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Frequently Asked Questions

Note: The Australian Communications Authority and the Australian Broadcasting Authority merged on 1 July 2005 to become the Australian Communications and Media Authority.

CURRENT AT AUGUST 2002

1. Operation of the framework

       1.1 What are the main features of the new regulatory framework?
       1.2 Why isn't the current criminal law sufficient to deal with illegal online content?

2. Industry responsibilities

2.1 Are ISPs and ICHs required to censor material?
2.2 What penalties apply to ISPs and ICHs and when?
2.3 How are ISPs and ICHs protected from legal action by website operators whose content has been taken down or blocked?
2.4 Isn't it enough for an ISP to offer a 'clean' Internet service for children, and allow adults unrestricted access to the 'full' Internet?
2.5 Why does the legislation focus on ISPs and ICHs when the real responsibility lies with the people who create or transfer offensive material on the Internet and/or with the people who download it?

3. Education and awareness

3.1 Shouldn't parents take responsibility for how their children access and use the Internet?
3.2 What is NetAlert and what does it do?

4. Filtering/Blocking

4.1 Are ISPs required to install filtering software on all services?
4.2 Is the Government going to filter and/or censor material at Internet "gateways" into Australia?
4.3 Isn't it impossible to block access to overseas material?
4.4 If there are a number of ways in which blocking technologies can be circumvented how can the Government expect its legislation to have any effect?

5. Effect on individual access and use

5.1 Does the legislation apply to emails, mailing lists and chat rooms?
5.2 Does the legislation apply to unsolicited emails (spam)?
5.3 Does the legislation affect freedom of speech by inhibiting discussion of topical issues, eg. health issues, sex education, politics, religion and the like?
5.4 Doesn't the requirement on ISPs to prevent access to prohibited material raise serious privacy issues?

6. Classification of content

6.1 Who decides what is 'objectionable' material?
6.2 Does the legislation cover hate or racist material?
6.3 If there is just one objectionable page on a website, does the legislation require the entire website to be taken down?
6.4 Given the large number of potentially prohibited websites, how will the ABA be able to examine them all? 6.5 Are the ABA's decisions appellable?

7. Government approach

7.1 Why is this an issue for Government?
7.2 What right does the Government have to decide what people can or cannot access on the Internet?
7.3 If the Government is making ISPs liable for Internet traffic than why not make telecommunications carriage service providers and Australia Post liable for telephone calls and ordinary mail?
7.4 If the problem of pornography on the Internet is so big, how can the Government expect its legislation to have any effect?
7.5 Why isn't the Government doing anything about spam?
7.6 What are the States and Territories doing about this issue?

8. International Aspects

8.1 Won't the legislation damage Australia's reputation as a world leader on Internet issues?
8.2 How is the legislation consistent with Australia's international commitments, eg. The Australia-US Joint Statement on Electronic Commerce?

Acronyms

ABA--Australian Broadcasting Authority

ICH--Internet content host

ISP--Internet service provider

R--classification given to other material restricted to persons aged 18 years and over under the National Classification Code

RC--Refused Classification under the National Classification Code

X--classification given to consensual sexually explicit activity under the National Classification Code

 

1. Operation of the framework

1.1 What are the main features of the regulatory framework?

Schedule 5 of the Broadcasting Services Act 1992 (BSA) establishes a co-regulatory scheme for Internet content hosts (ICHs) and service providers (ISPs) in relation to illegal and offensive online material.

The key elements of the scheme are:

• a complaints hotline;

• the operation of industry codes of practice; and

• user-empowerment.

Complaints process

The legislation establishes a framework in which any person is able to complain to the ABA about online material they believe falls within a prohibited category. Based on the current National Classification Code, the prohibited categories for Australian hosted content are Refused Classification (RC), X, and material rated R that is not protected by adult verification procedures. For material hosted overseas, the prohibited categories are RC and X.

Under the legislation the ABA, rather than an ISP or ICH, is responsible for administering the complaints process including investigating valid complaints. If, following a complaint, the ABA decides that the content falls within a prohibited category, it can direct the relevant section/s of the industry to follow the procedures outlined in the industry codes of practice.

Information on the complaints process is available at www.aba.gov.au.

