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7 JULY 1995

INTRODUCTION

There is community concern over the availability of offensive material from on- line information systems such as computer bulletin boards (BBS) and the Internet. In November 1993 the Minister for Communications and the Arts and the Attorney-General established the Computer Bulletin Board Task Force to examine the regulatory options for BBS. This consultation paper proposes a framework that builds on the work of the Task Force while recognising the need to address the problems in relation to a wider range of services.

Recent Government initiatives in communications are directed at ensuring Australia is positioned to take advantage of the opportunities provided by the new on-line services. On 6 April 1995 the Prime Minister, Mr Keating, announced the Government’s decision to implement a national strategy aimed at the adoption of new information and communications services and technologies. Issues concerned with the content of these new services, including those issues of censorship, are being considered in that context.

Many of the concerns arising from the BBS context are also relevant to other on- line services such as the Internet. There is a clear need for a consistent approach in the regulation of content that is available through various media sources.

The regulatory regime to be applied to these new services should be able to meet a number of potentially competing objectives. These include:

To achieve these objectives a self-regulatory scheme for on-line information services is proposed, reinforced by an education program and legislative sanctions to enhance its effectiveness. This strategy will incorporate: In the future, it is likely that consideration will be given to applying the proposed regulation system, or some adaptation of it, to other services. The ongoing development of new technologies, particularly in relation to broadband services, will provide the capability to deliver to consumers content in a form (eg full motion video) that at present is only available through the broadcasting medium. Some of the issues that exist in the regulation of broadcast content will also become relevant as on-line information services develop. The concerns relating to content regulation for on-line computer-based information services should not be seen in isolation.

The final report of the Government’s Broadband Services Expert Group, Networking Australia’s Future pointed out that as communications and information networks become more sophisticated, we can expect complex channels to develop for the circulation for information and for interpersonal communication. Such developments will increase the cost of comprehensive regulation of the flow of information as virtual gateways and outlets proliferate in response to greater interconnectivity. It will be difficult to restrict users’ access to sites with contentious material, especially when sites are outside Australia (p69).

Networking Australia’s Future recommended that existing classification systems be applied to equivalent material commercially available on the new (broadband) networks. While on-line computer-based information systems will encompass both broadband and narrowband services, the application of existing classification systems should be as consistent as practicable. The rapidly changing structure of information networks and service industries also suggests that a technologically specific approach to the problem is likely to be quickly out of date.

Submissions on the proposed strategy are invited not only on the application of the proposed scheme to BBS, but also whether it is an appropriate system for application to the wider range of on-line information services.

BACKGROUND

Bulletin Board Task Force Report

This paper should be read in the context of the Report of the Bulletin Board Systems Task Force, Regulation of Computer Bulletin Board Systems ('the Report'), which was made public on 5 October 1994.

The Task Force's Terms of Reference, which were confined to developing a system of regulation for BBS, are set out at attachment A.

The Report identified a number of options to regulate the content of material distributed by BBS. These included:

The Task Force also set out possible offence provisions for the partial application of the existing classification scheme.

Consideration of the Task Force Report

The options in the Task Force Report have been considered by Commonwealth, State and Territory Censorship Ministers. Ministers have requested that further consultation take place with industry and the community with regard to the Task Force proposals for dealing with BBS. The following proposal is put forward as part of the consultative process in relation to a wider range of services but is not intended to preclude comment on other means of dealing with the problem or on specific technologies and services.

It is stressed that no Government, Commonwealth, State or Territory has made a decision on the matter or on the proposals that follow. They are put forward for consultation purposes only.

Censorship in Australia

The proposed regulatory regime relies on the application of the classification scheme that currently applies to computer games, films and publications, to material transmitted through, or available from, on-line information services.

Censorship of publications, films and computer games in Australia is a co- operative scheme involving the Commonwealth, States and Territories. The current legislative scheme is being extensively revised and the Commonwealth's contribution to the new scheme, the Classification (Publications, Films and Computer Games) Act 1995, has recently been passed by the Federal Parliament.

