Digital Killed the Recording Star?

30 For example, Sony has recently announced 33 For instance, The Copyright Law Review Sean Simmons is an intellectual property that it has accepted M icrosoft’s media player Committee (CLRC) Simplification Report solicitor at Phillips Fox, Brisbane. as its form at of choice. recommends that no material form be required 31 See Sahane Simpson, “Moving Towards for copyright to subsist because of problems Sean has previously managed Brisbane Copyright Control on the Internet”, Media Arts the concept is likely to pose w ith digitisation. bands and is a regular adviser on Law Review, Vol. 1, December 1996. A copy of that report is available on the 32 Additional Information about the SDMI can Committee’s website at http:// entertainment and media law issues at be found at http://www.sdmi.org. www.agps.gov.au/clrc. the Arts Law Centre of Queensland.

An Essential Guide to Internet in

Brendan Scott, Gilbert & Tobin

Brendan is Gilbert & Tobin’s presented by the Government. By Senate, and, coincidentally the electronic business specialist. This early March 1999 it was clear that if Online Services Bill had also passed paper is an update of an earlier paper the Government wanted to make use the House of Representatives. Shortly “A Layman’s Guide to Internet of Senator Harradine’s vote for the thereafter, the Bill received the ” and is passage of the GST and Sale Governor-General’s assent and current at 1 October 1999. The views legislation it would have to do so by became law, although the Act limits expressed in this paper are not 30 June. itself to things occurring after 1 necessarily the views of Gilbert & January 2000 (to give industry On 19 March 1999 the Government Tobin. participants time to put compliance announced that it would introduce procedures in place). INTRODUCTION measures to “protect” Australian citizens against “illegal or offensive” The Act is very complex (it’s 72 pages In 1998 the Federal Liberal Party won material on the Internet. On 21 April of text are not a pleasant read) and, Government in Australia by a small 1999 the Government introduced a Bill w'hile this paper presents a general majority. The two major policy (the Broadcasting Services Amendment overview of the operation of the Act, platforms of its campaign were the (Online Services) Bill 1999) which many of its complexities have been introduction of a Goods and Services makes content hosts and service glossed over in order to cover its main Tax (GST), and the further partial sale providers liable for content they themes. You should seek specific of the incumbent carry. The Bill was referred to a Senate advice from your lawyer about how telecommunications carrier, Telstra. At Select Committee controlled by the it applies to you and how your risks the time Government did not control Government. The committee reported can be minimised. the Senate, but would be able to back on 11 May 1999 (a little under 3 secure a majority with the assistance weeks later). In that short space of WHAT IS THE ACT ABOUT? of Senator Brian Harradine. Senator time, the committee received 104 The principle underlying the Act is Harradine, is an independent Senator submissions in relation to the Bill, a that the holders and carriers of who held the balance of power in the large number of them arguing that it content should have more liability for Australian Senate until 30 June 1999. had serious deficiencies. The content than the creators of that Senator Harradine is known for taking committee’s report endorsed the Bill, content. The Act establishes two a hard line stance against the suggesting some minor amendments approaches to content regulation. In availability of pornography. to it. One member of the committee both cases, the creator or owner of (Senator Harradine) stated that the As a result of the 1998 elections, on 1 content is not subject to the effects of Bill did not go far enough. July 1999 the balance of power in the the legislation. The first approach of Senate was to pass from Senator On 26 May 1999 the Bill passed the the Act deals with internet content Harradine to Senate. By 25 June 1999, barely days hosts and internet content hosted Democrats. By early March 1999 it had before the balance of power in the within Australia. The second become clear that Australian Senate would pass to the Democrats approach is for internet content Democrats were opposed to the for years, the Government’s hosted outside of Australia. Government’s two main policy legislation on both the part sale of platforms, at least in the forms Telstra and on the GST passed the

