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Minister’s Address to the Volume 27 No 4 April 2009 Communications and Media Law Association Inside This Issue: On 25 March 2009, Senator Stephen Conroy, Minister for Broadband, Communications and the Minister’s Address to the Digital Economy, addressed the Communications Communications and Media Law Association and Media Law Association at the offices of Henry Davis York in Sydney. Landmark Copyright Case: The media sector, and indeed the entire com- We have committed to invest up to $4.7 bil- ISP Liability for Copyright munications industry, is undergoing a period lion in a National Broadband Network to be Infringement? of seismic change. constructed in partnership with the private sector.* New technologies and delivery platforms are Do You Need to be Licensed raising a whole range of new challenges and The National Broadband Network will pro- opportunities for traditional media providers. vide high-speed broadband access across the to Operate Your Internet country. They are also providing opportunities for Discussion Site? emerging players and services. It will support emerging applications in health and education. Production chains are changing and so too Government Focuses on Consumer are media consumption habits. It will support new developments in enter- tainment. Law Changes More generally, from an economic stand- point, we are currently living in challenging It will open new opportunities for business and uncertain times. and trade. Fakery and Deception in In this context, the digital economy has been This project will be a vital building block for Participation TV – Lessons identified by global leaders as a stimulus for Australia’s future economic productivity and Learned from the UK’s TV prosperity. future economic and social prosperity. Phone-line Scandals In this environment we have the potential to Certainly, recent economic turmoil has high- achieve new efficiencies, jobs and innovation. lighted the need for swift and decisive action when it comes to economic stimulus. Sports Broadcasting in the We have the potential to drive trade and pro- However, the Rudd Government has always ductivity growth. Digital Era understood the importance of planning and And, we have the potential to reduce the dis- building for the future. tance between those at the extreme ends of Long-term infrastructure investments are Trade Practices Amendment: the economic spectrum. essential to drive productivity and secure pros- Achieving Clarity in Pricing To prepare for this future, governments perity for the years to come. around the world need to lay foundations. This is certainly the case with communications We need to facilitate investments in digital infrastructure and is exactly why the govern- infrastructure and undertake the necessary ment is engaging in the National Broadband planning to ensure those investments are Network project. utilised. As you will appreciate, the Government is The Rudd Government fully recognises the locked down, finalising our very close and economic and social potential of digital tech- careful consideration of the Panel of Experts nologies. report on the five NBN proposals. Communications Law Bulletin This process is very much live and I am there- We have placed broadband at the forefront Editors: Matt Vitins & Lesley Hitchens of a nation-building infrastructure agenda. fore highly restricted in what I can say. Printing & Distribution: BEE Printmail Website: www.camla.org.au *Communications On 7 April 2009, the LawPrime Bulletin,Minister, Treasurer Vol 27 and N oMinister 4 2009 for Communications jointly announced that the Page 1 Government would build a $43bn Fibre-To-The-Premises Network. Contents Minister’s Address to the Communications and Media Law Association On 25 March 2009, Senator Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, addressed the Communications and Media Law Association at the offices of Henry Davis York in Sydney. Landmark Copyright Case: ISP Liability for Copyright Infringement? Anita Cade and Maya Port consider some of the issues raised in a recent Federal Court Action against ISP iiNet. And also review approaches taken to ISP responsibility for users’ copyright infringement in certain other countries.

Do You Need to be Licensed to Operate Your Internet Discussion Site? Matthew McMillan and Howard Cheung discuss the ASIC’s recent proposals on regulating internet discussion sites.

Fakery and Deception in Participation TV - Lessons Learned from the UK’s TV Phone-line Scandals Gavin Smith examines the background and regulatory response to one of the UK’s worst television public relations disasters involving the faking of winners in on-air phone competitions and broadcasters receiving revenue from premium-rate phone votes which were never counted.

Government Focuses on Consumer Law Changes Nick Abrahams and Kylie Howard provide an update on recent proposals to reform Australian Consumer Protection Laws.

