Note - this was originally posted in the form of an email and usenet post, hence the poor formatting in some areas. I would encourage anyone, Australian or foreign, to email the address listed at the start of this article expressing your concerns.
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(# - I have emailed this to online@aba,gov.au and online@dca.gov.au since both addresses should be relevant. I have also posted it to the newsgroups aus.org.efa and aus.censorship and on my web site in the hope of encouraging debate and other submissions)
I would like to take this opportunity to make some comments on the proposed
Principles For A Regulatory Framework For On-Line Services In The
Broadcasting Services Act 1992
BACKGROUND
My aim in this brief section is to provide some background to me involvement with the internet.
In 1994 I became involved in the internet through my university studies. At that time the world wide web (WWW or 'web') was only a minor part of the internet. Most of my early exposure was through email, newsgroups and the occasional gopher or ftp session. I very quickly discovered that the internet was a powerful tool for communication and the expression of ideas, and indeed the explosion of the www has made this more so. In 1995 I started producing my own web pages and since they have always maintained a presence on the internet through my web pages or participation in various newsgroups and mailing lists.
One of the big advantages of the internet was that it was not subject to tight regulatory control and this allowed for a far wider diversity of opinion than one could find in any other media. There was , and still is, a strong culture of free speech and diversity operating within a developed set of etiquette. The introduction of the CDA and other censorship proposals threatens the unique freedom of expression found on the internet. Since the original CDA proposal I have become increasingly concerned by the attitude of government (both politicians and regulators) to the internet, and the apparent lack of appreciation for what the internet actually is and why can not be treated the same as t.v., radio etc.
In early 1997 I made a private submission to the Senate Select Committee on Community Standards expressing my concern over moves by government to censor the internet and highlighting the alternatives. Despite the overwhelming majority of submissions to this committee against censorship the report of the committee proposed many of the kind of draconian rules which the US Supreme Court was rejecting as impractical in its judgement in _Reno_V_ACLU_.
To this end I therefor hope that you will be more responsive to the concerns expressed by myself and other ordinary internet users. It would indeed be unfortunate if the freedoms of internet users were taken away by lawmakers and regulators attempting to impose their particular ideas of community standards on the diverse and global on-line community.
I will now therefore turn to addressing specific issues in the guidelines.
ISSUES
>2. The regulatory regime should aim to :
>
>(a) encourage on-line service providers to respect community standards
>in relation to material
>published by means of their service; and
As an objective, this is problematic in itself. The big problem is 'whose community standards?' Given the diversity of beliefs and values held by Australians it would probably be difficult to meaningfully define an Australian community standard let alone one which takes account of the diversity of values on the internet - which is a global community.
Secondly, the internet itself is it's own 'community' - the online society. I would question therefor whether it is even appropriate for any particular government to attempt to impose its own community standards on the large and diverse internet community - which values freedom of expression, privacy , and freedom of access as important standards. It therefor seems inappropriate for the Australian government to attempt to impose its standards on the on-line community, just as it would be inappropriate for the government to intervene in the internal affairs of overseas communities.
>(b) encourage the provision of means for addressing complaints about
>content published by means of
>an on-line services; and
As an objective this appears reasonable however as I will discuss later the actual means by which this is pursued is flawed.
>(c) ensure that on-line service providers place a high priority on the
>protection of minors from
>exposure to material which may be harmful to them.
Again, an acceptable ideal but the proposed methods, on the whole, are impractical and repressive.
>7. The legislation should provide for a complaints mechanism under
>which
>(a) regarding a matter set out in a code of practice, any person may
>complain initially to an on-line
>service provider, with provision for the ABA to adjudicate the complaint if
>it is not resolved by the on-line service provider;
What I am concerned about here is that this provision will encourage spurious complaints. Presently, internet users are already able to complain to ISP's about content. Many ISP's already have in place as a condition of use, rules prohibiting the use of their services for the publishing of objectionable material.
>(b) regarding breaches of the BSA or service provider rules, complaints
>may be made directly to the
>ABA.
This is of concern since this can tie ISP's time up with complaints by complainants with a particular grudge against an ISP.