COMPUTERS & LAW 13 An Essential Guide to in Australia

WILL IT JUST AFFECT BAD determination (rules made up from material (nudity) which is not subject PEOPLE? time to time by the ABA). to a restricted access system. At the moment, no system implemented to As should be evident, this is a The Act is the internet equivalent of restrict access will be a restricted complex scheme with many making the owner of a self storage access system. No matter how effective interlocking layers. In the following company liable for the material the a system is, it will only be “restricted sections we give a broad outline of public stores in its warehouse. It only access system” within the meaning of each of these categories in turn. affects people who house other the Act when it has received the ABA’s people’s content or move other imprimatur. people’s content from one place to TAKE DOWN RULES When a take down notice is received, another and it affects them at up to Take down notices are notices issued the recipient has until the following A$27,500 a day. It does not seek to affect by the ABA requiring an internet business day to take down the the people who own or create the content host to take down prohibited material. Flowever, they must also content. content hosted by that content host ensure that, at all times in the future, within Australia and not to host that they do not host that content again. HOW DOES THE ACT WORK? content in the future. “Internet The requirement to “not host in the content” is information which is The driving force behind the Act are future” will be extremely difficult to accessed or available for access over the “online provider rules”. Failure comply with, to say the least. to comply with such a rule, or failure the internet but excludes “ordinary to comply with a direction to comply electronic mail”. The Act doesn’t Take down notices also apply only to with such a rule means a fine of provide much guidance on what the extent the relevant content is A$27,500 per day for companies. The “ordinary electronic mail” is, apart to accessible from a site specified in the fines apply for every 24 hour period say that it doesn’t include a posting notice itself. Technically, if no site is of non-compliance, whether or not to a newsgroup. As the word “access” specified, no content has to be taken business is ordinarily carried on includes “access by way of push down. However, the Act doesn’t set during that time. If compliance is due technology” (that is, by email or by a out what an “internet site” is. by a Friday and compliance does not newsgroup posting) quite a lot of occur until Monday multiple fines material is internet content. In fact, if ACCESS PREVENTION RULES apply. it is possible to send (internet) email AND INDUSTRY CODES from a computer then under the Act, The legislation’s approach to content ONLINE PROVIDER RULES all of the information on that outside Australia is broadly similar to computer that can be attached to an that for content inside Australia in The online provider rules can be email can be “accessed by way of push broken down into the following that the ABA issues a notice to a service technology” - it’s internet content. In categories: provider after receiving and theory, the only information on such investigating a complaint. The basic Rules requiring an “internet content a computer which is not internet effect of the notice issued by the ABA host" to comply with a take down content is the “ordinary electronic is to require the service provider to notice (to remove content and not host mail” stored on it. take reasonable steps to prevent access it in the future) or with any Under the Act, the ABA can to specified content, or, if a code or undertaking they give to the investigate internet content in standard is in place, to prevent access Australian Broadcasting Authority Australia. It may do so on its own to that content in accordance with the (ABA) to “not host” specified material initiative or as a result of a complaint code or standard. As for content (these relate to content inside made to it by a, presumably within Australia, the requirement to Australia). concerned, citizen. Where the ABA restrict access is only limited to the Rules requiring “internet service discovers that an internet content host site specified in the notice. providers” to comply with access is hosting “prohibited content” or it The legislation requires an industry prevention notices given by the ABA discovers content that is likely to be code to be drawn up for internet (these relate to content outside of prohibited content, it must issue a take content hosts and for internet service Australia). down notice to that internet content providers. In the event that a code is host. Rules requiring a participant in the unsatisfactory, or is not drawn up internet industry (whether a content “Prohibited content” is internet quickly enough, the ABA may create host or a service provider) to comply content which is rated X (explicit an industry standard. Once a code or with an industry code or industry sexuality) or RC (refused a standard is in place covering a standard applicable to that classification) under the classification section of the internet community, participant: and scheme when hosted outside of then all participants in that section of Australia and, when hosted inside the community are bound by the A rule requiring a participant to Australia, also includes R rated relevant standard or code. If the ABA comply with an online provider