Codes of Practice www.iia.net.au

The legislation provides for the development of three industry codes of practice;

two codes outlining the obligations of ISPs and ICHs respectively, and one code dealing specifically with overseas-hosted content.

All three codes have been developed by the Internet Industry Association (IIA) in consultation with industry, the ABA, NetAlert, and interested community groups and members of the public.

All three codes were registered by the ABA on December 16 December 1999, and revised codes were registered by the ABA on 10 May 2002.

There are four key elements to the codes:

• procedures to be followed by Internet service providers and content hosts when notified of prohibited Australian-hosted content by the ABA;
• procedures to be followed by the ABA and the suppliers of scheduled filters in relation to prohibited overseas-hosted content;
• additional protection of minors by ensuring that persons under the age of 18 years cannot open an Internet access account without the consent of a parent, teacher or other responsible adult; and
• the facilitation of end-user empowerment.

Suggestions concerning the codes can be made at any time and should be directed to the IIA, PO Box 3986, Manuka ACT 2603 or info@iia.net.au.

 

User-empowerment

The Government believes that educating and advising the public about ways in which they can manage Internet usage, including by their children, must be a critical part of any effective framework. To this end the Government established the community advisory body NetAlert (link to www.netalert.net.au), formerly known as 'NetWatch', to run national awareness campaigns to promote a safer Internet experience for young people and research access management technologies.

1.2 Why isn't the current criminal law sufficient to deal with illegal online content?

Existing criminal laws apply to RC and X rated materials published, sold or hired using the Internet, where the resulting materials are expressed in hard-copy form, or stored in a disk-file. It was uncertain, however, whether the acts of publishing or transmitting materials over the Internet, accessing and/or storing materials in non-persistent memory, would be an offence.

Section 85ZE of the Crimes Act 1914 makes it an offence to knowingly or recklessly use a carriage service in a manner which a reasonable adult would find offensive. Some prosecutions in relation to online content have been initiated under section 85ZE. However, successful prosecutions under this provision have been on the basis of guilty pleas and therefore its application to online services has not been fully tested by a court.

2. Industry responsibilities

2.1 Are ISPs and ICHs required to censor material?

ISPs and ICHs are not required to actively review, monitor or engage in universal blocking of content. As a complaints based scheme the only material that will be blocked as a result of the legislation will be material that has been the subject of a complaint and been found by the ABA to fall within a prohibited category. This approach recognises that service providers and content hosts are often not in a position to be aware of all material accessed through their service, and cannot reasonably be held responsible for material unless it is brought to their attention.

2.2 What penalties apply to ISPs and ICHs and when?

The Government anticipates that there will be a high degree of industry self-regulation based on voluntary compliance with the codes. However, the legislation provides an effective legal regime should sections of industry choose not to abide by the codes.

Contravention of the codes, such as failing to comply with an ABA an access-prevention or take-down notice, is a criminal offence and a continuing offence for each day the contravention continues. Penalties are $5 500 per day for an individual and $27 500 per day for a corporation. These levels are consistent with fines for offences by narrowcasters in the Broadcasting Services Act 1992 and with Commonwealth criminal law policy in relation to monetary levels for fines.

In cases of serious, flagrant or recurring breaches, the ABA can apply to the Federal Court for an order that an ISP cease providing a service or an ICH cease hosting content.

2.3 How will ISPs and ICHs be protected from legal action by website operators whose content has been taken down or blocked?

The legislation protects ISPs and ICHs from civil proceedings (for example, for breach of contract or defamation) in respect of anything they have done in compliance with an industry code or standard, or an access-prevention notice.

2.4 Isn't it enough for an ISP to offer a 'clean' Internet service for children, and allow adults unrestricted access to the 'full' Internet?

The regulatory framework is based on the premise that what is illegal offline should also be illegal online. Providing a 'clean' service for children would not address concerns about general access to content that would be illegal or restricted in other media.

Under the legislation, ISPs will be exempted from ABA access-prevention notices in relation to overseas-hosted content for specified end users where an effective alternative arrangement is in place to prevent access. Schedule one of the codes lists those products and services that meet the effective alternative arrangement requirements.

• ISPs are required to provide to their customers, on a cost-recovery basis, one or more of the scheduled filters to their customers
• Under the code the ABA is responsible for notifying the suppliers of scheduled filters of prohibited overseas content that has been the subject of a complaint and found to be prohibited.