Sports Broadcasting in the Digital Era

Trade Practices Amendment: Achieving Clarity in Pricing Bridget Edghill reviews recent amendments to the Trade Practices Act 1974 (Cth) concerning component pricing.

That is, the amount of time they spend online Long-term infrastructure investments are essential to increases. drive productivity and secure prosperity for the years In 2007, for the first time, Australian inter- to come. net users spent more time using the internet, than watching television.2 For online businesses, some argue that the What I can say, however, is that the Gov- These bits do not comply with the rules of next wave of growth will be driven mainly by ernment stands 100 per cent behind to its geography that we learnt in school. increasing the revenues generated by each election commitment to deliver the National user rather than specifically attracting new Broadband Network. For countries like Australia, this holds tremen- dous potential to overcome our physical dis- users. We will ensure that Australia reaps the full tance from the rest of the world and the vast For Governments the challenge is how to competitive benefits that a national broad- distances between our own cities and towns. ensure our citizens enjoy the same benefits band network can provide. It offers the potential to participate in the cre- and protections online as they have offline. We will ensure that we unlock the potential ativity and collaboration required to stimulate This requires targeted and appropriate regula- of the digital economy for all Australians. the growth of this new environment. tion that addresses online risks but still allows You will be aware of much speculation in the And ultimately, it offers the potential to open the transformative nature of technology to media – and I’m enjoying the daily updates – up global markets at the click of a mouse. add value to society. on the possible timing and outcomes of the This balancing act is even more pressing NBN process. The effective use of technology to manage digital information improves our productivity because of the second key trend that we are Our ambition for the timing of an announce- and social wellbeing. witnessing in internet usage. ment has always been contingent on the Current and future generations are increas- complexity of the considerations, and this Today, ICT is one of the largest drivers of eco- nomic growth. ingly ‘digital natives’ who do not know life remains the case. without a computer, the internet and MP3s. Broadband in particular has been shown1 to The National Broadband Network will be ‘Digital natives’ will have their first online reduce costs, improve information flows, and one of the largest infrastructure investments experiences earlier in their lives than previous streamline communications. undertaken by any Australian Government. generations, and significantly, they rarely log- It is therefore imperative and only right that The end result is higher levels of productivity off. and greater efficiency. the Government give this decision the full When they are online, they participate in a attention, scrutiny and care that it deserves. This goal however, will not be achieved with- different way than older generations – post- Our investments in broadband are driven out overcoming some challenges. ing up-to-the-minute status updates, photos by our recognition that digital technologies Challenges arise because of two trends that and videos to an array of web sites. promise considerable benefits for our econo- we are witnessing in how we use technology, To quote from Born Digital: Understanding mies and communities. particularly the internet. the First Generation of Digital Natives: To paraphrase Nicholas Negroponte, the The first key trend is that – as more house- “Digital natives’ almost never distinguish movement of atoms is steadily giving way to holds take up broadband – people increas- between the online and offline version of the transmission of bits. ingly become ‘heavy users’ of the internet. themselves”.3

