Chapter 2

REGULATORY MEASURES

2.1 As mentioned in paragraph 1.3, in its second report on the regulation of computer on-line services in 1995, the Committee recommended the development of a system of self-regulation for the on-line industry (Recommendation 7, Appendix 1). The Committee stands by that recommendation but developments since that time (including a growing perception in some sections of the on-line industry that that industry should be totally unregulated and that it should not be bound by national laws because they are too difficult to enforce) have led the Committee to conclude that legislative measures must be introduced to complement the codes of practice developed by the industry.

2.2 In considering possible legislation to cover on-line services, the Committee is mindful of the comments of Liberal member of the Victorian Parliament, Victor Perton, described by a computer expert as "acknowledged as one of the few 'Net-savvy' politicians in Australia" who commented on the Internet that: "If parliaments don't deal with the Internet, they're characterised as Luddites. If they legislate, they're referred to as 'clueless'": [1] The inquiry revealed widespread concern from users of on-line services that the government wanted to regulate the industry because it was confusing it with broadcasting. The Committee wishes to make clear that, in considering various measures, it has evaluated them in the context of on-line services, not broadcasting services. However, it is also aware that some on-line services are now being used for broadcasting purposes and more are likely to be so used in the future.

2.3 In submissions and evidence to the Committee, witnesses stressed the point to point (or one to one) aspect of Internet communication that differentiates it from broadcasting:

There are plain differences across a whole spectrum of attributes that make it different, the key one being you don't just turn it on and get stuff. You have to go and call for it. You have to look for it. Indeed, not only do you have to go look for it and download it, you then have to decrypt it if you really want to see the juicy stuff that most people would call objectionable material. [2]

2.4 The Committee notes that, while some pornographic sites require decryption, this is by no means the norm and a large number of such sites on the Internet can easily be accessed by children if blocking software is not being used at their access point. The Committee wishes also to stress that if all communication on the Internet was in fact private communication between two persons or organisations, it would not be conducting this inquiry. The Committee does not intend to recommend the regulation of private correspondence (e-mail) between individuals.

2.5 However, it recognises that, when correspondence is published in a daily newspaper for example, it is no longer "private" and is subject to current defamation laws (implicating both the letter writer and the newspaper editor). There is a similarity with the Internet, where many "correspondents" decide to publish their hitherto private communications. The Committee was told by a witness that: "everybody who sends an e-mail is a content provider [3]". That may be so but it should be possible to have a legal definition of a "content provider" that differentiates between material that can be accessed via a search engine (publicly available) and material that two or even a dozen individuals share with each other through an e-mail system.

2.6 In addition to being used by millions for publishing textual and pictorial material the Internet is used for disseminating audio material. In the relatively near future (even if the experts differ in their views on when this might happen [4]) it is likely to be used to disseminate video material as well. According to the Chief Executive Officer of Progressive Networks, a US company that markets software (such as RealAudio) which allows users to "tune in", the company is launching, in 1997 software (RealVideo) which will facilitate video access on the Web. The CEO admitted in an interview with the magazine Broadcasting & Cable that the images are jerky and no threat, at this stage, to broadcasting and cable television but he added that, "given two or three more years of improvements, it may well transform the Web into the next great TV medium". [5] Closer to home, the ABA report referred to the Australian Broadcasting Corporation (ABC) as "a good example of a content provider which is planning to make existing broadcasting services available on-line". [6]

2.7 The similarity with broadcasting resides to some extent in the fact that the medium is used to reach millions at any one time but it certainly calls into question the argument that, "Different rules (or no rules) must apply because the user has to take more active steps to access on-line services than is currently the case for broadcasting". The fact that most industries and commercial enterprises consider on-line communications as anything but private communication is revealed by the growth of advertising on the Internet. Any frequently visited Web page (including this Senate Committee's) is the target of advertisers offering considerable sums of money for advertising space. Not many individuals or companies are asked to do the same in the course of their "private" telephone conversations and exchange of mail through the postal service.

2.8 In its earlier report on the regulation of on-line services in November 1995, the Committee noted that it was important then for it to be stated what was a proper standard for on-line services which would apply to current and new services as they are developed. The Committee expressed its belief that Australia must consistently apply its standards to new technologies. As its first recommendation, the Committee recommended "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 RC, R and X categories and their equivalence."

2.9 The Committee expresses its concern that progress towards this goal has indeed been slow. It believes that action should be taken to prevent the application of new technologies from dictating social policies. For example, the purveyors of hard core pornography are using and intend to use the Internet to its fullest extent in their own interests. It may be argued that Category 1 and Category 2 restricted publications are available for sale. However, these are restricted in the manner in which they can be sold and the Committee is not convinced that society ought to provide millions of other legal outlets for this type of publication which by definition is likely to cause offence to a "reasonable adult".

2.10 In addition, there is a similarity between aspects of broadcasting services (including Pay TV) and computer on-line services as convergence of the technologies is now imminent (any Web site will soon have the capacity to access – and to become a conduit for others to access – "adult videos"). The Committee believes that any legislation that is developed to regulate the on-line services industry should contain relevant provisions similar to the Broadcasting Services Act 1992.