• The suppliers of the scheduled filters have undertaken to update their products and services to filter this material.

Members of the public who have elected to install and regularly update a filter will not be able to access the prohibited overseas content. The codes and legislation recognise that many businesses and schools, as well as a proportion of individual subscribers, already have some form of filtering control in place.

2.5 Why does the legislation focus on ISPs and ICHs when the real responsibility lies with the people who create or transfer offensive material on the Internet and/or with the people who download it?

The Commonwealth legislation regulates the activities of ISPs and ICHs. The second tier of the regulatory framework will be uniform State and Territory legislation (along with Section 85ZE of the Crimes Act 1914) regulating the activities of persons who create offensive material, who transfer such material onto or from the Internet, or who use such material.

The State and Territory legislation is intended to complement the Commonwealth legislation providing for a regulatory framework at the industry level, and ensuring that those who have prime responsibility for content are accountable.

3. Education and awareness

3.1 Shouldn't parents take responsibility for how their children access and use the Internet?

The Government's approach does not remove the responsibility of parents and guardians to manage their children's use of the Internet. Educating and advising the public about means to manage their, and their children's, use of the Internet is an important component of the framework.

Under the codes of practice, ISPs and ICHs are required to take reasonable steps to provide users with information about:

• supervising and controlling children's access to Internet content;
• procedures which parents can implement to control children's access to Internet content, including the availability, use and appropriate application of Internet Content filtering software, labelling systems and filtered Internet carriage services.

The Government encourages parents to make full use of filtering software or filtered search engines, and to take the time to find out about the different types of filters available. To facilitate user empowerment, the Government established NetAlert to educate and advise the public about ways in which they can manage their, and their children's, use of the Internet.

3.2 What is NetAlert and what does it do?

NetAlert (www.netalert.net.au) is an independent body comprising community and industry representation. Through this body the Government is providing $4.5 million over four years for national awareness campaigns to promote a safer Internet experience and for research into new access management technologies. The secretariat is located in Tasmania with oversight and policy direction from a board with national representation.

 

The following projects have been undertaken:

• Establishment of a free call national help line service which offers advice about the benefits and hazards of Internet usage including specific information on filtering.

• Development of a resource which provides practical information for Australians on access and content issues. An informative and accessible website is available at: www.netalert.net.au

• Industry liaison with the aim of helping industry to understand and comply with the online regulatory scheme.

• Establishment of a community development/education project to reassure the community, particularly parents and people who currently do not use the Internet, that their children's Internet experience can be safe, educational, informative and entertaining.

4. Filtering/Blocking

4.1 Are ISPs required to install filtering software on all services?

Contrary to some initial claims about the online scheme made in the press and elsewhere, the legislation does not require ISPs to install filters on their services or to engage in universal blocking of content. Rather, ISPs are required to provide a scheduled filter to their customers for use. Members of the public who elect to install and regularly update an scheduled filter will not be able to access prohibited overseas hosted content that has been the subject of a complaint and been found by the ABA to fall within a prohibited category. A list of scheduled filters can be found in Schedule 1 of the codes, which are accessible at www.iia.net.au.

4.2 Is the Government going to filter and/or censor material at Internet 'gateways' into Australia?

No.

4.3 Isn't it impossible to block access to overseas material?

The Government recognises that there are technical difficulties with preventing access to material hosted overseas that would be prohibited content in Australia. However, the Government considers that where it is technically and commercially feasible to prevent access to this material in Australia then this should be done.

In developing the legislation, the Government took into account a CSIRO report on blocking technologies. While no blocking technique is likely to be 100% effective, the CSIRO report canvasses a number of available blocking techniques which, if employed, could have an impact on the availability of illegal and offensive material on the Internet.

4.4 If there are a number of ways in which blocking technologies can be circumvented how can the Government expect its legislation to have any effect?

There are situations where some people will seek to evade any law. The Government considers that this is no reason not to try to align online content regulation with regulation applying to conventional media.

5. Effect on individual access and use

5.1 Does the legislation apply to emails and chat rooms?

The legislation does not apply to private or restricted distribution communications such as intranets or communications not in a stored form such as Internet telephony and chat rooms, nor to ordinary emails (not including postings to a newsgroup). Section 85ZE of the Crimes Act 1914 in relation to offensive or harassing use of a carriage service will continue to apply generally to communications that are not in a stored form.

