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Internet Regulation in Australia

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Internet Regulation in Australia

Race Discrimination Unit, HREOC, October 2002

Contents

1. The
Australian Broadcasting Authority

2. Classification Standards and the Office of Film and Literature
Classification

3. Industry Codes of Practice registered by the ABA
4. Non-regulatory Approaches to Content Control

Introduction

This paper will outline
the regulatory provisions and non-regulatory strategies potentially available
in Australia to manage the problem of racism on the Internet. It will
examine the content regulation regime in Australia, including the classificatory
standards applied by the Australian Broadcasting Authority (ABA) and the
Office of Film and Literature Classification (OFLC). The requirements
of the relevant industry codes registered by the ABA will also be overviewed
as well as some of the possible non-regulatory options available for Internet
content management.

It is important to
note from the outset that racial vilification on the Internet is not prohibited
by the classificatory standards administered the Australian Broadcasting
Authority and the Office of Film and Literature Classification. So while
the following section describes the principal mechanism for Internet regulation
in Australia, this regime does not deal with Internet content that breaches,
or potentially breaches, the Racial Discrimination Act 1975 or
other anti-vilification laws.

1. The Australian Broadcasting
Authority

The Australian Broadcasting
Authority (ABA) is the principal agency responsible for Internet content
regulation in Australia. [1] The ABA describes itself
as administering a 'co-regulatory' scheme which was established by the Broadcasting Services Act 1992. 'Co-regulation' refers to the policy,
which underscores that Act, that industry should be a regulatory partner
with the ABA. The other principal tool available to the ABA for Internet
regulation is its complaints mechanism. The ABA can refer material to
the Office of Film and Literature Classification (OFLC). Material is assessed
by the ABA and classified by the Classification Board by reference to
the standards set out in Australian classification legislation and codes.

Schedule 5 of the Broadcasting Services Act 1992 gives the ABA the following functions:

  • Investigation
    of complaints about Internet content;
  • Encouraging development
    of codes of practice for the Internet industry, registering, and monitoring
    compliance with such codes;
  • Providing advice
    and information to the community about Internet safety issues, especially
    those relating to children's use of the Internet;
  • Undertaking research
    into Internet usage issues and informing itself and the Minister of
    relevant trends;
  • Liaising with
    relevant overseas bodies.

One of the core objectives
of the scheme is to "address community concerns about offensive and
illegal material on the Internet and, in particular, to protect children
from exposure to material that is unsuitable for them". [2] Clearly then the issue of racism on the Internet, which concerns both
offensive and potentially illegal material on the Internet (including
material, such as games and music principally targeted at young people),
falls within the parameters of one of the ABA's core aims, despite the
fact it is not dealt with in the regulatory framework.

The regulatory scheme
applies only to material that can be stored and not to real time activities
or communications via the Internet. Thus website pages are subject to
ABA regulation. Where games can be downloaded and sampled they form Internet
content subject to ABA regulation. The ABA also regulates audio, such
as music samples, and where lyrics are posted on the Internet they are
stored content material subject to the scheme. [3] The
ABA does not regulate email, or real time activities or discussions, as
these are not Internet material that would be stored or archived.

The ABA complaints
mechanism

The ABA utilises
a complaints-activated monitoring system as a key tool in discharging
its legislative functions. The ABA's on-line complaints information describes
the following Internet material as prohibited and consequently as material
which may be the subject of a complaint:

  • Content which
    is (or would be) classified RC or X by the Classification Board.
    Such
    content includes:

    • material
      containing detailed instruction in crime, violence or drug use;
    • child pornography;
    • bestiality;
    • excessively
      violent or sexually violent material;
    • real depictions
      of actual sexual activity; and
  • Content hosted
    in Australia which is classified R and not subject to a restricted access
    system which complies with criteria determined by the ABA.

    Content classified R is not considered suitable for minors and includes:

    • material
      containing excessive and/or strong violence or sexual violence;
    • material
      containing implied or simulated sexual activity;
    • material
      which deals with issues or contains depictions which require an
      adult perspective.

These two categories
of prohibited content are based on the National Classification Code and
Classification Guidelines as authorised by the Classification (Publications,
Films and Computer Games) Act 1995
. [4] We will
examine these classification standards more closely when discussing the
role of the Office of Film and Literature Classification below.