The Committee recommends that the Commonwealth, State 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. [7] (Recommendation 1)

2.11 In Australia, publishers, advertisers and those who disseminate audio, film and video material are all subject to legislation or codes of practice which encourage them to operate within the boundaries of what the community finds an acceptable standard. The Committee believes that all users of the Internet should likewise be bound by the same requirements. Since the medium is such that it makes every user a potential publisher, advertiser, radio announcer (and sometime in the future, film or television distributor), all users will need to be educated into the responsibilities that those opportunities bring with them. The Committee recognises that the main responsibility for material published on the Internet rests with the originator of the material, the content provider.

2.12 The Committee rejects the view that Internet Service Providers (ISPs) have no responsibility whatsoever for the material that is accessed through their services. While they cannot be held responsible for material that they cannot know is being accessed through their servers, they can and should be held responsible for their actions once they are reliably informed of the site at which objectionable material is held. However, the Committee notes that the United States Communications Decency Act 1996, (which will be discussed in greater detail in Chapter 4 of this report [8]) had the following provisions to protect those Internet Service Providers (ISPs) who chose to restrict the availability of material which they believed ("in good faith") to be objectionable:

Protection for "Good Samaritan" Blocking and Screening of Offensive Material.--

(1) Treatment of publisher or speaker.--No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider".

(2) Civil liability. -- No provider or user of an interactive computer service shall be held liable on account of --

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or"

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

2.13 In the Committee's view, it is desirable that any legislation that requires ISPs to abide by a code of practice will also need to have provisions similar to the so-called "Good Samaritan" provisions of the U.S legislation.

2.14 In its November 1995 report, the Committee had recommended: "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". [9] In conducting Part 3 of this inquiry, the Committee was particularly interested in assessing the progress made in the area of codes of practice, since its last report

CODES OF PRACTICE

2.15 The Australian Broadcasting Authority also made a system of self-regulation through the development of industry codes of practice, a key recommendation of its 1996 report to the Minister for Communications and the Arts. The ABA went a step further and recommended that the codes of practice developed by the players in the Australian on-line industry be registered by the ABA.

2.16 In its submission to this inquiry, the ABA told the Committee that the on-line industry generally responded favourably to the recommendations made in its report and that:

Since the Report the ABA has been keen to build on the sound relationship which it has developed with the on-line industry and maintain the momentum for co-operative action which was developed during this period. As an indication of this relationship, a number of on-line industry associations have commenced the process of drafting codes of practice which aim to meet the requirements of the ABA. [10]

2.17 The Committee welcomes this development and would like to see the consultation process followed until the codes of practice are finalised and fully operative. A number of submissions (including the ABA's) referred the Committee to Australian draft codes of practice currently posted on the Internet and inviting comments from on-line users. These included codes from:

INTIAA (Internet Industry Association of Australia) http://www.intiaa.asn.au/codeV2.htm
CAUDIT (Committee of Australian University Directors of Information Technology) - http://www.anu.edu.au/people/Roger.Clarke/CAUDIT/Code.html
West Australian Internet Association http://www.waia.asn.au/Documents/CodeofConduct.html
South Australian Internet Association
Tasmanian Internet Association and
The Eros Foundation

2.18 Each of the codes are at a different stages of development and some show that the issues raised by the introduction of codes of practice have been thoroughly canvassed among the members of the organisation concerned while in the case of the Eros Foundation for example, the code consists of nothing more than a statement of the Office of Film and Literature Classification (OFLC) Classification Guidelines.

2.19 The first submission received during this inquiry came from CAUDIT which submitted its Draft Code of Practice. The Committee heard from the CAUDIT witnesses at its public hearing in Brisbane that representatives from all Australian universities participated in the consultation process leading to the Code of Practice being drafted.

2.20 CAUDIT's Executive Officer told the Committee that his members see the draft code:

as a basis for universities to develop their own codes of practice. It is not intended to be applied across the university sector in exactly the form that it appears on the web at the moment. It has to be adapted by each university to suit its own circumstances, its own local legislative state requirements and, of course, its own active statutes. [11]

The Committee was also told by CAUDIT that at least one university has had the complaints procedures that it had developed under its code of practice tested and that they had been proved to work satisfactorily. [12]

2.21 The Committee commends CAUDIT's initiatives in this area and is of the view that the approach that it has adopted to the code of practice issue could provide a useful model to the education sector as well as to other industries and professional associations. There are advantages in a flexible approach whereby a draft code of practice is developed to provide a generic pattern from which each member organisation can build the code of practice that best meets its particular needs at the local level.

2.22 The Western Australian Internet Association included its code of conduct with its submission. The code aims at simplicity but is quite clear in relation to a commitment from member service providers not to:

(a) Knowingly permit those parts of my system under my control to have, publicly available for downloading, files which infringe copyright, or contain unlawful material. Provided that the provision of cache, mailbox, or directory usage to users shall not constitute permission to misuse such facilities.