>Defining "content"
>
>19. "Content" includes material transmitted in the form of
>
>(a) text;
>
>(b) data;
>
>(c) speech, music or other sounds;
>
>(d) graphics or other visual images, whether static, moving or otherwise;
>
>(e) software; and
>
>(f) such other forms of content that are determined by the Minister by
>disallowable instrument.
Something else which concerns me here is that all of the above will be subjected to the same set of rules/standards whilst off-line they would be covered by different rules with different standards.
e.g. what about text which might appear in an unrestricted magazine such as Cleo or Cosmopolitan. In print it is unrestricted yet it when it become son-line content it will be subject to much tighter rules than it would in its printed form. The same might be said for images of nudity which are available in the unrestricted versions of certain magazines - when they become on-line content are they are going to be subject to the OFLC guidelines/classification system for films and then given a higher/different rating?
Of particular concern is whether you intend to attempt to apply these rules to internet relay chat (IRC) and web based chat sites. Unlike email these are not excluded from the guidelines and do involve text (and to a lesser extent sound and graphics). Yet these are essentially conversations, the on-line equivalent of meeting a few friends at the local pub/cinema/park for a bit of a chat. IRC can also be conducted in private between individuals or groups, to the exclusion of outsiders - the virtual equivalent of a meeting behind closed doors.
It is inconceivable that the government would attempt to monitor and censor conversations at a pub or park, and there would be outrage at any attempt to censor the conversations of individuals within their own homes. Yet the guidelines will allow the virtual equivalent of this. It is not hard to imagine a scenario where some troublemaker joins a private conversation in an explicit adult chat channel, then complains to the ABA about the explicit content available in this forum and expects the ISP to take some sort of action (which of course there is basically none which can be taken due to the nature of irc).
By allowing a complaint mechanism for such broad content, a spurious complaint could cause and ISP serious problems whilst the whole situation would have been avoided by the troublemaker simply not going to the channel or by the ISP simply explaining to the troublemaker how to avoid going to such channels.
Services excluded from the definition of "on-line service"
>20. An on-line service should not include:
>
>(c) a service which only carries private or restricted distribution
>communications such as e-mail
>messages;
It is good to see that e-mail has been excluded since this is clearly a private communications. But what of the meaning of ' private or restricted distribution'. To take the example of IRC and web chat above, does this mean that all IRC and web-chat is excluded. Some argument might be put that since you must actively seek out and join even a 'public' channel or web-chat that it is a restricted distribution and therefore should be excluded. Or is it going to be that only private messages over IRC will be exempt... what then about invitation only channels?
Furthermore, what about the web in general. Again, whilst most pages are publicly accessible a user must actively seek out a page. User are rarely going to be exposed to content which they did not seek except as the by-product of wild searches on the large search engines. This point was highlighted in the case of ACLU v Reno.
>24. On-line service provider rules should include:
>
>(a) that on-line service providers not knowingly allow a person to use their
>service to publish content
>that would be refused classification under OFLC guidelines or otherwise
>be illegal under a State or
>Territory law;
The inclusion of 'knowingly' is important and therefore the framework be commended for its inclusion. However the latter part of this section is cause for concern. Does 'illegal under a state or territory law' mean that it will be an offense to publish on a web site material which is legal in the state where the ISP is located but illegal in another state? This is effectively establishing a lowest common denominator standard for publication of on-line content in Australia.
>
>(b) that an on-line service provider not use an on-line service in the
>commission of an offence against
>another Act or a State or Territory law;
See above point about lowest common denominator. Also - why was there no inclusion of 'knowingly' in this section.
>(c) that an on-line service provider comply with any standards determined
>by the ABA;
In other words this is hardly self-regulation. ISP's must comply with any standards determined by the ABA.
>(d) that an on-line service provider comply with any additional on-line
>service provider rules
>determined by ABA.
Again, so much for voluntary self regulation. This effectively means that if the ABA for some reason (perhaps political pressure from radical lobby groups) decides that the rules are not tight enough that it can step in and force ISP's to comply.
>32. The ABA may request a body or association representing a particular
>sector to develop a code of
>practice in relation to a particular matter or matters to be applicable to that
>sector.