14 COMPUTERS & LAW An Essential Guide to Internet Censorship in Australia declares a standard, then failure to (g) procedures to be followed in The Act makes provision for comply with it is a breach of the Act, order to deal with complaints “designated alternative access and subject to a fine. about unsolicited electronic prevention arrangements”. The mail that promotes or purpose behind these amendments It is the intention of the legislation advertises one or more: was to excuse a content host or service that, if a code or standard is in place provider from complying with access and it deals with a number of specific i) Internet sites; or prevention notices if they had an things, then a person should comply ii) distinct parts of Internet appropriate access prevention with the code or standard in sites; arrangement in place. The provisions restricting access. However, if the iii) that enable, or purport to in the Act refer to not being required code does not cover the specific enable, end-users to access to take steps in relation to particular things set out in the legislation, the information that is likely to end users where those users have ABA may send an access prevention cause offence to a their access subject to a restricted notice to the service provider, which reasonable adult; access arrangement. However, if even requires them to take reasonable steps only one end user hasn’t signed up to prevent access to the content. In (h) action to be taken to assist in for one of these arrangements the determining whether the steps are the development and service provider must still keep in reasonable, regard must be had to the implementation of Internet place the infrastructure necessary to technical and commercial feasibility content filtering technologies (including labelling restrict that user’s access. of taking the steps. It is not clear technologies); whether the same test of ONLINE PROVIDER reasonableness will be applied across (i) giving customers information DETERMINATION the industry. That is, does a one about the availability, use and person operation have to comply to appropriate application of Finally, the ABA may make written the same standard as an organisation Internet content filtering determinations setting out rules that the size of Telstra (the current market software; apply to internet service providers incumbent)? (j) procedures directed towards and internet content hosts. These Some of the things that a code or the achievement of the determinations have the force of law standard is intended to deal with are: objective of ensuring that of themselves and any failure to customers have the option of comply with an online provider (a) procedures directed towards subscribing to a filtered determination will be an offence. An the achievement of the Internet carriage service; online provider rule might be used objective of ensuring that (k) procedures directed towards by the ABA to augment an industry online accounts are not the achievement of the code, for example. provided to children without objective of ensuring that, in the consent of a parent or the event that a participant in HOSTING responsible adult; the relevant section of the The word “host" is not defined in the (b) giving parents and responsible Internet industry becomes legislation. It would be reasonable to adults information about how­ aware that an Internet content assume that “to host” will require to supervise and control host is hosting prohibited children’s access to Internet content in Australia, the host some element of permanence. That is, content; is told about the prohibited that “hosting” content in transit via a content. server for the purpose of enabling that (c) procedures to be followed in transit is unlikely to be hosting within order to assist parents and All of these obligations can be backed the meaning of the legislation. The responsible adults to supervise up by the $27,500/day fine. For creation of a cache however, will be and control children’s access example, failure to give parents another matter. It is reasonable to to Internet content; information about how to supervise suspect that service providers which (d) procedures to be followed in and control children’s access to host content for third parties will be order to inform producers of internet content can be an offence and content hosts within the meaning of Internet content about their subject to a $27,500 fine for each day the legislation. Where the dividing legal responsibilities in (and possibly also for each set of line will ultimately be drawn is very relation to that content; parents) that the person fails to comply difficult to tell. For example, will with the procedures relating to giving (e) telling customers about their providing a room to house a third to make complaints that information. Similarly if a content party’s server and maintaining that under the scheme; host fails to inform producers of server be “hosting”? internet content about their legal (f) procedures to be followed in responsibilities in relation to that order to assist customers to content, they can also be committing make complaints under the an offence. scheme;