(b) Knowingly permit a user to engage in criminal activity using access to my system, provided that such activity is identified as criminal by competent law enforcement authorities. [13]

2.23 A number of submissions referred to the Internet Industry Association of Australia's (INTIAA) draft Industry Code of Practice as an example of a code drafted after wide consultation in the on-line community. Telstra's subsidiaries, Telstra Multimedia and On Australia for example have been involved with the development of the INTIAA draft code and Telstra indicated its support for the code.The INTIAA Code has attempted to be very comprehensive and it addresses some of the more difficult issues facing the on-line industry in the area of content regulation including the need for "Code Subscribers" to operate within the National Classification Code. ("Code Subscribers" are described in the draft code as: "each member of INTIAA, and each person who has been approved by the Administrative Council to use the Code Compliance Symbol" [14]). Accordingly, the draft Code states:

Code Subscribers who become aware of an instance whereby content that is or would be rated "RC" in accordance with the National Classification Code... is or has been placed on the Internet, obtained through the Internet or transmitted using the Internet, and remains at a Web Site or other content database which is located at an identifiable Web Site or other content database within Australia it will use reasonable efforts to inform the owner and/or controller or apparent owner and /or controller of that Web Site or other content database of the presence of such material. [15]

2.25 In relation to material that is legally available in the Territories and not in the States and to material that is available to adults but not to minors, the draft Code states:

Code Subscriber Content providers will ensure that services which provide content that is or would be rated "R" or "X" ("X" is RC in the States of Australia (not the Territories), accordingly this provision does not apply to "X" material made available by a Code Subscriber Content Provider located in a State of Australia) in accordance with the National Classification Code are:

(a) segregated and have clearly identifiable signatures which can be recognised by network management filters;

(b) accompanied by suitable on screen warnings on a Web Page which appears to the user before the content can be viewed; and

2.26 The draft code also attempts to address the difficult issue of age verification:

Code Subscriber ISPs will:

(a) not knowingly provide unrestricted access to the Internet to users under the age of 18 years without the written permission of the user's parent or guardian.

(b) request that new users confirm that they are 18 years of age or over and that access to the internet will be supervised by a person over the age of 18 when the service is used by a person under the age of 18

(c) take reasonable steps to verify the age of each user by requiring each new user to confirm on-line that they are 18 years of age or older. [17]

2.27 Those extracts from the INTIAA Draft Code are quoted above to illustrate the complexities in developing codes that address difficult issues such as the placing on the Internet of material which has been given or is likely to be given a Restricted category (R or X) or be Refused Classification (RC) under the National Classification Code and the corollary need for age verification procedures.

2.28 While some submissions indicated that they were supportive of the INTIAA draft code, that code has also been strongly criticised by others, including Electronic Frontiers Australia (EFA). EFA's submission stated: "It seems unlikely that many service providers will actually accept such codes." [18] In a critique of INTIAA's second draft code, posted on the Internet at http://www.efa.org.au/Publish/efareb1.html, EFA states that it finds the draft code "unnecessarily bureaucratic and censorious" and calls for the redrafting of many of the provisions of the code including a number of those dealing with "RC" material.

2.29 The INTIAA draft code is recognised to be a "draft", and robust criticism and positive suggestions from other computer industry organisations, users and the public can only assist in the production of a more useful final document. In his evidence to the Committee, the Australian Computer Society's (ACS) representative also questioned the relevance of the National Classification Code to material that is accessed through on-line services. He argued that classification according to the National Code is based on the prerequisite that someone has had "the opportunity to preconsider the material at some leisure in relative terms, form a view about it, put a classification on it... You can't do that in on-line real time without looking at it all." [19]

2.30 The above statement assumes that the National Classification Code can only be relevant to the on-line environment if all on-line material is evaluated against it. The fact is that by the nature of its existence and its application to material off-line, the National Classification Code has an impact on the Internet in Australia and is likely to have a greater impact when convergence of telecommunications technologies is more advanced. It is unlikely that the Australian community will tolerate a situation where any material that is Refused Classification (and therefore refused distribution through other media) is placed on the Internet for distribution.

2.31 INTIAA is to be commended for seeking to come to grips in its draft code of practice with difficult issues such as the interface between the National Classification Code and material placed on the Internet. In order to be recognised as trustworthy and workable, a code of practice must address the issue of how the National Classification Code is to interact with the distribution (including transmission) of "objectionable" material on the Internet. This cannot be avoided since those States and the Territory that have enacted legislation to date, to cover on-line services have included material Refused Classification (RC) in their definition of "objectionable material" (in Victoria's case, the reference is to computer games that are classified as RC).

2.32 INTIAA's draft code recognises this fact by confronting and seeking solutions to those difficult issues. In saying this, the Committee is neither advocating that the OFLC should attempt the clearly impossible task of classifying all material on the Internet nor is it suggesting that the OFLC guidelines be applied by untrained personnel to material on the Internet. The Committee believes that the use of the PICS infrastructure could assist any Australian taskforce set up to work towards a solution in this area. The Committee will return to this issue in Chapter 3 of this report.

