evidence, p. s330).
3.32 The Committee heard similar arguments from the then Telecom in relation
to its role in the transmission of 'adult' audiotext services using the
0055 prefix. It argued then that, as a network operator, its primary function
was to provide a better, faster, cheaper, more efficient infrastructure
regardless of the nature of the traffic it carried. It strongly objected
to any notion that Telecom be a censor of the material it carried.
3.33 While network operators such as Telstra and Optus cannot be expected
to determine the acceptability of content of the material they transmit,
they are in a commercial and contractual position with the service providers
to ensure that some effort is made to address the content issue. Telstra's
representatives informed the Committee that they do, in fact, have a contractual
condition with their service providers in relation to operating legally;
however, what the Service Provider then does is a matter for that business
to determine.
3.34 The Committee would not wish to suggest that network operators should
be held liable for the mere transmission of material through their infrastructure
networks. Their role is, in this respect, no different from Australia
Post which delivers mail but is not expected to know what is contained
therein. Their responsibility should only be to ensure that appropriate
constraints are placed in contracts with their clients, the access and
service providers, which could be enforced should circumstances require.
However, the Committee also believes that it would be appropriate for
some part of the revenue gained by the network operators to be made available
towards the cost of operating any regulatory system, as now prevails with
the operations of the Telephone Information Services Standards Council
in relation to audiotex services.
Recommendation 3: That subject to the making of contractual arrangements
with access providers/service providers to require their compliance with
the law, network operators should bear no responsibility or liability
for material which passes over their networks.
3.35 The situation with companies marketing on-line services is less
clear, however. There are several categories of suppliers, who have differing
levels of involvement in the control of the material they transmit.
3.36 The most basic level is provided by Access Providers (APs) who provide
conduits to the Internet. They typically provide "access points"
to the system, so that individuals can call others located anywhere in
the system. However, the content of the data is completely under the control
of the originator.
3.37 As stressed by iiNet Technologies Pty Ltd (iiNet), an access provider
based in Western Australia:
The volume of material is huge and contantly changing, on a minute
by minute basis. It is not possible for iiNet to monitor or assert editorial
control over this material ... Just the changes in a single day would
require tens of thousands of hours to review and examine (Evidence,
p. s180).
3.38 Telstra's representatives confirmed that APs have no control over
material which is received over their systems and made available to end
users. In fact, under the Telecommunications (Interception) Act 1979
they would be prohibited from listening in or recording communications
over a telecommunications system, except under warrant. Telstra made the
point that, should governments seek to place a liability on APs for what
they are carrying, companies would not be willing to operate (Evidence,
12.10.95, pp 72-4).
3.39 The Committee notes the similarity in operations between Access
Providers and the network operators, with one important proviso. While
network operators operate only on a contractual level with on-selling
companies, AP's deal with clients who will be both information/content
providers and information/content receivers. iiNet argued that, given
that it is beyond the ability of government to regulate overseas-sourced
offensive material and, therefore, there can be no certainty about what
material children might access:
This submission therefore concludes that the Internet is not an appropriate
place for unattended children ...iiNet believes that Access Providers
should be prohibited from connecting minors to the Internet (Evidence,
p. s183).
3.40 The Committee concurs with this view in relation to the industry
in general, and not simply Access Providers. The Committee is also of
the view that, in seeking to ensure that minors are not connected to on-line
services, Access and Service Providers be required to adopt whatever practical
measures are available for ensuring the identification of clients, as
an aid to future regulatory action. The approach adopted by the banks
may be a useful model.
Recommendation 4: That Access and Service Providers be required to verify
the identity of all clients and that all clients are over the age of 18
years.