5.2 Does the legislation apply to unsolicited emails (spam)?

People who receive unsolicited emails advertising or directing them to pornographic websites may complain to the ABA about the website/s in question.

Under the codes, ISPs are required to have procedures in place to deal with complaints from subscribers about unsolicited email (or 'spam') that promotes or advertises Internet sites or parts of Internet sites that enable, or purport to enable, end users to access information that is likely to cause offence to a reasonable adult. An ISP shall be deemed to have complied with this provision where they have provided complainants with, or directed them to, information describing methods by which receipt of unsolicited email of this nature can be minimised.

The ABA is able to direct compliance with these procedures if necessary.

The Privacy Amendment (Private Sector) Act 2000, for which the Attorney General has responsibility, became effective on 21 December 2001 and includes provisions with respect to unsolicited direct marketing emails. Under the Privacy Act, each time an organisation uses personal information for direct marketing purposes it must offer the recipient the opportunity to opt out of receiving any further direct marketing.

Under the IIA's Draft Privacy Code, released 16 August 2001 and to be registered by the Federal Privacy Commissioner, industry subscribers must seek a recipient's prior consent for the collection of personal information where it is intended for emails containing direct marketing ("opt in").

5.3 Does the legislation affect freedom of speech by inhibiting discussion of topical issues, eg. health issues, sex education, politics, religion and the like?

The legislation is premised on the principle that what is illegal offline should also be illegal online (and vice versa); it therefore does not place more onerous restrictions than those that apply to conventional media.

Classification of material as prohibited Internet content is based on specific and detailed criteria of the National Classification Code (www.oflc.gov.au/resource.html?resource=62&filename=62.pdf) that are developed in consultation with the community. These criteria are not concerned in any way with limiting freedom of speech by restricting political, religious or other discourse on topical issues and matters of public interest.

Classifications under the Classification Code are required to take into account the literary, artistic or educational merit of the material, its general character including whether it is of a medical, legal or scientific character and the persons or class of persons to or amongst whom it is published. This provision is intended to ensure that material that is for bona fide socially beneficial uses is not unnecessarily restricted.

As a complaints based scheme, the only material that will be blocked as a result of the legislation will be material that has been the subject of a complaint and been found by the ABA to fall within a prohibited category.

5.4 Doesn't the requirement on ISPs to prevent access to prohibited material raise serious privacy issues?

The legislation does not apply to ordinary emails or to other private or restricted distribution communications, nor does it require ISPs to monitor content.

6. Classification of content

6.1 Who decides what is 'objectionable' material?

Under the legislation, prohibited material is defined on the basis of the current national Classification Code (www.oflc.gov.au/resource.html?resource=62&filename=62.pdf), as RC and X rated material, and R rated material hosted in Australia that is not protected by adult verification procedures. The criteria of the Classification Code are detailed and specific and are generally accepted in the community. In relation to content subject to complaint hosted in Australia, the ABA is required to seek a classification from the National Classification Board.

6.2 Will the legislation cover hate or racist material?

'Hate' websites that advocate violence or other crimes, or content that otherwise includes descriptions of means to commit a crime, or incites the commitment of a crime, may fall into the RC category and be prohibited content under the legislation.

A number of Australian jurisdictions have enacted racial vilification statutes in recent years, including the Commonwealth's Racial Hatred Act 1995. The Crimes Act 1914 also prohibits the harassing or offensive use of a telecommunications service. However, these laws will not necessarily apply to all websites that may be of concern, for example, some Holocaust denial websites. This situation applies to conventional media and is consistent with generally accepted freedom of speech principles.

6.3 If there is just one objectionable page on a website, does the legislation require the entire website to be taken down?

Depending on the circumstances, the ABA take-down notice may direct an Internet content host to remove an entire website, or a distinct part of a website.

6.4 Given the large number of potentially prohibited websites, how will the ABA be able to examine them all?

As a complaints based scheme, the ABA only has to investigate websites which are the subject of a complaint. Although the legislation allows the ABA to investigate matters on its own initiative, this is intended to allow for the situation where the ABA receives information about particular Internet content or the conduct of an ISP or ICH by a source other than a public complaint (for example, from an overseas complaints service or police authority). It is not intended that this mechanism be used by the ABA to monitor content actively.