2.33 In its critique of the INTIAA code, EFA makes much of the fact that the INTIAA Code Subscribers would not be in a position to know what "would be" refused classification, that is rated "RC". While this is so in a literal sense, the law operates in such a way that not "knowing" whether one is breaking it is no defence for anyone accused of a breach. Internet content providers (or in this case subscribers to a particular code) are not singled out for this treatment. This is the way the law operates for everyone in the land and in every domain. If RC material cannot be legally advertised and distributed through any other media, then it should not be legal to advertise and distribute via on-line services. Those who do distribute material that could fall within that category (if the National Classification Code guidelines were applied to it) are doing so at their own risk.

COMPLAINTS HANDLING PROCEDURES

2.34 In any industry Code of Practice, complaints procedures must be reasonably simple to follow and be seen to be acted upon if they are to be trusted by the client community. The INTIAA draft code's mechanism for handling difficulties and complaints is clearly set out (see Appendix 6) and appear to be equally simple for the complainant and the body to which the complaint is made. Ultimately, the effectiveness of any such mechanism is only known after it has been tested. The Association of Heads of Independent Schools of Australia (AHISA) called for the establishment of an independent complaints handling body to deal with situations of conflict between service providers and consumers. Its representative told the Committee:

Whilst industry self-regulation is very important, there is a role to be played by someone or a group of people who do not appear to have any vested interest in one aspect of the complaint or another...it has to stand above any particular group of interests. I believe that gives confidence to the community. [20]

2.36 The Committee agrees that such an approach would enhance the community's (and particularly parent's) confidence in the on-line industry's willingness to listen to their concerns and to deal seriously with their complaints. The Committee notes that other groups also support the establishment of an independent complaints handling body: submissions in response to the joint Department of Communications and the Arts and the Attorney-General's Department consultation paper in June 1995 indicated broad support for this approach.

2.37 The ACS is one organisation that supported the establishment of an independent complaints handling body. ACS's preferred model for a complaints handling body is the one suggested by the Senate Committee in recommendation 7 (b) of its 1995 Report, Part 2. The model is that of the Telephone Information Services Standards Council (TISSC) which remains the preferred model of the Committee, as recommended in its report on Part 2 of this inquiry [21] and was also supported by the OFLC in its submission to the ABA's Investigation into the content of on-line services. [22]

The Committee recommends that an independent complaints handling body be established under the purview of the ABA or other appropriate government body, based on the model provided by the Telephone Information Services Standards Council (TISSC), to deal with complaints from users of computer on-line services. (Recommendation 2)

2.38 ACS witnesses told the Committee that the Society had not developed a specific code of practice for on-line users because it has had a Code of Ethics in place for some 40 years and that, in the ACS's view, its Code of Ethics adequately fulfils the same purpose as the various draft codes of practice currently being circulated.

2.39 Nevertheless, the ACS submission to the Committee indicates that it has given due consideration what should be included in a code of practice and how it should operate. In ACS's view, a code of practice should distinguish "between services which are private in nature and those containing material which is available to the public" and should only apply to material that is publicly available and not to material such as "email messages or listservers to which users have to subscribe (and can easily unsubscribe)". [23]

2.40 ACS's preferred option was for "a single comprehensive code" rather than a variety of codes sharing a number of common features. It recognised that a single code would impact in different ways upon different industry participants". [24] The ACS submission also suggested the establishment of an 'Online Standards Forum' which would be responsible for developing the proposed single code. The Forum would draw its members from service providers, content providers, users and other interested parties.

2.41 The Australian Information Industry Association (AIIA), while cautioning against any single association and industry group claiming to "represent the Internet industry" [25] has been involved in the consultation process leading to the development of the INTIAA draft code and, like the ACS, AIIA sees the adoption of a single code as the most sensible approach.

2.42 The Committee recognises the diversity of the computer on-line industry and recognises also that diverse professional groups make use of the variety of on-line services on offer. Each group and association may find it useful to have its own particular code of conduct. It seems imperative, however, for them all to agree on and abide by a set of principles, incorporated into a single code so that self- regulation will be a workable proposition.

2.43 The Committee believes that self-regulation of the on-line services industry will work best if it is complemented by legislation that requires participants in the on-line industry to develop and to abide by registered codes of practice.

2.44 In the Committee's view the requirement for codes of practice to be developed should be enshrined in legislation in a similar way to the requirements in sections 123 to 128 and sections 141 and 142 of the Broadcasting Services Act 1992. The Committee supports the imposition of fines on participants in the on-line industry for breaches of the industry code of practice similar to the penalty system for broadcasting licensees who breach their code of practice. The Committee believes that the Broadcasting Services Act 1992 provides a useful model for legislating in the area of on-line services because of the possibility for persons disseminating information, entertainment and documentation to reach millions through the use of those services.