3.41 The operational situation with Information Service Providers (ISPs)
is less clear than with APs as they constitute a disparate group of companies
offering a range of services in a competitive environment. Compuserve,
for example, is both a content provider for a wide range of services and
a marketer of content supplied by third parties. While it is prepared
to take full responsibility for the content of its own services, it expressed
concern that it should not be required by any regulatory system to take
responsibility for third party content beyond enforcing the type of contractual
mechanism it has with its members. Compuserve's Mr Lansdowne, told the
Committee:
Generally what we are saying is that those who provide the content
are responsible for the content and that the service provider is simply
providing an operation type environment - for example, billing systems,
customer support and technical network facilities - to enable this distribution
of information to be carried out ... Equally ... we will act in a responsible
way concerning content that has been put up that is objectionable to
the public at large (Evidence, 12.10.95, p. 130).
3.42 Mr Lansdowne then emphasised that Compuserve has contractual arrangements
containing Operating Rules with its own information providers and to which
all members of the service also subscribe when joining. These rules include
the right to edit and delete inappropriate material, and to ensure compliance
with legislation. Information placed on Compuserve Forums (equivalent
to bulletin boards) is monitored after the fact, usually when a forum
manager either spots untoward material or receives a complaint. Compuserve
also provides a gateway to the Internet, over which the only technical
control it is able to exercise is the selection of appropriate material
in news groups. Through software, however, it is able to offer a subset
of Internet called Kidnet by which parents and teachers can subscribe
to a restricted range of information.
3.43 The Committee notes that such niche marketing is an increasing part
of on-line services and offers one remedial option to parents and teachers
concerned about children's access to adult services.
3.44 On Australia shared Compuserve's concerns about ISPs being held
liable for material they had not authored, recommending instead that liability
be imposed on either content providers or end users. On Australia has
a Member Agreement which seeks to impose its self-regulatory standards
on its users, including that:
You or anyone else using your Member identification must not, under
any circumstances ... publish, post, distribute or disseminate defamatory,
infringing, obscene, or other unlawful material or information via MSN
[the Microsoft Network] (Evidence, p. s352).
3.45 On Australia reserves the right to remove any material from any
service at any time and for any reason. It can issue warnings, impose
temporary or permanent suspension, or terminate membership. Its major
thrust in relation to children's access to adult services, while members
must be over 18 years, is to issue parental warnings of the need for supervision.
3.46 On Australia's representative before the Committee was its external
legal counsel, Mr Philip Argy. As a member of the National Information
Services Council's Legal Issues Working Group Mr Argy developed tables
and a matrix which determined the appropriate regulatory response to the
different on-line functions by analogy with their physical world equivalents.
The tables and matrix are attached to this report as Appendix 3.
3.47 These analogies between electronic and physical services led Mr
Argy to assert that:
People need to be educated to understand that the law will apply to
people's conduct regardless of the mechanisms they use to implement
their conduct ... Our approach is to say that the law will apply to
what people are doing, not how they are doing it (Evidence, 12.10.95,
p. 116).
3.48 His major concern was that Australia might follow the New Zealand
model which makes the ISPs liable for all the content they carry and to
explicitly make "lack of knowledge" not a defence. Mr Argy described
that approach as 'bizarre and unreasonable' (Evidence, 12.10.95, p. 122).
Mr Argy saw such regulation as a virtual death sentence for on-line services
in Australia.
3.49 The Committee acknowledges that only where ISPs have full control
over material that is available on their equipment do they have a right
and therefore a responsibility to act to control it. The Committee notes
that section 85ZE of the Crimes Act is drafted in terms which distinguishes
between the actions of the person who is perpetrating the crime and the
carrier. This provision provides a useful model.
Recommendation 5: In any offence provision, a clear distinction must
be drawn between the liability of the originator of objectionable material
and a carrier of that material, in the manner of section 85ZE of the Crimes
Act 1914.
3.50 Thus, it should be a defence to service providers that they unknowingly
transmitted objectionable material. An ISP who decided to operate in a
niche of marketing "adult services" should not, however, be
able to use the fact of being as ISP solely as a defence to prosecution.
3.51 The Western Australian Censorship Bill 1995 provides one
approach in this respect. Clause 102 states, in part:
A person must not use a computer service to -
(a) transmit an article knowing it to be objectionable material
[emphasis added].