Under the current scheme, the Commonwealth, through the Censorship Board and the Office of Film and Literature Classification, classifies publications (with certain exceptions), films and computer games on behalf of the States and Territories. Classification decisions are made in accordance with legislative criteria and guidelines agreed to by Commonwealth, State and Territory Censorship Ministers. Further, classification decisions are to give effect, as far as possible, to the following principles:

(a) adults should be able to read, hear and see what they want;

(b) minors should be protected from material likely to harm or disturb them;

(c) everyone should be protected from exposure to unsolicited material that they find offensive; and

(d) the need to take account of community concerns about:

  1. depictions that condone or incite violence, particularly sexual violence; and
  2. the portrayal of persons in a demeaning manner.
Under the Commonwealth, State and Territory scheme, State and Territory legislation contains offences for the possession of refused classification material for the purposes of publication, sale or hire and possession of child pornography. There are also offences relating to publication of restricted material contrary to the conditions attached to the classification accorded to that material.

While publications, films and computers are the subject of a formal legislative structure, the system is also drawn upon to determine classifications given to material in other media. The classification guidelines are the basis for the classification codes for free to air television and also apply to Pay TV. The aim of this approach has been to achieve consistency in the classification of similar material across different media. The method of achieving this end, however, varies according to the media involved. Consistent with this approach, the question arises as to how the current system can be utilised in relation to on-line information services.

PROPOSED STRATEGY FOR REGULATION

Outline

The proposed strategy has three key elements:

Self-regulation

Regard for prevailing community standards, through self-regulation, will be encouraged through the voluntary application of classification standards, codes of practice and the introduction of a complaints process. This approach will be consistent with the classification framework that currently exists in Australia.

The development of self-regulation will mean that there will not be a need for compulsory or formal classification of material on on-line information services by the Office of Film and Literature Classification. Instead, a code of practice will include guidelines developed in consultation with industry and the community.

These guidelines would apply to material corresponding to the refused classification category and the restricted classification category (eg. the ‘R’ classification for films) with provision for sanctions for non-compliance with the code. A sanction could be, for example, cancellation of membership of the relevant organisation or the removal of industry accreditation, if an accreditation scheme is introduced. Submissions are encouraged to address the point of what sanctions would be appropriate and effective to deal with non-compliance with guidelines.

To provide an incentive for self-regulation, the proposed offence provisions will recognise adherence to an approved code of practice as evidence that a person has taken all reasonable steps to control the existence or transmission of objectionable material. This will encourage on-line information service providers, and their representative bodies, to develop and implement appropriate procedures under a code of practice.

The proposed establishment of a single and independent complaints handling body will be an important part of an effective self regulatory framework. This body would handle complaints that had failed to be resolved following a direct approach to a service provider or system operator. The level of industry and government support for the complaints handling body will need to be determined, in consultation with the relevant industry and community groups.

The objective of the complaints mechanism will be to resolve complaints about material available through the networks before resorting to any offence provision. It is proposed that the complaints handling body would operate as an independent body to ensure public acceptance and confidence. There will also be a need to ensure standards applied by the complaints handling body reflect prevailing community standards as recognised in the classification standards applied by the Office of Film and Literature Classification for film and video and codes of practice in force for television.

Education strategy

The education strategy will address the major concern of access by children to inappropriate material. The development of advice to schools and parents on the measures that are available to manage access to on-line services, and the implementation of safeguards by Government education agencies will provide an effective approach to the problem.

In relation to the need for regulation of educational material, it might be appropriate that the Ministerial Council of Employment, Education, Training and Youth Affairs (MCEETYA) consider supporting measures to develop advice to schools and parents on mechanisms to manage access to on-line services.

A possible approach might be the development of an accreditation scheme for organisations and businesses providing properly monitored information services to schools. Accreditation would provide an effective mechanism for schools to identify service providers that meet their specific education requirements. This information could also be useful to parents in meeting the entertainment requirements of their children.

It may be possible to design computer network systems servicing the education sector to give educational institutions the choice of limiting the kinds of material students can access. This will be an important issue in considering services to be provided by the proposed Education Network Australia (EdNA) initiative. The issue of control of unsuitable material will be an important issue to be considered by the governing body of the network.