The Committee recommends that the Minister for Communications and the Arts introduce legislation, modelled on the Broadcasting Services Act 1992 to require participants in the on-line industry to develop codes of practice which address certain basic principles to be formulated in consultation with participants in the on-line industry, to abide by them and to require those codes of practice to be registered with an appropriate body to be determined in the legislation. (Recommendation 3)

The Committee recommends that the legislation governing the registration of codes of practice should include provisions for financial penalties (of up to $100,000) to be imposed for breaches of those codes of practice. (Recommendation 4)

The Committee recommends further that the legislation should contain provisions designed to protect from prosecution, those Internet Service Providers who choose, in good faith, to restrict access to material that while not illegal, could cause offence. (Recommendation 5)

2.45 The difficulties of developing adequate legislation to cope with the on-line environment have been well publicised indeed (partly because the Internet is such a powerful medium for reaching millions). Those who oppose any form of regulation stress the two-way communication aspect of the Net, but while it is a medium for private communication between individuals, it is obviously also a medium for world wide publicity. The Committee will return to this aspect of the Internet later in this report.

2.46 The proposition that those who wish to operate outside the confines of national and international law should be free to do so in cyberspace appears to be common enough overseas as well as in Australia: The United Kingdom's computer industry's proposal for addressing illegal material, including child pornography on the Internet (R3- Safety Net) has found it necessary to have as its first clearly stated principle:

The Internet is not a Legal Vacuum

In general, the law applies to activities on the Internet as it does to activity not on the Internet. If something is illegal "off-line" it will also be illegal "on-line" and vice versa. [26]

2.47 The Senate Committee made it clear during its public hearings [27] that while views may differ as to what constitutes "unacceptable" or "objectionable" (in a non-legal sense) material for children or for some adults, there is material that is "illegal" to posses or to distribute in one form or another. That includes child pornography which is illegal for both adults and minors to possess (and to transmit via the telecommunications means currently available) and material linked to criminal (including terrorist) activities. The Committee rejects the argument that, as material of that nature forms only a small part of the information to be found on-line, it should be ignored. Material of that type is, fortunately, only a small fraction of the material that is circulated via other telecommunications means in society but recognition of that fact has never made the material legal.

2.48 The issue here is not one of censorship but of the need for every industry to operate within the law just as every individual in every society is bound by the laws of that society. It is obvious that some choose to break those laws but, if they do, they have to face the consequences of their deliberate actions. There is no reason why this principle should not apply to on-line services and on-line users, in spite of the very obvious difficulties of achieving compliance with it.

2.49 It is an offence under the Classification laws of all the States and Territories in Australia to make certain material available to minors. Material of that nature is currently quite easily accessible to a minor on the Internet. The words "quite easily accessible" are used advisedly here. The standard argument of those who vigorously oppose any regulation (even self-regulation through industry codes of practice) of the Internet argue that no one is exposed to obscene images on the Net unless they wish to be. The Committee recognises that that is mostly the case for all adults who access the World Wide Web in the privacy of their homes.

2.50 Almost all the commercial bodies (both local and international) that place on the Web, material that is variously described as "adult material" or "sexually oriented material" or material relating to the "adult entertainment and service industry" place warnings before the material can be accessed. The same cannot be said of Usenet newsgroup files and Internet Relay Chats (IRCs) where "Objectionable material" is more prevalent than on the Web and where there are no advisory warnings. Although there are many cases where an address and credit card details must be given before being granted access to explicit material, the "free" advertising of the material is very detailed, explicit and easily accessible to minors.

2.51 The sites that carry warnings employ a range of approaches from:

This site contains written and visual material dealing frankly with censorship and the adult and entertainment industry in Australia. If you are under 18 years of age, or are likely to be offended by such matters, or are located in a country or state where such material is illegal, do not go beyond this page. (Eros Foundation site)

to warnings such as:

Welcome! If you are not of legal age or are offended by adult material, Exit here

and:

You are entering a site that contains adult-only material. Do you swear that you are 21 or older?........Click OK or Cancel

Other warnings are more detailed and seek to obtain a number of undertakings from the potential viewers of the material, including that they will not make it available to a minor and that they are themselves wholly liable for any "false disclosures" in regard to their true status.

2.52 Warnings do not constitute a safeguard for children and the reality is that reliable age verification procedures are non-existent on the Internet. Sites which contain objectionable material and those that contain material unsuitable for children and minors can be accessed through a search engine by using words that form part of everyone's daily vocabulary. Once the site has been accessed, most ten year olds would seize the opportunity to click on a button to say "OK, I am 18 or I am 21". Few children would have any understanding of the consequences of their act in this context or be aware of the existence of the type of material that the "OK" would give them access to.

