Internet Society of Australia
A Chapter of the Internet Society
From:
The Internet Society of Australia, a Chapter of the Internet Society
ACN 076 406 801
To:
The Assistant Secretary
Online Industry and Communications Technology Branch
Department of Communications and the Arts
GPO Box 2154
CANBERRA ACT 2601
Email: online@dca.gov.au
Dear Mr Stewart
Re: Principles for a regulatory framework for online services in the
Broadcasting Services Act 1992
The Internet Society of Australia (a Chapter of the Internet Society)
appreciates the opportunity to comment on the abovementioned principles.
A detailed discussion is attached; in summary however we feel that the
proposed principles are inappropriate and unworkable because:
a) they ignore the issue of externally sourced material
b) they fail to firmly distinguish between a content provider and a
service provider
c) they seek to make service providers responsible for content
d) they provide no meaningful protections to service providers and thus
leave them open to malicious attack
e) they have the effect of applying a more censorious process to material
carried by service providers than would apply to the same material being
disseminated by more traditional means.
The end result of implementing these principles in legislation can only be a
severe chilling of legitimate free speech and a literally impossible
regulatory burden on service providers; together, a disaster for the growing
Australian online community, for the Australian information economy and for
ordinary Australians.
We hope the attached comments will be of assistance in framing a more
realistic and effective regulatory framework. Please do not hesitate to
contact us for more information.
Yours sincerely
Karl Auer
Vice President,
The Internet Society of Australia
15 August 1997
Executive summary
~~~~~~~~~~~~~~~~~
The proposed framework seems to derive largely from two serious
misunderstandings about the nature of online services - firstly a belief
that the same kinds of restrictions that apply to more traditional media can
be applied largely unchanged to online services, and secondly a belief that
service providers are like publishers.
The framework (taking into account also various other statements made by,
for example, Senator Alston) has as it's stated aim the balancing of
freedoms of speech and the benefits of online systems against the need "to
protect children". The proposed framework can achieve neither aim.
No legislative framework can succeed unless it is based on this simple
premise: Only a person who with specific knowledge of the material makes it
available to others can reasonably be held responsible for that material.
Service providers for the most part provide automated services. They cannot
reasonably be expected to know about the specific content of the material
their systems handle, any more than Australia Post could be expected to have
knowledge of the parcels and letters it carries. Privacy issues would
suggest that in any case service providers should not, even if they could,
inspect material without due cause.
The proposed framework cannot have any meaningful effect in terms of
protecting any group in Australian society from any particular kind of
material, because the legislation can affect only material stored on
Australian systems. The vast bulk of material, of all kinds, comes from
outside Australia.
Even to the extent that it is possible for them to detect illegal material,
service providers placed in the role of censor will naturally "cut with a
chainsaw" rather than risk the penalties associated with permitting possibly
illegal material to remain on their systems. This will inevitably reduce
freedom of expression for Australian citizens - a poor result indeed,
considering that no positive outcomes can be traded against the loss. If
service providers remove, without reference to appropriate authorities,
content they suspect is illegal, they may harm the process of bringing
illegal content providers to justice.
By imposing more restrictions and greater burdens on systems storing or
processing content in Australia, the framework is a blueprint for pushing
such systems offshore, depriving Australia of the benefits of infrastructure
and skills that accompany the operation of such systems.
We urge the Government to begin anew; to build a set of principles that
acknowledges the realities of online services, that places responsibilities
where they belong and that genuinely supports and protects Australians in
their use of these technologies.
Detailed response
~~~~~~~~~~~~~~~~~~~
In this section, each subsection is numbered for the paragraph or section in
the proposed framework which it addresses.
1 Most online services are not broadcast services. It is regrettable
that such a fundamental misconception should be enshrined in the very
title of the Act. Phrases like "transmitted through online networks"
perpetuate this misconception - almost all material accessed via online
services is deliberately selected and consciously obtained by a person
seeking that particular material.
This is a far more fine-grained process that merely selecting a
television channel or radio station, and a correspondingly greater
level of responsibility for the action rests with the person thus
choosing the material.
2 This section begs the questions, "what community standards?" and
"where is the content?"
The Internet in particular is a global medium of exchange; in that
context what possible meaning can the phrase "community standards"
have? Basing real legislation, with real penalties for real people on
such vagueness is a mistake.
Similarly, where can a complaint reasonably be lodged about material
originating in one country, stored in another and accessed in Australia?
3 The stated goal of "avoiding inhibiting the growth and development of
the online services industry by placing unreasonable regulatory
constraints..." is in direct and fundamental conflict with the measures
given in the remainder of the framework.
In particular, imposing an impossible regulatory responsibility on
service providers can have no effects other than to raise prices, drive
larger businesses offshore and small enterprises out of business.