>
>33. If the request referred to in principle 32 is not complied with within a
>specified period, the ABA
>may determine an ABA standard about the matter or matters to apply to
>the specified sector of
>service providers.
Which rather undermines the idea of voluntary codes of conduct which the government has attempted to make so much of in its public relations. This section effectively means that unless industry complies it will be forced to develop a code. If a particular industry does, perhaps for ethical or commercial reasons, decide that it does not want a code then the ABA will simply determine the standards for the industry.
>34. The ABA may determine a standard on a particular matter or matters
>where the ABA is satisfied
>that an existing code does not provide appropriate community safeguards
>on the matter. Before
>determining a standard in these circumstances, the ABA must request the
>body or association that
>developed the code to address the deficiencies in the code.
Again, if the ABA doesn't like the industry developed rules it will over-rule them and develop its own. It is not difficult to imagine a scenario where mass media or lobby group pressure on the government to 'do something' about a particular type of content will lead to a situation where the experience, wishes and technical knowledge of the on-line community will be overridden by public pressure, quite possibly from groups with minimal or biased exposure to the internet.
>35. The ABA should be required to seek public comment before
>determining a standard on a
>particular matter (see section 126 BSA); ABA determined standards are to
>be disallowable
>instruments.
At least this is something positive though clearly this will need to be reasonably well publicized on the internet. The opinion of internet users also need sot be listened to, not simply ignored as was the case of the senate select committee, where no response was made to the concerns of internet users.
>36. The BSA should set out matters to be addressed in codes of practice,
>without limiting
>the matters to be covered, subject to principle 37. The matters which may
>be covered by
>codes of practice include:
>
>(a) reasonable procedures to prevent the on-line publication of content that
>would be refused
>classification, in particular:
> (i) the removal of material that is or would be refused classification
> under OFLC guidelines or otherwise be illegal under an applicable
> State and Territory law from the on-line service provider’s system
> where the relevant on-line service provider is made aware of the
> existence of the objectionable material being hosted on their
> system; and
Again, it is encouraging to see that 'knowledge' is a requirement, so long as it is actual knowledge and not interpreted as some sort of 'ought reasonably to have known' type standard. This latter definition would certainly cause real problems and would result in ISP's spending excess amounts of time (hence raising costs to users) trying to comply with the 'reasonable standard'.
But again we have the problem of lowest common denominator. Of course this all assumes that the OFLC rules are satisfactory guidelines, when there is much debate amongst internet users suggesting perhaps they are not appropriate guidelines.
The next issue is that this once again ignores the fact that internet user are part of a global community of internet users. Material rated RC in Australia is often freely accessible in other countries. Provisions such as these will not stop Australian internet users from accessing this material but it will earn Australia a reputation amongst the on-line community as a repressive and undemocratic nation, especially among users from countries with les restrictive regimes.
>
> (ii) to encourage a service provider who is made aware of
> material that is or would be Refused Classification under OFLC
> guidelines or otherwise be illegal under an applicable State and
> Territory law hosted by another service provider to notify that
> service provider of the existence of that material;
Which effectively means making one ISP dob in another. If a user has a complaint it should be addressed firstly to the originator of the content and secondly to the ISP hosting the content.
>(b) ensuring that on-line service providers encourage content providers to
>display
>appropriate warnings on material that would be classified unsuitable for
>minors under OFLC
>guidelines;
>
This provision creates a potential minefield of problems. Firstly, it requires that ISP's understand the OFLC guidelines as they relate to the net. This is not their main function and would likely lead to increased costs as ISP's hire in outside experts in this matter.
Secondly, it requires content providers, many of whom are normal internet users, to be able to understand the OFLC guidelines. Many individuals may find they do not have the time to learn such vague and subjective guidelines leading to less content provision by Australian individuals.
The third problem relates back to these. What it material unsuitable for minors? Is it material unsuitable for minors based on print publications - i.e. I only need display a warning if I think my site will be R or greater? or will it be film guidelines.. hence perhaps requiring a warning for anything greater than PG, or will it be computer games.. where material greater than MA is totally barred? The ambiguity and confusion created by this sort of provision could lead to more warnings being present than actual content.