Offence provisions

The proposed offence provisions do not introduce liability for operators of on-line information services for all material that passes through their systems. However, to avoid liability in circumstances where objectionable material has been found and is available for access through the telecommunications network, operators of on-line information services would need to be able to show that they took reasonable steps to avoid a contravention of the offence provisions. These steps may include compliance with a code of practice in relation to procedures for dealing with objectionable material.

The emphasis of the proposal is on self-regulation to harness the self regulatory ethos already evident from the conduct of many of the participants in the new technologies. However, in recognition that in some cases a person may not abide by the rules, the ultimate sanction of an offence provision is included. This approach is consistent with that adopted for other media. The inclusion of offence provisions reflects the view that, notwithstanding practical enforcement difficulties, authorities still need to have a means to ensure compliance with community standards by those who deliberately set out to abuse the system. See attachment B for the proposed offence provisions and further commentary on their operation.

SCOPE OF THE NEW SCHEME

A definition of ‘an on-line information service' is included in the offence provisions set out at attachment B. The definition is in the following terms: 'an on-line information service' means a system of stored information accessed by computer through the use of a telecommunications network which allows a bi-directional transfer of files or messages between the user and the system'.

It should be noted that the proposed offence provisions in the Task force report applied to ‘computer bulletin boards’. Subsequent to the release of the report the focus of community concern has shifted to a wider range of on-line information services. The consultation paper adopts the term ‘on-line information service’ in place of the more narrow term BBS.

Despite this change in terminology there is still an issue whether the scope of the definition is appropriate. Questions arise as to whether there are other systems that should also be specifically excluded or included and, if so, what are they? If systems are to be exempted or included, what are the justifications for doing so?

The proposed offence provisions are set out at Attachment B.

It is recognised that there are a number of practical concerns about the introduction of offence provisions, specifically:

The offence provisions that are proposed in this consultation paper will address these concerns by ensuring system operators will not be liable: Systems operators and users will not be liable where: The aim of the proposed offence provisions is not to make system operators or service providers liable for objectionable material that has passed through their service or their data base where it can be demonstrated that they have taken all reasonable precautions to prevent that occurring. For example, compliance with an approved code of practice would be evidence of the taking of such reasonable precautions. The code would be determined in consultation with the community and the industry and taking into account any relevant research.

The development of a self regulatory framework and the establishment of complaints handling procedures to manage the less serious breaches of the code will allow law enforcement agencies to direct their efforts at the more serious offenders who are deliberately providing offensive material to the general community, particularly children.

Comments on the above and related issues are particularly welcome.

SUBMISSIONS INVITED

Comments are sought on any of the matters raised on the Consultation Paper and on all or any of the following points: Submissions should be forwarded to:

Information and Communications Services Policy Group

Department of Communications and the Arts

PO Box 2154

CANBERRA ACT 2601

or, by email, to consult@dcita.gov.au

Submissions are requested by 1 September 1995.

Attachment A

TASK FORCE TERMS OF REFERENCE

The Task Force was directed to consider options for developing a system of regulation of BBS that would: The Task Force was also directed to examine the adequacy of existing laws to deal with the misuse of the technology. Specifically, it was to assess whether:

Attachment B

COMMENTARY ON POSSIBLE OFFENCES RELATING TO USE OF AN ON-LINE INFORMATION SERVICE

Before reading the offence provisions it is important to note there is no intention to prosecute operators who act in good faith and maintain an adequate system for dealing with objectionable or restricted material. Operators who conduct their systems responsibly and with a sufficient number of internal controls (determined, for example, by reference to the code of practice or prevailing standards and technology) should not be liable to criminal sanction. Criminal sanctions are aimed at those people, both operators and users, who culpably breach the standards that are set regarding material that they transmit or advertise, or those who fail or refuse to exercise any effective controls over material that is publicly available through their information services.

Readers should also note that the defences provided are broad. A defendant who had objectionable material placed on his or her board without his or her knowledge and consent could, for example, argue that he or she is not liable as he or she had obtained undertakings from users that certain types of material would not be posted or posted inappropriately. The defendant may also be able to demonstrate that they had conducted random checks of material available through their information service.