3.52 Similar provisions relate to knowingly obtaining possession of or
demonstrating objectionable material. The only defences offered relate
to the material being of recognised literary, artistic or scientific merit,
or a bona fide medical article and 'that transmitting, obtaining possession
of, demonstrating, advertising, or requesting the transmission of, the
article is justified as being for the public good.' Compliance with a
code of practice is not a defence in relation to objectionable material,
but is provided for in relation to restricted material.
3.53 A particular area of concern to the Committee, however, relates
to the liability of ISPs when moderating services either through human
or technical intervention. The Committee would applaud and endorse any
ISP who attempted to regulate content through monitoring. However, there
is an indication in a US court decision that, ironically, ISPs who seek
to exercise editorial control over material from their sites could be
found liable for the carriage of such content, while an unmoderated site
would not.
3.54 On Australia's submission referred to the recent Internet Freedom
and Family Empowerment Bill passed by the US House of Representatives.
The bill provides that service providers and users of interactive computer
services may not be held liable as a result of:
(1) Any action voluntarily taken in good faith to restrict access to
material that the provider or user considers to be obscene, lewd, lascivious,
filthy, excessively insolent, harassing or otherwise objectionable,
whether or not such material is constitutionally protected; or
(2) any action taken to make available to information content providers
or others the technical means to restrict access to material described
in paragraph (1) (Evidence, p. s339).
3.54 The Committee received no clear indication about the relevance of
the US court's decision to the Australian situation. If there is the potential
of the perverse result of ISPs being held more liable for seeking to "do
the right thing" than doing nothing, then a law similar to the US
should be introduced. The Western Australian bill offers such protection
to defendants in relation to restricted material, but not objectionable
material.
Recommendation 6: That where Service Providers can demonstrate that
action had been taken in good faith to restrict access to objectionable
material they should have a defence from liability for carriage of such
material.
3.55 This discussion leads to the following issue: if ISPs are to be
absolved from responsibility for the unknowing transmission of objectionable
material, what if anything should they be expected to do in a proactive
manner to regulate the flow of objectionable material, how should they
go about controlling restricted material and what other material, if any,
should they be expected to address.
3.56 Should the government, for example, establish a regulatory agency
charged with scrutinising the industry's operations and launching prosecutions
of untoward behaviour as proscribed in law. This approach would once have
been the natural governmental response to such problems, but is now out
of favour within the model of micro-economic reform which argues that
it is not always appropriate for the taxpayer to have to pay for the regulation
of a problem which is the creation of industry and for which industry
should be held responsible.
3.57 Alternately, perhaps it should be obligatory on ISPs to set up mechanisms
for identifying objectionable material, thus effectively denying the defence
of "unknowing", and requiring them to remove any thus found.
Given the sheer volume of material, the resource considerations of such
a proposal would be substantial and possibly fatal for the industry. Even
without formal intervention, some companies can be expected to offer moderated
or pre-screened material as a niche marketing ploy.
3.58 The Government's approach to this issue is through the use of self-regulatory
industry codes of practice. As described in its consultation paper:
The development of self-regulation will mean that there will not be
a need for compulsory or formal classification of material on on-line
information services by the Office of Film and Literature Classification.
Instead a code of practice will include guidelines developed in consultation
with industry and community (Consultation Paper, p. 6).
Pre-classification is, of course, a practical impossibility with the
volume of material in question.
3.59 The Committee recently examined the operations of codes of practice
in the television industry and found much to commend the concept. Broadcasters
are required to pre-classify material in a manner consistent with other
media, but are held accountable for their decisions post hoc. The Committee
noted a high degree of compliance with codes of practice in the television
industry, with few breaches upheld by the regulator, the Australian Broadcasting
Authority. Problems were noted principally in the level of public involvement
in the system and with the inadequacy of sanctions available to punish
errant behaviour.
3.60 The scheme of self-regulation outlined by the government seems to
embody the positive elements of the broadcasting model, but introduced
powerful offence provisions as an incentive to the self-regulatory process.