6.5 Are the ABA's decisions appellable?

Decisions by the ABA to issue take-down or access-prevention notices, or not to register an industry code, are subject to review by the Administrative Appeals Tribunal.

An industry standard determined by the ABA is a disallowable instrument and therefore is subject to Parliamentary scrutiny.

7. Government approach

7.1 Why is this an issue for Government?

The Government takes very seriously its responsibility to provide effective measures to prevent the publication of illegal and objectionable material online. The Government is particularly concerned to ensure that children are protected from exposure to unsuitable or inappropriate Internet content.

The Government is also concerned about the need to ensure consistency in the regulation of media content--the legislation is based on the premise that what is illegal offline should also be illegal online. It is also important to ensure national consistency of approach to this issue among the States and Territories.

Another consideration for the Government has been to provide regulatory certainty, to build business and consumer confidence and encourage the growth of the information economy. The framework is designed to meet the legitimate needs and interests of the community while ensuring that industry development and competitiveness is not stifled by overzealous laws, or inconsistent or unpredictable regimes.

7.2 What right does the Government have to decide what people can or cannot access on the Internet?

The Government believes that the same kind of restrictions on material that people can access offline, ought to apply online. This is especially important with regard to the protection of children from exposure to inappropriate material.

Of particular concern to the Government is that children with access to the Internet typically access it in the home or school often without adult supervision. While access to many commercial adult sites requires a credit card payment which acts as a form of adult verification, many of these sites have promotional or 'teaser' material which is freely accessible and may be in the X or R category. In addition, some non-commercial X and R rated sites are freely available, and in some cases distributed without solicitation or disguised by an innocuous URL.

A significant proportion of adults would also find this material offensive to general community standards, particularly if it was unsolicited or disguised. The legislation is aimed at preventing the publication of this material online in the same way it would be prevented offline. The legislation also provides a complaints mechanism, so that people who are concerned about particular material are able to do something about it, in the same way that people are able to complain about material in printed media, television or film.

7.3 If the Government is making ISPs liable for Internet traffic than why not make telecommunications carriage service providers and Australia Post liable for telephone calls and ordinary mail?

Telephone and mail communications are generally one to one communications that are accessible to the sender and recipient. Therefore, equivalent online communications such as Internet telephony and ordinary email are not covered by the legislation. The legislation only covers Internet content that is kept on a data storage device and accessible to the public.

7.4 If the problem of pornography on the Internet is so big, how can the Government expect its legislation to have any effect?

The Government considers that the size of the problem is no reason not to try to align online content regulation with regulation applying to conventional media.

7.5 What are the States and Territories doing about this issue?

State and Territory Governments have been consulted and informed of developments through the Commonwealth/State Online Council and the Standing Committee of Attorneys-General.

State and Territory Governments have agreed to enact uniform legislation regulating content providers in Australia, complementing the Commonwealth legislation providing for a regulatory framework at the industry level, and ensuring that those who have prime responsibility for content are accountable.

8. International aspects

8.1 Won't the legislation damage Australia's reputation as a world leader on Internet issues?

The debate on content regulation is continuing in a number of countries. It is for each Government to address this issue in a manner consistent with their legal environment and traditions.

The Australian Government has chosen a co-regulatory approach, that is, industry self-regulation within a legislated framework. The development of detailed industry codes in consultation with relevant Government agencies, community groups and the public puts Australia at the leading edge of online content management.

8.2 How is the legislation consistent with Australia's international commitments, eg. the Australia-US Joint Statement on Electronic Commerce?

The Joint Statement is in no way a binding document but in any event, the Government's legislation is consistent with both the letter and spirit of the Joint Statement. The relevant parts of the Joint Statement are:

• 'Governments should not prevent citizens from accessing information simply because it is published online in another country'

• 'Empowerment of users, including parents in relation to material which may be unsuitable for children, should be achieved through information and education, as well as through the availability of filtering/blocking systems or other tools'

• 'Industry will need to deal appropriately with complaints about prohibited content'

Document ID: 9145 | Last modified: 6 February 2008, 2:21pm