COMPUTERS & LAW 15 An Essential Guide to Internet Censorship in Australia

INTERNET SERVICE thousands to which use of part of that LIABILITY FOR COMPLIANCE PROVIDER trunk line is ultimately resold accesses The Act has specific exemptions from the internet over it, the owner of the civil liability for complying with the The Act defines “internet service trunk will be an internet service provisions of the Act, either as a provider” very broadly. Effectively provider on a strict reading of the Act. content host or service provider. any person who provides a carriage Given that the Act also sets out a service through which a non­ scheme which permits ISPs to receive MISCONCEPTIONS ABOUT employee third person accesses the an ABA notification by substituted THE ACT internet is an internet service service (that is, the ISP will be bound provider for the purposes of the if they ought to have known about Perhaps the most dangerous legislation. The definition of “internet the notice, even if they did not misconception about the Act is that it service provider ” in the Act also omits actually know about the notice) puts is a “toothless tiger” in that, though it to restrict its meaning to persons carriage service providers in a may be in place, it won’t be enforced. providing services partially or wholly difficult position. Theoretically they This reaction has been fuelled in part within Australia. While it is unlikely may be liable for a breach of a notice by the perceived harshness of the Act that this was Parliament’s intent (or where they weren't aware of the in the internet industry - if it is so bad, that it would be read in this way), notice, and, indeed, if they were the thinking goes, it mustn’t be there is some scope for arguing that it aware of the notice, may not have been intended to be enforced. Under the applies to non Australian service aware that they were the covered by Act, the ABA has a limited discretion providers, especially given that the it or have any real means of to fail to investigate complaints corresponding definition of “internet determining whether they were. (primarily if they are vexatious). content host” makes a specific Similarly, if the ABA believes that reference to hosting within Australia. THE GOOD POINTS OF THE prohibited content is available there If this is the case, any access by an ACT are very limited circumstances in Australian to foreign content will which it is not required to issue a Part 9 of the Act has relatively broad make at least one foreign carrier an relevant notice. In the majority of exemptions from liability under State internet service provider for the cases the ABA must issue the notice. and Territory content regulation laws. purposes of the Act. In effect, the legislation practically In particular State and Territory laws Strictly interpreted the definition of mandates the enforcement of its own have no effect to the extent that they; “internet service provider” means provisions. that, for example, if a given internet (a) subject an internet content host to civil or criminal liability for The second misconception is that circuit is made up of a number of hops, completely “turning off” a hosted site each provided by a separate reseller, hosting content where the host once a notice is received in relation to each and every reseller will be an was not aware of the nature of the content; content hosted on that site will be a internet service provider for the remedy available to a content host. purposes of the Act. In fact, taken to (b) requires an internet content The exemption from civil liability its extreme the parents who purchase host to monitor, make provided by the Act is effectively an internet access service and the enquiries about or keep limited to what is required by the Act. records of internet content resupply it to their children are also If the Act only requires taking down hosted by that host; likely to be internet service providers specified content (for example), then for the purposes of the legislation. (c) subject or could have the effect the content host could be sued for The practical effect of this means that of subjecting a service anything done which goes further most people who take or provide any provider to liability in relation than what is required by the Act. A form of carriage service within to content carried when they similar argument can be made in Australia will find it very difficult to were not aware of the nature respect of access to overseas sites. An escape the operation of the Act, even of that content; or end user may have a claim for breach though it may have no sensible (d) requires a service provider to of contract in the event that a service application to them. For example, if a monitor, make enquiries about provider restricts access in a manner person provides a trunk route or keep records of content not required by the Act. carried by the provider. between two cities within Australia - Another misconception is that private but provide carriage only, with no This does not mean that content hosts networks are not subject to the routing or switching functions that will be immune from Commonwealth application of the Act. In the course person would not normally be laws which have any of these effects of campaigning in favour of the considered to be an internet service (in particular the Act). The Minister legislation the Government was provider within the ordinary may make determinations which confronted by arguments about the meaning of the term. However, if only have the effect of removing the applicability of this legislation to one person of the hundreds of immunity from specified laws. “private” information contained on

16 COMPUTERS & LAW An Essential Guide to Internet Censorship in Australia computers. In response it indicated internet. Fundamental to that computer in the next building as it that information contained in private economy is a system of payments for does from a building on the other side networks was unlikely to be the data received. Under that system of the world. Other operators, subject of a complaint because access service providers wishing to access including Cable & Wireless Optus, to the information is restricted and, if content not housed on their network have for some time offered an a complaint was made, the ABA was must pay another service provider for unbundled internet access rate in unlikely to be able to successfully access to that content. Those which Australian domestically investigate the complaint. While both payments are set by reference to the sourced content is charged at a lesser of these things are true, the legislation haulage cost involved to present the rate than foreign sourced content. This itself does not draw any distinction data at the network boundary arrangement encourages the between different types of host. The between the two service providers. development and housing of content legislation can be read equally as “Close” content - content within within Australia and promotes applying to private information as it Australia - costs less to deliver than competition and efficiency in the does to public information. “distant” content - that is, content Australian internet market. However, overseas. The Act’s purpose is to force if a significant proportion of PROBLEMS WITH THE ACT a portion of Australian content Australian content is suddenly offshore, increasing the costs to transformed into foreign content, the A number of arguments as to the acquire that content. Further, from an ability to differentiate unbundled technical feasibility of the measures end user’s perspective the source of products is greatly reduced. If the prescribed by the Act have been made content is largely, if not entirely, availability of unbundled rates by commentators. However, the irrelevant. The information declines, so does the competitive fundamental problem with the Act is superhighway completely advantages of local content providers that it is wrong in principle. The Act transcends national borders. So, - as they are unable to take advantage makes the wrong people liable for forcing content offshore does not limit of lower cost distribution. content - it is carrier liability access to the content. All it does is legislation. Carrier liability introduces The third consequence is to do with increases the cost of access and make significant compliance costs at the provisioning of international capacity it payable to a foreign carrier. wrong point in the distribution chain, and lead times. Again, this works to leading to significant market This has three consequences. The first the benefit of the market incumbent. distortions. If the Act applied to end consequence is that everyone must Unless a carrier owns physical users and content producers it may pay more for access to any content. If infrastructure - that is, undersea still offend principles of free speech, a significant proportion of data in cabling - to foreign countries, in but at least it would make the right Australia is moved overseas, particular the United States, it must people shoulder the liability. Australians must pay to import that purchase the international capacity data in the first place. Further, where from a carrier that does. While such Putting this into a real world context before that data could be stored in purchases are commonplace, they better shows the problems - an Australia to satisfy later requests (that usually involve the need for specific analogy might be that the Post Office is, it could be cached or mirrored), capacity forecasting anything up to should be liable for restricting access now the data must be imported each 12 months in advance, and capacity to inappropriate content sent through time a content seeker requests it, usage commitments for a similar the post. First, the Post Office would multiplying the cost of providing the period. This means that the transition have a strong incentive to inspect all data. Billing mechanisms in the period during which the Act will be articles passing through the post. To internet are relatively immature. put into effect will place capacity lead do so it would need to acquire and Current technology is unable to time risk on a number of internet maintain expertise irrelevant to its premium bill content subsets - all providers. They will need to make core function (the delivery of mail), content is charged at a flat rate. As advance provisioning for the expected incur compliance costs in effecting such, there is no way to assign the increase in traffic flows. If they the content review, replicate the increase in cost to those end users overestimate this provisioning, they content review function (it should which are forcing the cost increase will be paying for unutilised capacity, already have been undertaken by the with the result that all end users must if they underestimate, their end users sender of the content), and would pay for use by the few. will experience lag during peak detrimentally impact on its ability to periods. perform that function efficiently. The second consequence is that by Needless to say, costs would rise and forcing content offshore, the position Ironically, the processes set out in the performance would drop. Businesses of the current market incumbent, Act all contain a common single point which used the Post Office would in Telstra, is strengthened. Telstra of failure - the conduct of an turn become less efficient. currently offers a bundled rate for investigation by the ABA. Those data provided over the internet. That service providers which are on a What this analogy does not bring out is, using Telstra’s network it costs the network isolated from the ABA are is the underlying economy of the same to acquire 1 MB of data from a unlikely, as a practical matter, to be