2.53 In a similar way, those who access on-line services in public places (such as public libraries) have little protection from material which they do not wish to see. There is anecdotal evidence that material of an objectionable nature is left displayed on a screen more often than simple coincidence would allow. When users click on the screen, they are confronted (without warnings) with material that many find offensive. The Universities Directors of Information Technology are one body which have addressed this issue in their codes of conduct and the Committee was told that of at least one instance where a University applied its code of conduct to inappropriate use of access to the Internet through that university's system. The student concerned lost access to the Internet at University as a result of an incident where he had left on a computer screen material offensive to other students. [28]

2.54 The Committee is concerned that children are not protected from unsuitable material if it is distributed, displayed or delivered on-line although there are strict regulations that prevent it from being distributed to them through any other means. The Committee is mindful that the first principle of the National Classification Code, which is the schedule to the Commonwealth Classification (Publications, Films and Computer Games) Act 1995 is that:

(a) adults should be able to read, hear and see what they want;

However, that principle is followed by equally important principles against which it must be balanced:

(b) minors should be protected from material likely to harm or disturb them;

(d) the need to take account of community concerns about:

(i) depictions that condone or incite violence, particularly sexual violence; and

(ii) the portrayal of persons in a demeaning manner. [29]

2.55 In the Committee's view, any Commonwealth legislation requiring the development and adoption of codes of practice by the on-line industry must specify that Internet Service providers will put in place sound procedures for age verification. The Committee acknowledges that notwithstanding the implementation of recommendation 1, certain material which is or is likely to be in the restricted category could legally be made available through on-line services . Those who make this material available and those who provide access to them must be required to ask for a pin number which can only be obtained by an adult (such as a number linked to a driving licence).

The Committee recommends that legislation developed as per recommendation 3 above should make it mandatory for those who make available restricted material through on-line services to require a pin number (which will be available only on production of a driving licence or other proof of age) before granting the potential user access to such material. (Recommendation 6)

The Committee recommends that the Minister for Communications and the Arts direct the ABA to investigate the development of reliable age verification procedures for accessing material not suitable for children through on-line services. (Recommendation 7)

2.56 It is essential that all States and Territories in Australia extend to children and to those members of the community who wish to avail themselves of it, the same degree of protection from unsuitable material and material which may cause offence, on-line as they have from material distributed by other means. This will be best achieved by state and territory legislation that defines which type of material it is legal to transmit through on-line services and which type is illegal. Uniform State and Territory legislation would also ensure that "objectionable material" is clearly defined as is now the case in the legislation of the three States and Territory which have passed legislation to cover on-line services. The definition could then be included in the codes of practice as they are developed so that subscribers to the various Codes would be clear about what type of material was concerned. In addition, Code subscribers could undertake to display the definition for their clients.

STATE LEGISLATION

2.58 Victoria, Western Australia and the Northern Territory have enacted legislation in the past two 18 months to specifically address the transmission of material through computer on-line services. The legislation does not seek to make carriers of the information in any way responsible for the content they transmit and this is recognised as the only sensible approach by the Committee and was also recognised in submissions. [30] Draft legislation developed in April 1996 and submitted by the NSW Attorney-General to a code of practice the Standing Committee of Attorney-Generals was rejected by SCAGs but not before a leaked copy of the legislation had been made available on the Internet. The NSW draft legislation disturbed the on-line services industry for allegedly being too draconian and unworkable.

2.59 In very broad terms, all three states make it an offence to

transmit objectionable material;
transmit to minors material unsuitable for minors;
advertise that objectionable material is available for transmission.

2.60 Western Australia and the Northern Territory [31] list offences under their acts thus:

(1) A person must not use a computer service to —

(a) transmit an article knowing it to be objectionable material;

(b) obtain possession of an article knowing it to be objectionable material;

(d) advertise that objectionable material is available for transmission; or

(e) request the transmission of objectionable material knowing it to be objectionable material.

and:

(1) A person must not (shall not) use a computer service to transmit restricted material to a minor...

(2) A person must not (shall not) use a computer service to make restricted material available to a minor...

2.61 Victoria's amended Classification Act [32] has the following provisions:

(1) A person must not use an on-line information service to publish or transmit, or make available for transmission, objectionable material. (section 57 (1))

(1) A person must not use an on-line information service to publish or transmit, or make available for transmission, to a minor material unsuitable for minors of any age. (section 58 (1))

A person must not—

(a) publish an advertisement or notice; or

(b) transmit, or make available for transmission, on an on-line information service an advertisement or notice; or

(c) knowingly allow an on-line information service to be used for publishing or transmitting, or making available for transmission, an advertisement or notice —

that objectionable material is available for on-line computer access. (section 59)

2.62 There are some important differences between the way in which the Victorian legislation on the one hand and the Western Australian and the Northern Territory legislation on the other, deal with the incidence of the burden of proof on the prosecution and the defence in court proceedings. The definitions of "objectionable material" used in all three acts is at Appendix 4. Although there is some common ground in the definitions, Victoria's differs slightly from the other two who have adopted the same definition.

2.63 Both Western Australia and the Northern Territory make it an offence to use computer services to:

obtain possession of material knowing it to be objectionable material;
request the transmission of objectionable material.

Both have also made compliance with codes of practice a feature of their regulatory approach by making it a defence to prosecution under certain sections of their Act to prove that the defendant "complied with a code of practice".

2.64 The Committee was told by the Western Australian Internet Association that they, "were consulted very comprehensively by the WA government" [33] as it prepared its legislation and the association appeared to be generally supportive of the WA approach. In general however, submitters to the Committee were critical of the legislative attempts to date. The Communications Law Centre (CLC) was among submitters that argued that new State legislation was unnecessary since existing legislation was sufficient to deal with the transmission of illegal material (including child pornography) on the Internet. Electronic Frontiers Australia (EFA) also made this point in its submission and referred to Section 85ZE of the (Commonwealth) Crimes Act 1914 [34]stating that no further legislation was needed.