4 We can see no particular need for codification of responsibilities of
service providers with respect to content. However, an explicit
immunity for service providers from liability related to content not
created or made available by them, would be a positive regulatory move.
In the case of material created by or made available by the service
provider, where the service provider has specific knowledge of the
nature of the material, the service provider should have the same
responsibilities as any other content provider.
5,6 We disagree that there should be any content-based regulation of online
service providers as such.
There may be scope for legislation of a general trades-practices type,
but online service providers cannot reasonably be made responsible for
content that they do not themselves create or, with knowledge of the
material, make available to others.
7,8,9 In our opinion a complaints mechanism regarding content should not
involve service providers unless they themselves are responsible for
the content. This seems to be covered by paragraph 9, but given the
current enormous disparities between what is illegal in different
states and/or federally, the task for a conscientious content provider
would seem to be onerous indeed - especially given that online services
effortlessly transcend state, federal and national borders!
That noted, we are deeply concerned by the effect of paragraph 8 and
the referenced paragraph 24(a). Together, these provisions force
service providers into the role of censor; requiring them to make
judgements about what "would" be refused classification by the OFLC,
or that "would" be illegal.
We submit that a service provider has an obligation only with respect
to material that is in fact illegal; that is, material which has
actually been classified by the OFLC or material which has actually
been declared to be illegal. In the event that material has not yet
been specifically classified, it should be up to the complainant to
seek and the relevant authorities to make a determination regarding
the material and if necessary issue a duly constituted court order
requiring the service provider to take appropriate action with respect
to the material.
In the event that the service provider then fails to comply with that
order, only then should the service provider be legally liable.
Requiring the service provider to make judgements about the nature of
content is unfair and inappropriate.
10-20 These paragraphs again miss the point that online services - the
canonical example is the Internet - can and do carry information of
literally all types. It does not make sense to exclude or include any
particular types of content, or to exclude or include particular
functions such as telephony.
If content regulation is to apply to online services, it must apply
equally to the telephone, to the postal service and so forth. It is
perhaps this point which most powerfully illustrates the folly of
attempting content regulation at the infrastructure level.
21-25 We have noted above (see the discussion of paragraphs 7,8 and 9) that
paragraph 24 would impose an impossible and inappropriate responsibility
on service providers.
We are also concerned that these paragraphs give what amounts to
sweeping powers to the ABA to create new responsibilities and new
regulations governing service providers. There so not seem to be any
controls on these powers; no avenues of appeal, avenues by which
service providers or others can influence such matters and so on.
If the ABA is to become, in effect, the primary censorship body in
Australia (not an outcome we recommend or are in any way comfortable
with), it at least needs to have heavily circumscribed and controlled
powers.
26-35 While we are not opposed to Codes of Practice as a means of providing
consumers with appropriate information and avenues of redress in a
trades practices context, we stress that Codes of Practice are not
appropriate as a means of content regulation.
We would also caution against the creation of or support of "kitchen
sink" Codes of Practice. Many service providers are very small - there
must be room within any framework for such businesses to be accommodated
without impossibly high regulatory burdens. The framework as presented
seems to allow only one code of practice.
With respect to some popular suggestions such as age verification
procedures, we also caution against the imposition of plausible but
ultimately meaningless procedures.
36,37 Many of our comments above apply to these paragraphs also. In particular
the phrase "would be" is totally unacceptable.
We are also concerned at what "means " (paragraph 26(c) might be
envisaged; while it may be possible to restrict the opening of access
accounts to minors without parental permission, it is NOT possible to
ensure that all subsequent access via such accounts is being supervised.
Service providers must not be held liable should a parent or other
person permit unsupervised access by a minor.
Labelling schemes (paragraph 36(f)) are at present very much a
developing technology. We remain dubious that such schemes can ever
have a significant effect other than as a selection method for persons
seeking particular types of information.
Paragraph 36(h) is unacceptably broad, leaving the way open to
populist and political censorship.
38-45 We find it unacceptable that the ABA should be able, without any
reference to proper due legal process, make a full and legally binding
determination with respect to content, or indeed any other component of
service provider practice. A dispute with the ABA or a dispute over the
interpretation or applicability of a "service provider rule" should
under no circumstances constitute in and of itself an offence.
Given that many service providers support the day-to-day activities of
a great many users at all levels, the impact of shutting a service
provider down could be dire indeed! Nothing less of a properly
constituted court order following appropriate due process should be
involved when such an extreme action is seen to be necessary.
The powers and sanctions mentioned in these paragraphs make a mockery
of the idea of self-regulation; as the EFA has described it, this is
"self-censorship at the point of a gun".
46-47 The roles described in these paragraphs are astonishingly wide. Not
once are avenues of appeal mentioned!
In our opinion, the role of the ABA, if it is to have one in respect
of online services, should be restricted to building policy and
providing a bridge between the online community and the needs of
Government.