3.61 The government has also proposed the establishment of a single and
independent complaints handling body as part of an effective self regulatory
framework. The Committee has also examined the operations of such a body
in relation to the audiotex industry. The Telephone Information Services
Standards Council (TISSC) operates without any legislative basis to effectively
limit the potential excesses of that industry. Its sanctions are based
solely on contractual arrangements between network operators and service
providers and its operations are funded by those parties.
3.62 An equivalent on-line services complaints body could receive complaints
from the public about objectionable or restricted material available on-line
and, after investigation, the body can direct the appropriate transmitter
to take whatever action is technically feasible to remove the offending
material from the system.
3.63 This proposal has several obvious advantages. Firstly, because it
would consist of some industry representatives, the complaints body would
always be up-to-date on technological developments. Secondly, the type
of public involvement sought by the Committee in the broadcasting industry
can be addressed for the on-line industry by an on-line invitation for
volunteers to contribute their perspectives to the process of self-regulation.
As suggested by the National Women's Media Centre, any such body should
consist of at least one-third women to ensure that there is a reasonable
gender balance in the decision making structure (Evidence, 12.10.95, pp.
90-1). Similarly, the Committee supports the view of the Association of
Heads of Independent Schools that teachers and students should also be
represented (Evidence, 12.10.95, p. 87). Further, costs of administration
of the complaints body are borne by those who have a commercial interest
in its successful operation.
3.64 The Committee does not wish to seek in this report to prescribe
the appropriate content of codes of practice, beyond the prohibition on
RC, X and R-rated material and any other matters raised above. It should
also be obligatory for breaches of the law in relation to RC material
to be referred to the relevant authorities. But, because of the technical
complexity of the industry, the Committee accepts that the drafting of
the codes is a matter best left in the first instance to the industry,
especially given the concerns that a "one size fits all" approach
is inappropriate. The Committee will maintain a close interest in the
development of the codes, however.
3.65 What needs careful examination in the context of the development
of the codes of practice is what other categories of material would be
inappropriate for transmittal. Having noted in chapter 2 the argument
that material which is a bomb recipe in the hands of a terrorist or a
juvenile is no more than technical data to a munitions expert, it is clear
that some close drafting is necessary to make such important distinctions.
The TISSC code of practice, for example, states what content should not
be included such as:
. is likely to be, having regard to the contemporary attitudes of Australia
society, unsuitable or harmful to those under 18 years;
. is likely to be, having regard to the contemporary attitudes of Australian
society, offensive to reasonable adults;
. incites or encourages violence or brutality against any person or
group;
. causes unnecessary alarm, distress or panic; or
. incites or encourages dangerous or harmful behaviour or practices.
3.66 The Committee would see all of these provisions as equally appropriate
to on-line services as to audiotex services.
Recommendation 7:
(a) That a system of self-regulation be instituted for the on-line
industry based on codes of practice and the establishment of an independent,
authoritative complaints body with a capacity to impose realistic sanctions
over breaches of the codes, including on-the-spot fines;
(b) That the Telephone Information Services Standards Council and
its codes of practice provide a model for the proposed on-line services
complaints body;
(c) That 50% of the membership of the body should be user representatives,
with overall gender equity and with representation specifically from
the education sector.
Overseas developments
3.67 The Committee's terms of reference also required it to examine regulatory
systems overseas. Given the global nature of the Internet, it would be
an heroic task to address this issue on any comprehensive basis. The situation
in the United States, possible source of much of the contentious material,
makes an interesting case study for comparison with the Australian situation.