Finally, the requirement for warnings seems based on the assumption that users need to be warned they are about to stumble on to unsuitable material. Since user must almost always actively request particular material they will rarely view material they do not wish to view and therefore there seems no need for any sort of warning.
>c) means to ensure on-line access by minors is with parental or other
>supervisor permission;
This would be extremely difficult for ISP's to determine. Most likely it would result in ISP's only granting access to adults subject to proof of ID. It does however place a 17 year old university student in a curious position? -they could easily be living away from home and using the internet for study and research at university.. yet not be able to gain private access. The best solution would be to drop this provision totally and simply remind parents they are responsible for the childrens usage.
>d) information for content originators in relation to their responsibilities
>under relevant
>Commonwealth, State and Territory law;
See previous problems about educating users as to OFLC guidelines. This gets compounded when users are told their content has to be restricted to content acceptable in all states. Again, this is likely to lead to less content from individuals or small groups, or else content provision moving off-shore on to foreign internet services.
>e) methods for the handling and resolution of complaints from the public
>about content
>accessed on-line (including reasonable procedures to deal with
>complaints concerning
>material originating outside of Australia) or compliance with other matters
>contained in the
>code of practice;
This must surely contain one of the most absurd ideas. How do you propose ISP's deal with material originating outside their own site, let alone in another country!!! If your answer is for ISP's to block access to particular sites then this must surely be one of the most repressive forms of censorship this country has seen. Australians freedom of access to information will be severely curtailed as more and more parts of the net are blacked out by the censors. The appropriate solution would be for the offended individual to simply not view the material again or to email the content originator and their ISP.
>(f) the development of an Australian on-line labelling scheme;
Please see the previous submissions to the ABA and Senate Committee by Electronic Frontiers Australia. This provides the best explanation of the pitfalls of content rating systems, especially as proposed by the ABA.
>(g) the provision of adequate information to users concerning the
>availability, application and
>appropriate use of content filtering software;
A sensible provision on the face of it.
>(h) such other matters relating to on-line content as are of concern to the
>community.
Again, leaving room for lobby groups and vote seeking politicians to pressure for tightening of controls.
>Breaches of on-line service provider rules and codes of practice
>
>43. The legislation should provide that it is an offence to breach on-line
>service provider rules
>and that a person who continues to breach the service provider rules is
>guilty of a separate
>offence for each day the breach continues (see section 139 BSA).
A separate offence each day! This seems a little absurd. Surely once they have breached the rules once they are already liable for punishment? why exaggerate it.
>45. If the ABA is satisfied that a person is providing an on-line service
>other than in
>accordance with on-line service provider rules, the ABA should be able to
>apply to a court
>for an order requiring the on-line service to cease, or to be suspended for
>a specified period
>(it is intended that an application to a court by the ABA would only be
>made in extreme
>circumstances). The ABA should be able to seek that the court apply a
>cessation or
>suspension order to an individual or group of individuals and their
>associates or to an
>incorporated body, its directors and their associates.
This provision really gives no consideration to the extensive disruption and damage to third part is likely to be incurred. If an ISP is forced to shut down or suspend all services due to a suspected breach, this means that the providers customers will not be able to access the internet and that their web sites etc will not be accessible to other users. _If_ the ABA is determined to intimidate ISP's this way then surely it would be more sensible that the ISP simply remove the offending content until a ruling has been made. It seems absurd to 'punish' the customers of an ISP simply because the ISP breached the code, perhaps by failing to adequately address a complaint relating to warnings on a users site.
The remaining provisions on the role of the ABA are effectively all addressed by reference to earlier comments.
CONCLUSION
The internet has been hailed as one of the greatest tools for participatory mass democracy (ACLU v Reno). In both CDA judgements the pitfalls of and problems of attempting to censor the internet in this sort of manner were examined. The approach, similar to the one being taken by the ABA, was shown to not only be technically flawed and unworkable, but also a threat to free speech and communication.
The proposed framework for censoring the internet in Australia has many problems which can not be resolved by any attempt to fine tune the legislation. The best approach which could be taken is a hands off approach which respects that the internet is it's own community with its own standards and it is a matter for individuals and parents to determine viewing of internet content.
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