COMPUTERS & LAW 17 An Essential Guide to Internet Censorship in Australia investigated by the ABA and, • significant barriers to entry in Australia will be placed at a consequently, are unlikely to be the the provision of content (eg competitive disadvantage as subject of any of the notices video production etc) vs against our regional contemplated by the Act. At the very minimal or no barriers to entry neighbours: least we are likely to see the in the provision of content 6. some of the provisions of the developm ent of a “content (users are forgiving of Act indicate a disturbing lack underground” of network islands “unprofessional” content) of understanding of the which permit access to known friends • communications costs are medium being regulated; and and deny that access to outsiders - in borne by content provider 7. anecdotal evidence suggests a sense, an internet ghetto-isation. (establishing and maintaining that the access to prohibited While these “ghettos” probably a transmitter) vs content in Australia will be already exist, if they increase they will communications costs are only marginally impacted if at provide a haven for serious criminal borne by content seeker all. elements - for example pushers of truly (interconnection charges). abhorrent material, rather than “mere Addendum: On 30 September 1999, pornography”. It is almost as if broadcasting and the Australian Senate (the Upper internet are antonymous. Given the House of the Australian Parliament) As a final point, it is also not at all extreme divergence of characteristics, passed the following motion: clear what relationship internet one might argue that the more That the Senate— content bears to broadcasting experience a body has with broadcast services, or the Broadcasting Services regulation, the less qualified it is to (a) notes the range of recent Act 1992 to which it has been added deal with the internet. Further, the criticism and developments as an amendment. The divergence of justification for regulation of surrounding the characteristics between broadcast broadcasting is that an exclusive Government’s Broadcasting media and the internet are manifold licence over public property (the Services Amendment (Online and significant: broadcast spectrum) is being given to Services) Act 1999 (the Act); a broadcaster for the purpose of (b) recognises that: BROADCAST MEDIA conducting a business. There is no i) the Act will not achieve the CONTENT/INTERNET comparable analogy in the internet Government’s stated CONTENT space. There is no readily identifiable objectives, public property that is being • content selected and provided appropriated to someone’s exclusive ii) the Act will impact by content provider vs content use. adversely on the emergent selected and acquired by Australian e-commerce and content seeker In summary: Internet industries, which • content “pushed o u t” vs 1. the Act is fundam entally are strong employers of content “pulled in” wrong in principle. Shooting young Australians, the messenger is not the iii) the Act will discourage • “minimum to play” includes solution; investment in information significant infrastructure - 2. compliance with the scheme technology projects in only the big end of town can Australia and will force compete vs “minimum to will be both uncertain and involve significant compliance Australian business p lay ” is negligible, size of offshore, and player of low relevance costs which will be passed on to all internet users iv) the most appropriate • physical limitations on the 3. the Act will introduce arrangement for the location of infrastructure vs no significant distortions into the regulation of Internet limitations on the location of market. These distortions are content is the education of infrastructure likely to favour the market users, including parents incumbent: and teachers, about • physical limitations on the appropriate use of the mobility of infrastructure vs no 4. failure to comply with the Internet, the empowerment limitations on the mobility of scheme is attended by of end-users, and the infrastructure disproportionate penalties; application of appropriate • competition confined to 5. all internet businesses within end-user filtering devices specific geography and Australia and all businesses where required; and therefore quantifiable relying on them will be competitors vs no geographical adversely impacted. Internet barriers to competition related businesses within