As noted, racially
vilificatory content would not generally be prohibited by these classificatory
standards.

As part of an investigation,
the ABA may request the Classification Board, based in the Australian
Office of Film and Literature Classification, to classify the content
according to its Guidelines for the Classification of Films and Videotapes
(Amendment No.3)
.

If the content breaches,
or is likely to breach, the classificatory standards, the ABA has the
power to require the content host to remove the material from its service
- where the content host is based in Australia. Therefore, dealing with
prohibited Internet content in Australia is a relatively straightforward
matter and failure by content hosts to comply with ABA orders can attract
significant penalties.

Like all agencies
regulating Internet content, the ABA faces greater difficulties in dealing
with material carried and hosted by off-shore providers. Where content
breaches or is likely to breach the classificatory standards, and it is
not hosted in Australia, the ABA will notify the suppliers of approved
filters of the content in order that these filters can be configured to
block access to the content. The codes of practice require Australian
ISPs to provide one of these products to subscribers (see below). It may
also liaise with overseas regulators to bring the problem to the attention
of overseas content hosts.

In cases where the
content breaches criminal standards (for example, child pornography),
the ABA may refer the material to the appropriate law enforcement agency,
the relevant state or territory Police or the Australian Federal Police.
Some racial vilification may fall into this category as we have seen. [5] That is, some racist internet material may constitute
a criminal offence in some Australian states. It is unclear what referral
processes to the police actually occur in such cases, but it is unlikely
that the ABA would act on such material unless it also contained child
pornography or other serious illegality.

2. Classification
Standards and the Office of Film and Literature Classification

The ABA may request
the Classification Board to classify Internet content according to the
Classification Guidelines and the National Classification Code. [6] In addition to publications, including Internet publications, this classificatory
regime applies to visuals and computer games. As noted above though, the
classificatory standards do not prohibit racial vilification on the Internet
despite the unlawful nature of the activity. This raises the issue of
the adequacy of the current classificatory standards in dealing with content
that is unlawful, or potentially unlawful, under the Racial Discrimination
Act 1975
or other anti-vilification laws.

The classificatory
standards in Australia are concerned with the prohibition or restriction
of material which is sexually explicit or portrays extreme violence. [7] There are six main classification categories. [8] For
the purposes of this discussion it can be noted that material classified
RC and X is prohibited and R-rated material must be subject to a restricted
access system. The descriptions applying to these classifications within
the relevant Guidelines are principally concerned with material of a sexual
or violent nature. [9]

It is problematic
that the classificatory regime in Australia does not prohibit Internet
material that is unlawful or potentially unlawful. The classificatory
regime is intended to reflect contemporary community standards [10] and these must include the standards established by federal law in the Racial Discrimination Act 1975, as well as state criminal provisions.

It can be argued
that the prohibition of racial vilification on the Internet is an objective
consistent with the aims and principles of the classificatory system in
Australia. Moreover, the inconsistency between the classificatory standards
and the Racial Discrimination Act and criminal anti-vilification
laws create obvious uncertainty and inefficiencies in Internet content
regulation.

3. Industry
Codes of Practice registered by the ABA

The regulatory scheme
in Australia emphasises industry self-regulation through the development
of industry codes of practice. [11] Where codes are
not developed by industry or are inadequate, the ABA is able to develop
and impose an industry standard. There are currently three codes of practice,
or content codes, developed by industry and registered by the ABA which
provide some of the industry standards applicable to Internet content. [12] Two of these codes apply to Internet service providers
and one to Internet content hosts. Internet service providers (ISPs) offer
a service for carrying communications to the public. [13] An Internet content host (ICH) is an organisation that hosts Internet
content in Australia. [14]

The three codes of
practice have been developed by the Internet Industry Association, the
key industry representative organisation in Australia. The original codes
were revised, amended and re-registered in 2001 and 2002, and are due
to be reviewed again in November 2003. [15]

The ABA may direct
an ISP or ICH to comply with a code if satisfied that it is not already
doing so. Failure to comply with such a direction may be an offence under
the Broadcasting Services Act 1992.