3.68 There have been four different pieces of legislation before Congress
that address the topic of Internet regulation. The two principal proposals
are the Communications Decency Act and the Internet Freedom and Family
Empowerment Act. The former, proposed by Senators Jim Exon and Slade Gorton,
originally sought to extend existing regulations designed for obscene
and indecent audiotex to cover all content carried over all forms of electronic
communications networks. The proposal would impose fines of up to $100,000
and two-year prison terms on anyone who knowingly transmitted any 'obscene,
lewd, lascivious, filthy or indecent' communications on a telecommunications
network. In this original form, telephone companies, commercial on-line
services, the Internet and BBSs would have been liable for every item
carried on their systems, including private conversations or messages
between two consenting adults. In the version of the Act adopted by the
US Senate in June 1995 by a vote of 84-16, amendments were included which
targetted liability to the individuals or organisations which had made
the untoward material available, not the network or service providers,
and made it clear that electronic conversations between consenting adults
would still be protected.
3.69 The second Act was adopted by the House of Representatives in April
1995 by a vote of 421-4. It specifically prohibits the Federal Communications
Commission from regulating constitutionally-protected on-line speech and
seeks to absolve service providers from liability if they had taken good
faith measures to screen their content or had provided parental-screening
software.
3.70 A third bill, sponsored by Senator Patrick Leahy, the Child Protection,
User Empowerment, and Free Expression in Interactive Media Study Act,
sought to direct the Department of Justice to study whether current law
was sufficient to cover enforcement of existing obscenity laws on computer
networks. A similar suggestion was put to the Committee by representatives
of Telstra. However, Senator Leahy's bill was rejected by the US Senate
in June 1995.
3.71 Finally, the Protection of Children from Computer Pornography Act
has been sponsored by Senator Bob Dole and six colleagues. This bill would
make Internet Service Providers responsible for shielding people under
18 years from all indecent content on the Internet. Little progress appears
to have been made with this bill.
3.72 At the time of writing this report, the bills passed by the Senate
and the House of Representatives had been referred to a Conference Committee
of the House Committee on Commerce and the Senate Committee on Commerce,
Science and Transportation for resolution.
3.73 An interesting comparison can be made with such South-East Asian
countries as Singapore. Ausnet's Managing Director, Mr Thomas Koltai informed
the Committee that Singapore was ahead of Australia in terms of on-line
development, having adopted pro-active policies encouraging individuals
to connect with the Internet. The Singapore Government has adopted policies
in the past to restrict political dissent and pornography. Mr Koltai indicated
that while Singapore has restricted its own citizens from placing such
material on the Internet 'but they are leaving alone the stuff that is
coming into the country' (Evidence, 12.10.95, p. 140).
3.74 Singapore's Communications Minister, Mah Bow Tan has been quoted
as saying:
Singapore's future competitive advantage lies in being computer literate
... More than any other country we cannot shut ourselves off from the
outside world ... Singaporeans must embrace new technology like the
Internet. We must understand and capitalise on the opportunities it
presents, while being aware of the threats which it poses, without being
overly distracted by them (AFP, 5 September 1995).
Education programs
3.75 The final element of the Government's strategy for the regulation
of on-line services revolves around an education program directed at informing
parents and teachers about the possible perils which might be encountered
on the "information superhighway". Given that the indications
are that the vast majority of untoward material is sourced from outside
Australia's jurisdiction and that there are therefore minimal regulatory
controls on its accessibility by children in the home or school, it is
critical that users are alerted to what on-line services might contain
and what measures are available to avoid unwanted access.
3.76 Representatives of the Association of Heads of Independent Schools
emphasised:
... there is a responsibility of parents, teachers and government to
protect children from viewing demeaning, unsuitable and even pornographic
material on the Internet (Evidence, 12.10.95, p. 86)
3.77 The Australian Parents Council told the Committee:
We are anxious ... to ensure that children and young people reap the
benefits to be derived from on-line services while being protected from
access to inappropriate material or material inappropriate to their
particular age ... We believe that parents will need to guide their
children and young people in the responsible use of this technology
in the same way as they endeavour to guide them to responsible adulthood
(Evidence, 12.10.95, p. 85).
3.78 The point was frequently made, and one which Committee members can
personally relate to, that children are generally more computer literate
than their parents. It is particularly difficult for parents to exercise
adequate guidance in such circumstances and hence the need is clear for
an education strategy directed at parents.