18 COMPUTERS & LAW An Essential Guide to Internet Censorship in Australia

(c) calls on the Government: ii) to urgently revisit aspects the Senate at 6-month of the Act, prior to its intervals from the date of i) to immediately address the commencement on 1 implementation of the concerns raised by industry January 2000, and regulatory regime. and the community about the unworkability of the iii) to table a report on the The text of the Act is available from Government’s approach, effectiveness and http://scaleplus.law.gov.au/html/ and the Act in general, consequences of the Act in comact/10/6005/rtf/No90ofl 999.rtf.

And Now to Regulate Internet Gaming —A Gamble in Itself

John Lambrick, RMIT University, Melbourne

INTRODUCTION lawyers have still not come to grips or relationship with the with the fact that it is impossible to relevant state or country Enthusiasm for online gaming effectively regulate Internet activity administered by that appears to be gaining significant through legislation. If, on the other government. Thus, for momentum in Australia, and it is hand, the purpose of the legislation example, the Victorian state estimated that last year 86,000 is to facilitate Internet gaming and to government would not be Australians used the Internet to bet on give players a greater opportunity to recognised by other sports and casino games1. This is governments as having gamble online with a solvent body hardly surprising given that jurisdiction to legislate with and with a reasonable likelihood that gambling, and now Internet use, are respect to kiwi breeding in any winnings will be paid, then I firmly engrained in Australian New Zealand. suggest that the legislation has some popular culture. It also comes as no prospects of success. • The government must also be surprise that Australian legislatures in a position to exercise power have rushed headlong into regulating THE JURISDICTION ISSUE over or control breaches of the Internet gaming activity. activity which the government Legislation which attempts to With the exception of New South seeks to regulate. Law-making regulate Internet activity must Wales and Western Australia, the requires some mechanism for recognise the jurisdictional remaining Australian states have law-enforcement which in limitations involved in doing so. The passed or have indicated an intention turn depends on the ability to legal issues relating to jurisdiction and to pass legislation to regulate online exercise physical control over the Internet have been extensively and gaming. The Northern Territory has law violators3. well argued elsewhere2, and it is the also enacted such legislation. For the writer’s opinion that for a Attempts to create effective regulation purposes of this article, I propose to government to effectively regulate any of the Internet fail on both counts. The make comparisons between the activity, the following are necessary Internet is so geography-averse that Queensland Interactive Gambling criteria: in any instance it may be impossible (Player Protection) Act 1998 and the to determine an Internet user’s Victorian Interactive Gaming (Player • The government must have physical location or the location in Protection) Act 1999. jurisdiction to regulate the which Internet activity occurred. For activity. Jurisdiction is example, I may register an address in WILL THE LEGISLATION geographically determined, the “com.au” domain, but I do not SUCCEED? and ultimately the jurisdiction need to have my operations based in of a government depends Australia to enable me to do so. Whether or not the legislation will upon its recognition by other succeed depends upon the purpose Furthermore, there is nothing to stop governments. Therefore, me transferring my host computer of the legislation. If the purpose of the attempts to assert jurisdiction legislation is to regulate Internet and my Internet address (or either of need to be credible. A them) to any other location in the gaming activity in Australia, then it government will only have world. Persons dealing with me will be a dismal failure. jurisdiction over persons and Unfortunately, many politicians and things which have some nexus would have no idea that such transfers had taken place.

COMPUTERS & LAW 19