2.65 Section 85ZE of the (Commonwealth) Crimes Act 1914 states 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.

2.66 The Committee rejects the view that the Crimes Act 1914 is all that is needed to offer proper protection to minors and to deal with all the legal issues in this complex area. While that act would enable any law enforcement body to deal with the issue of child pornography, it is not certain what definition of "offensive" would apply leaving the issue open to wide interpretation. That provision of the Act is at best, as one witness to the Committee said, "a bit of a blunt instrument" [35] and does not define in any detail what is meant by "use... in such a way as would be regarded ...as being offensive".

2.67 If every State and Territory in Australia has classification laws which control the distribution of certain material, it is because the majority of the population do not wish to be exposed to material that depict acts of a demeaning nature even if those depictions are not strictly speaking "illegal". At present, the Internet is a convenient way for some to by-pass those laws since it is impossible to require any one regulatory body to classify all the material on the Net in the way that printed matter, films, videos and computer games are by the Office of Film and Literature Classification (OFLC).

2.68 Another concern revealed in submissions was of possible confusion for content providers arising out of different State and Commonwealth legislation. Telstra was among those and was specifically concerned with the possible negative effects on the industry of conflicting Commonwealth and State legislation and of the lack of uniformity in State legislation. Telstra also had reservations about aspects of legislation introduced in some States:

In Telstra's view, legislation enacted by a number of State and Territory governments is unworkable and onerous...The key concern with the NSW draft legislation, [36] and the similar Western Australian and Northern Territory legislation which has been enacted is that they essentially create a strict liability offence, placing the onus on the ISP to establish a defence...

The Victorian legislation is different in that the offence is that of knowingly creating, publishing, transmitting or making available on-line objectionable material or material unsuitable for minors, the onus being upon the prosecution to prove knowledge... [37]

2.69 Telstra considered that the Victorian approach was "more acceptable" to the industry. Like Telstra, the Communications Law Centre (CLC) also expressed concern about the different State legislation: "Separate state legislation provides a wholly unfortunate and confusing intervention into regulation of content whose defining feature is its global accessibility". [38]

2.70 The concerns expressed about different State legislation are understandable and the Committee is strongly supportive of a uniform approach where all the States and Territories enact legislation with similar provisions. If legislative uniformity was achieved in this area, all Australian Service Providers could be required to ensure that all those who access material and provide content through their services are aware that such legislation exists in all States and Territories and of the possible implications.

The Committee recommends that all States and Territories amend their Classification and/or Censorship legislation to make it an offence to transmit objectionable material and to cover the transmission of material unsuitable for minors through computer on-line services so that all States and Territories would have legislation that is uniform according to an agreement to be reached by the On-Line Government Council, and adopt a standard definition of the expression: "objectionable material". (Recommendation 8)

2.71 Once all States and Territories have legislation in place which address the issue of transmission of material through computer on-line services, it would be possible for their police forces to address the issue of illegal activities in cyberspace in a more material effective way. The Committee is aware that the sheer volume of material makes detection difficult but until more sophisticated software is developed, the Committee believes that random audits of suspected on-line sites should be carried out by designated units in State and Territory police forces.

The Committee recommends that, once all States and Territories have enacted legislation as per recommendation 8 above, designated units in State and Territory police forces should conduct random audits of material on-line for illegal activities.

(Recommendation 9)

2.72 The Committee understands that the new On-Line Government Council is committed to achieving a common approach. According to the Northern Territory submission, the "Censorship Ministers have agreed that the Commonwealth will regulate Internet Service Providers (ISPs) and the States and Territories will regulate content providers." [39] The Committee was also told that this decision accounts partly for the delay in Commonwealth legislation in this area, because:

the roles of the players can change from one moment to the next. At one moment a person who is providing purely access and is an access provider in terms of that economic community document, at the next moment can be hosting services and be like a book store almost and at the next moment can be providing content of their own. [40]

2.73 The Committee does not underestimate the complexity of the task facing both policy makers and legislators in this area. However, it ought to be possible to draft complementary legislation that covers any user of the Internet in their specific (and alternate) roles as recipient, content provider and access provider so that every eventuality is covered. In the event of a person being both a user and a content provider, it would be in that person's role as content provider that a breach would be pursued if one has occurred.

2.74 Likewise it should be possible for the legislation to make a person's responsibilities as access provider clear (in relation to abiding by registered codes of practice) but apply the law regulating content providers to that person when they assume the role of content provider. The States and Territories would only pursue illegal activities by content providers and the Commonwealth by service or "access" providers.

2.75 While the Committee is strongly supportive of the simplest possible legislative approach, it rejects the suggestion that nothing can be done to address the problems posed by what the technology makes possible in this area. In a federal system such as Australia's the possibility often arises that one individual will breach the laws administered by two different levels of government (State/Territory or Commonwealth).