Readers should refer to section 7 at the end of this document for the definitions of an on-line information service and of objectionable material and restricted material.

OUTLINE OF POSSIBLE OFFENCES RELATING TO USE OF AN ON- LINE INFORMATION SERVICE

Objectionable material

Section 1 - No transmission or advertising of objectionable material
  1. A person must not use an on-line information service to:

    (a) transmit objectionable material; or

    (b) advertise objectionable material as being available for transmission.

  2. It is a defence to a prosecution for an offence against subsection (1) to prove that the defendant believed on reasonable grounds that the material was not objectionable material.
Section 2 - Objectionable material not to be made available to other persons
  1. A person must not have objectionable material on an on-line information service under his or her control if that material is available to other persons for access and retrieval from that service.
  2. It is a defence to a prosecution for an offence against subsection (1) to prove that:

    (a) the defendant complied with a industry code of practice in relation to procedures for dealing with objectionable material posted on an on- line information service;

    (b) the defendant, or the defendant's employee or agent (as the case may be) took reasonable steps in the circumstances to avoid a contravention of subsection (1); or

    (c) the defendant believed on reasonable grounds that the material was not objectionable material.

Restricted material

Section 3 - Restricted material not to be made available to certain persons under 18

Restricted material which is unsuitable:

(a) for a person under 18 to see, read, or play must not be made available to persons under 18; or

(b) for a person under 15 to see, read or play must not be made available to a person who is under 15 years of age without the consent of his or her parent or guardian.

Section 4 - Offence of transmitting to or adverting restricted material as available to certain persons under 18

  1. A person must not use an on-line information service:

    (a) to transmit restricted material; or

    (b) to advertise restricted material as being available for transmission in a manner which breaches section 3.

  2. It is a defence to a prosecution for an offence against subsection (1) to prove that the defendant, or the defendant's employee or agent (as the case may be) believed on reasonable grounds that the material fell within a level of classification and took reasonable steps in the circumstances to ensure that the material was dealt with in accordance with section 3.
Section 5 - Offence of making restricted material available to certain persons under 18 on an on-line information service
  1. A person must not have restricted material on an on-line information service under this or her control if that material is available to other persons for access and retrieval from that service in a manner which breaches section 3.
  2. It is a defence to a prosecution for an offence against subsection (1) to prove that the defendant, or the defendant's employee or agent (as the case may be):

    (a) was unaware of the existence of the material and took all reasonable steps in the circumstances to avoid a contravention of section 3; or

    (b) if applicable, complied with a code of practice in relation to procedures for dealing with restricted material posted on an on-line information service.

  3. It is a defence to a prosecution for an offence against subsection (1) to prove that:

    (a) the material had been classified prior to the commission of the alleged offence; and,

    (b) the defendant, or the defendant's employee or agent (as the case may be) took reasonable steps in the circumstances to ensure that the material was dealt with in accordance with the conditions attached to that level of classification.

Section 6 - Commencement of proceedings

Proceedings for an offence under subsections 1(1), 2(1), 4(1) or 5(1) must not be commenced until the material has been classified.

Section 7 - Definitions

For the purposes of this section:

'an on-line information service' means a system of stored information accessed by computer through the use of a telecommunications network which allows bi-directional transfer of files or messages between the user and the system.

'a computer game' is a computer program and associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows the playing of 'an interactive game' as defined by the Classification (Publication, Films and Computer Games) Act 1995.

'objectionable material' means material that

  1. depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that the material should be refused classification;
  2. depicts in a way that is likely to cause offence to a reasonable adult, a minor who is, or who appears to be, under 16 (whether or not engaged in sexual activity);
  3. promotes, incites or instructs in matters of crime or violence; or
  4. if a computer game, is unsuitable for a minor to see or play.
Note: see the Classification (Publications, Films and Computer Games) Act 1995 for descriptions of the classifications which may be given to publications, films and computer games. Objectionable material as defined corresponds to the refused classification category.

'restricted material' means material that:

(a) is unsuitable for a minor to see, read or play; or

(b) depicts, expresses or otherwise deals with sex, violence or coarse language in such a manner as to be unsuitable for seeing, reading or playing by persons under 15.
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