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An Essential Guide to Internet Censorship in Australia

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An Essential Guide to Internet Censorship in Australia 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 Censorship in Australia 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 Censorship in Australia” and is passage of the GST and Telstra 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 the Australian 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 Internet Censorship 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).
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