2.76 The Committee believes that rather than delaying the drafting of appropriate legislation in this complex area, the approach should be to take the necessary legislative measures and at the same time launch an education campaign for on-line users and the general public. This was strongly supported by a number of those who made submissions to the ABA inquiry last year, including Optus Vision and the Australian Consumers' Association.

2.77 The enactment of any legislation aimed at regulating on-line services should be accompanied by an on-line advertising campaign clearly telling on-line users that they are governed by both Commonwealth and State and Territory legislation and that they have different responsibilities in the various roles they assume on-line, be it as recipient of information, content provider or access provider.

The Committee recommends that the On-Line Ministerial Council agree to commit the Commonwealth and States to funding an on-line advertising campaign to accompany the implementation of any regulatory measures adopted by the Council and the Standing Committee of Attorney-Generals. The campaign must provide information for Internet users to make them aware of existing legislation and their legal obligations. (Recommendation 10)

2.78 The Committee was told that the Standing Committee of Attorney-Generals are still working on model legislation. It is to be hoped that, once agreement is reached on which model will apply, those States that have already passed legislation will amend their legislation so that uniformity of legislation can be achieved. The Northern Territory government has indicated to the Committee its willingness to amend its legislation once a model is adopted. [41]

2.79 The Committee recognises that legislative measures taken locally can only address part of the problem. Most of the objectionable material available on the Internet originates from outside Australia. To be truly effective those measures must be linked to continuing efforts at an international level to ensure that those who are engaged in the distribution of child pornography and who distribute objectionable material to minors can be prosecuted in the countries in which they are based. The need for international cooperation in the area of on-line services is being recognised by various international bodies such as the Organisation for Economic Co-operation and Development (OECD) member countries and UNESCO. The Committee will return to this issue in Chapter 4 of this report.

Footnotes

[1] Tebbutt, Dan, States to Censor On-Line Services, PC Week Australia, 13 December 1995, p.8

[2] Evidence, p.276 (Mr Argy)

[3] Evidence, p.273 (Mr Argy)

[4] Evidence, p.254 (Mr Stewart)

[5] Jessell, H.A & Albiniak, P. Progressive Networks' Glaser, First Audio, Now Video, Broadcasting & Cable, February 10 1997, p.27

[6] Australian Broadcasting Authority, Investigation into the content of on-line services, report to the Minister for Communications and the Arts, ABA, Sydney, July 1996.

[7] The National Classification Code is a schedule to the Commonwealth Classification (Publications, Films and Computer Games) Act 1995

[8] The main provisions of that Act have been found by a Pennsylvanian District Court to be unconstitutional, a judgement that is currently being appealed against by the U.S Attorney-General.

[9] Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies, Report on Regulation of Computer On-Line Services, Part 2, Nov.1995, p. iv

[10] Australian Broadcasting Authority, Submission No 45 p. 8

[11] Evidence, p. 183 (Mr Hunter)

[12] Evidence, p. 186 (Ms Olde)

[13] Submission No 5, (WA Internet Assoc.)

[14] INTIAA Second Draft Code of Practice

[15] INTIAA Second Draft Code of Practice, Section 7, paragraph 8

[16] INTIAA Second Draft Code of Practice, Section 10, paragraph 2

[17] INTIAA Second Draft Code of Practice, Section 13, paragraph 1

[18] Submission No 6, (EFA)

[19] Evidence, p. 277 (Mr Argy)

[20] Evidence, p. 194 (Mrs Hauff)

[21] Appendix 1 (Recommendation 7 )

[22] Australian Broadcasting Authority's Investigation into the content of on-line services, July 1996, p. 144

[23] Submission No 44 (Australian Computer Society)

[24] As above

[25] Submission No 3 (AIIA)

[26] ISPA (Internet Service Providers Association) & LINX (London Internet Exchange) R3 Safety-Net, Rating, Reporting, Responsibility, For Child Pornography & Illegal Material on the Internet

[27] Evidence, pp. 205-205 and p 218 (Senator the Hon. M. Reynolds)

[28] Evidence, p. 186 (Ms Olde)

[29] National Classification Code: Schedule to the Classification (Publications, Films and Computer Games) Act 1995

[30] Submission No 9 (AHISA)

[31] Note: Western Australia, the Censorship Act 1996, sections 101 & 102 and the Northern Territory, the Classification of Publications, Film and Computer Games Act 1995, sections 50Z & 50ZA

[32] Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Vic)

[33] Evidence, p. 286 (Mr Heitmann)

[34] Submission No 6 (EFA)

[35] Evidence, p.258 (Ms Johnson)

[36] Note: The Committee notes that that draft was not accepted as a model for nationwide legislation by the Standing Committee of Attorneys-General when they met to consider it on 10 July 1996.

[37] Submission No 10 (Telstra)

[38] Submission No 39 (Communications Law Centre)

[39] Submission No 41 (Northern Territory)

[40] Evidence, p.250 (Mr Stewart)

[41] Submission No 41 (Northern Territory)