3.79 The Australian Council for Computers in Education sees great advantages
for teachers from access to computer networks, especially those who are
isolated geographically or professionally. In relation to offensive material
it believes that:
The biggest problems will arise with minors being given open access
from home. While the connection is made in a public space such as a
classroom, students are not likely to access inappropriate material
in full view of the teacher or rest of the class (Evidence, p. s295).
3.80 The Council's President, Mr John Morgan, suggested to the Committee
that one way to overcome this problem may be for computers to be placed
in a more public place within the home where parents can become more involved
in what is actually going on (Evidence, 12.10.95, p. 112).
3.81 Mr Morgan emphasised the value to parents of either subscribing
to pre-filtered services or employing software devices. He noted that
the New South Wales education system is developing its own site and service
provision and is looking at having various levels of user registration
which will allow access to only certain sites.
3.82 The Australian Council of State School Organisations (ACSSO) indicated
in its submission its particular interest in the Government's initiative
to develop the Education Network Australia (EdNA).
3.83 EdNA is the result of agreement by the Council of Ministers for
Education, Employment, Training and Youth Affairs (MCEETYA) in May 1995
to co-operate in the establishment of a national education network. EdNA
will link for the first time all schools, TAFE colleges, universities
and other education and training providers across Australia, as well as
internationally through a service network and modern technology for interactive
communication. The network will develop as potential users gain access
and as more material becomes available.
3.84 ACSSO stated:
... the best opportunity for eliminating the worst excesses of unsuitable
material may well be by making a supervised and controlled EdNA so widely
available and at a cost so reasonable that it effectively freezes out
the Internet except to those for whom it offers specific services (Evidence,
p. s39).
3.85 Schoolsnet informed the Committee about its product, Censor Man,
which applies a blocking mechanism on the server for a whole network.
It can be adjusted to apply to different computers differently (so that
staff access is different to student access) and the school can choose
what material is to be blocked. It is also difficult to block because
the software is inaccessible to the users. At a cost of $10,000 Censor
Man may be out of reach of many schools, but has apparently proven popular
with secondary schools in Victoria.
3.86 A number of short-term software blocking options are available on
the market at prices within the reach of schools and private homes (a
summary of which is given in Mr Greg Taylor's submission, pp. s441-2).
In any education strategy, teachers and parents should be informed of
their existence and their benefits and disadvantages.
3.87 Three of the major software companies in the US have formed a consortium
called the Information Highway Parental Empowerment Group. The Committee
was advised by On Australia, which is 50% owned by the Microsoft Corporation,
a member of IHPEG, that:
... the group is working to develop strategies and solutions by which
parents and teachers will have greater abilities to monitor the information
to be accessed by children under their supervision... We anticipate
that technical solutions will be developed whereby, for example, teachers
or parents will be able to select particular Internet services to be
accessible, and to close off the possibility of connection to all other
services (Evidence, p. s339).
3.88 Mr Greg Taylor's submission referred to IHPEG having recently announced
plans to develop technical standards to enable voluntary rating by content
creators (Evidence, p. s442). Several witnesses referred to this process
of "tagging" as a technical means by which individuals and families
can block certain material if they choose (Evidence, 12.10.95, p. 121
by Mr Argy and p.127 by Mr Merel; and Schoolsnet's submission, p. s384).
Thus, either service providers or parents could, through software, restrict
access to, say, sites carrying only "G" tagged material.
3.89 Schoolsnet noted that the standards by which authors would self-classify
would need to be established by international consensus. While having
some doubts about the proposal's likely effectiveness as a regulatory
mechanism given the range of international concepts of community standards
which would have to be embodied in the scheme, it is nonetheless an approach
which the Committee would encourage the Australian Government to pursue
at appropriate international forums.
Recommendation 8: That the Australian Government pursue at appropriate
international forums the concept of classification at source of all
material placed on-line, based on an agreed set of classification standards.