Page 2 Communications Law Bulletin, Vol 27 No 4 2009 This lack of a distinction between the online Our investments in broadband are driven by our and offline impacts how digital natives inter- act with people. recognition that digital technologies promise Friendships are often formed first online, considerable benefits for our economies and without the traditional safeguards. communities. Digital natives also engage with media differ- ently – always looking for the ‘edit’ button. The Rudd Government is working to promote cial sustainability of the entertainment indus- Web 2.0 empowers our children with the consumer confidence through our own $125 try and promote an uncivil disregard for law. tools, and the expectation, that they can col- million dollar Cyber-Safety Plan. laborate and remix anything they read, hear The question becomes – how do we establish or view. This plan contains a comprehensive set of the norms to quell infringing activity online? measures to combat online threats and help Both of these trends present new challenges A number of different approaches are being parents and educators protect children from for businesses and new challenges for Gov- considered. inappropriate material. ernment. Some stakeholders are advocating a more It includes funding for education and informa- As our lives and those of our children are active role by Internet Service Providers to tion measures, law enforcement and content increasingly spent online, the challenge ‘police online file sharing’. filtering. becomes: How do we build trust to maximise Others advocate that business models need the commercial, community and personal We also provide a range of information about to change and that content owners adapt to benefits of the future growth of digital life? online safety through our e-security websites. new technologies. In the offline world, we have a long tradition These sites provide advice on how to protect As many of you may be aware, content indus- of laws, markets and norms that regulate our against malicious spam, phishing and spyware try players recently commenced legal action behaviour. that can lead to identity theft and financial in Australia against an ISP arguing precisely loss. this issue. But online, Governments and industry around the world are grappling with how best to The Rudd Government is also developing and This legal battle and the broader debate translate these offline modes. implementing several other e-security initiatives it forms part of, looms large in the digital which are aimed at awareness raising and edu- economy. To allow companies and citizens alike to play cation. a strong role in the next wave of growth, it It symbolises the important challenge we face is important that governments and industry In collaboration with the private sector, we today. share technical information to develop a greater collaborate. It embodies the challenge of how to lay down understanding of the online environment. We need to work together to ensure that the rules for tomorrow. people are as confident to engage via the We work together to identify potential threats The Government is obviously watching devel- internet as they are offline. to core infrastructure and services in banking, opments with interest. telecommunications, water and power. This requires ‘digital confidence’. The paths that we carve out today will allow These e-security measures should contribute companies and citizens alike to confidently A business with digital confidence expands its to the digital confidence of both citizens and enjoy the full benefits of the digital economy. online service offerings. businesses. Just as we enjoy a civil society in our everyday A citizen with digital confidence increasingly However, to build the digital confidence of physical worlds, we should all work towards finds information, communicates and trans- industry, the question must be asked whether promoting civility in the online environment. acts online. more can be done to facilitate their increased online engagement. We should also all be doing all that we can to Developing citizen and consumer confidence plan for the digital future. requires a focus on cyber-safety and e-secu- This is particularly important for those indus- rity. tries that are strong drawcards for the digital The Rudd Government has determined to economy such as the content industry. take a strong role to invest in infrastructure Some of this requires cross-jurisdictional col- and to develop policy to ensure that we maxi- laboration. We are, no doubt, all familiar with the adage mise the return on those investments. that ‘content is king’. The internet is global. Only by combining all of these factors can we It transcends national boundaries and is there- Content companies are increasingly experi- fully harness the benefits that digital technol- fore hard to regulate. menting with new online distribution and com- ogy can deliver. mercialisation models. However, the internet does require rules to Senator Conroy is the Minister for support a civil society. These models encompass exclusive channels Broadband, Communications and the operated by content owners, as well as highly Digital Economy and Deputy Leader of Just because it is a challenge does not mean popular platforms like iTunes, YouTube and the Government in the Senate there should be no regulation. MySpace. (Endnotes) It requires a global response. But the digital confidence of the content indus- 1 Department of Communications, try is undermined by reports that indicate that a Australia continues to engage on an interna- Information Technology and the Arts large amount of internet traffic is peer-to-peer tional level through forums such as the OECD, The Economic Effects of Broadband: an file sharing. APEC and CeBIT. Australia Perspective (2007) In 2008, Australia joined with other OECD They have a concern that a large proportion of 2 13.7 hours per week on the Internet v. countries in adopting the Seoul Declaration, that activity may be infringing content owner- 13.3 hours per week watching TV. Nielson which guides international collaboration in ship rights. Online Aussie Internet Usage Overtakes TV promoting cyber-safety and e-security. This level of infringement would be difficult to Viewing for the First Time News Release In addition to international co-operation, replicate in the offline world and, if it did occur, (March 2008). Governments around the world are develop- would likely be dealt with by laws and norms. 3 John Palfrey and Urs Gasser Born Digital: ing national strategies to promote consumer But in the online space, the activity persists in Understanding the First Generation of confidence. ways that potentially undermine the commer- Digital Natives (2008) at 20.

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