3.90 Several witnesses provided the Committee with a document "Child
Safety on the Information Highway" produced jointly in the US
by the National Centre for Missing and Exploited Children and the Interactive
Services Association. The document identifies the following three areas
of risk for children who use on-line services, particularly teenagers
who may use computers unsupervised and who are more likely than younger
children to participate in on-line discussions regarding companionship,
relationships or sexual activity.
1. Exposure to inappropriate material
One risk is that a child may be exposed to inappropriate material of
a sexual or violent nature.
2. Physical Molestation
Another risk is that, while online, a child might provide information
or arrange an encounter that could risk his or her safety or the safety
of other family members. In a few cases, pedophiles have used online services
and bulletin boards to gain a child's confidence and then arrange a face-to-face
meeting.
3. Harassment
A third risk is that a child might encounter E-mail or bulletin board
messages that are harassing, demeaning, or belligerent.
3.91 The document concludes with a 6-point set of "My Rules for
Online Safety" These are reproduced as Appendix 4 and are, in
the Committee's opinion, a commendable starting point for any education
campaign.
3.92 Parents and teachers need to be aware that, regardless of the best
endeavours of regulators and technological and software devices to seek
to limit objectionable material available on-line, children should not
be, in the words of a submittor from the University of Wollongong:
released into this virtual society unsupervised, just as I would not
allow them [her children] to wander the streets alone (Evidence, p.
s408).
3.93 While the Committee recognises that the education strategy is not
a necessary part of the regulatory process currently in train, the Committee
commends the Government for its stated intentions in this regard. The
Committee urges all Governments to ensure that the educational program
is funded at a level to ensure that all schools can be fully involved
in the process.
3.94 In this report the Committee has directed its
attention solely at the key issue of the regulation of obscene, offensive
or other undesirable material available through on-line services. This
is the charter of the Committee provided to it by the Senate. It recognises,
however, that there are many legitimate and valuable services to be obtained
on-line.
3.95 A simple listing of some of the most exciting
opportunities provided on-line indicates its potential. X-rays and scans
can be sent from specialist to specialist for analysis in seconds. Surgeons
can confer on-line even when thousands of kilometres apart. Through videoconferencing
schoolchildren can interact with others from around the world. Whole libraries
are available on-line for ready access. Tele-shopping is close to a reality.
Multimedia applications are imminent.
3.96 When consideration is given to what possibilities
this technology holds for people living in remote locations, the opportunities
are significant for the betterment of their lives. The Committee has been
conscious in its examination of the issues that a fine balance needs to
be struck between the retention of the many positive features available
on-line and the regulation of the undesirable elements.
3.97 The Committee wishes to state that it has considerable
faith in the goodwill of participants in the industry to take whatever
measures are within their capabilities to discourage the purveyors of
objectionable material from bringing them into disrepute. They have clearly
indicated to the Committee, however, that some form of government guidance
and support in this task would be most helpful.
3.98 The Committee believes that, in its recommendations in this report,
it has given the industry a sound regulatory environment in which it can
flourish while appropriate attention is paid to the areas of greatest
concern. Equivalent self-regulatory schemes in broadcasting and audiotex
services are generally operating effectively, especially after they have
been subjected to periodic external scrutiny by the Committee.
3.99 In relation to progress with the regulation of on-line services
the Committee will monitor with interest the conduct of the inquiry of
the Australian Broadcasting Authority as it endeavours to seek to establish
an effective basis for self-regulation for broadband services, the next
generation of technological development.
3.100 The Committee is also aware that the march of technology is rapidly
placing access to on-line services and the provision of on-line services
beyond universal and effective regulatory reach. In that circumstance,
the consumer of any age is alone to decide what material to view. It is
then the responsibility of Government to ensure that the consumer is adequately
aware of and possesses the necessary critical skills and information to
make an informed decision for themselves.
3.101 Widespread public education and debate is essential for each consumer
to make an informed choice about what material to view. To this end, the
Committee intends to sponsor a conference to examine how such debate and
education might be fostered, drawing on the widest possible range of experts
and organisations with relevant skills, experience and responsibility.
Senator Margaret Reynolds
Chairperson