Content Code 1 deals
with ISP obligations in relation to general internet access. In conformity
with the stated priority of the Broadcasting Services Act 1992 the code is principally concerned with minimising access by children to
unsuitable Internet material. For example, the code outlines steps intended
to ensure that Internet access accounts are not provided to persons under
the age of 18 years without the consent of a parent, teacher or other
responsible adult. [16] It also requires ISPs to encourage
those of its subscribers that are content providers to use appropriate
labelling "in respect of Content which is likely to be considered
unsuitable for children." [17] Furthermore, the
code requires ISPs to provide users with information about the supervision
of children's access to the Internet and other matters such as Internet
content filtering software, labelling systems and filtered Internet carriage
services. [18]

ISPs are deemed to
have fulfilled these requirements "where they direct users, by means
of a link on their Home Page or otherwise, to resources made available
for the purpose from time to time by the IIA, the ABA, NetAlert or other
organisation approved by the IIA". Accordingly, ISPs can generally
discharge their responsibilities under the code through referral information.

The code also requires
ISPs to have procedures to deal with complaints from subscribers about
unsolicited email that advertises Internet information and sites "likely
to cause offence to a reasonable adult". [19] This
responsibility is discharged by an ISP by providing "complainants
with, or direct[ing] them to, information describing methods by which
receipt of unsolicited email of this nature can be minimised". [20]

Significantly, the
code also requires ISPs to inform content providers "of their legal
responsibilities, as they may exist under the Act or complementary State
or Territory legislation in relation to Content which they intend to provide
to the public via the Internet from within Australia". [21] With respect to all subscribers (and not just content providers) the code
states that ISPs must take reasonable steps to inform subscribers:

  • that placing
    content on the Internet may entail legal responsibilities under applicable
    State, Territory or Commonwealth law;
  • about their right
    to make complaints to the ABA about Prohibited Content or Potential
    Prohibited Content; and
  • about the procedures
    by which such complaints to the ABA can be made. [22]

The Code clarifies
that ISPs will have fulfilled these obligations to inform subscribers
"where they have included, on their Home Page or prominent Web Page"
the information stipulated above, or provided a link to a Web Page containing
that information and approved for that purpose by the IIA. [23] Again then, the responsibilities of ISPs, which are sketched in very general
terms under the code, are principally discharged through referral.

Content Code 2 deals
with ISP obligations in relation to access to content hosted outside Australia. [24] Specifically, the code provides that ISPs must
provide filter technology at a reasonable cost when it is notified by
the ABA of prohibited or potentially prohibited content, except where
the end user already has technology in place, such as a firewall, which
is likely is to provide a reasonably effective means of preventing access
to the material.

Finally, Content
Code 3 deals with Internet content host (ICH) obligations. Again, this
code is principally concerned to minimise the access of children to unsuitable
material and so it replicates many of the provisions outlined in Content
Code 1. [25] This code also outlines the same standards
as Content Code 1 regarding unsolicited emails advertising offensive sites. [26]

Content Code 3 also
requires content hosts to advise the content providers who use their services
"not to place on the Internet content in contravention of any State,
Territory or Commonwealth law". [27] It also refers
to providing users with information about their right to complain to the
ABA about content. Again, this obligation is discharged when the right
and means to complain to the ABA are referred to in a notice on the content
host's Home Page, a web page link or in the service contract. [28]

Finally, Content
Code 3 confirms the compliance of content hosts with take-down and other
notices from the ABA. It also requires compliance with the directions
of other "Relevant Authorities" and advising other content hosts
of prohibited content.

There are many other
industry codes adopted by ISPs around the world, and these are briefly
outlined in the United Nations report that supplements this paper.

4. Non-regulatory
Approaches to Content Control

There are a range
of non-regulatory mechanisms available to assist in responding to and
minimising racist content on the Internet. These include hotlines, filtering,
rating systems and education and awareness. Many of these are overviewed
in the Safer Internet Action Plan (SIAP) developed by the European
Union [29] as well as by the United Nations. [30]

Hotlines are one
approach used to deal with inappropriate or unsuitable Internet content
and this is a strategy particularly emphasised in Europe. Hotlines provide
a complaints service to the public, hence are a good way of monitoring
Internet content. Some hotline agencies are state funded while others
are industry financed. One of the most significant European hotline associations
is INHOPE (Internet Hotline Providers in Europe). INHOPE's principal focus
has been on child pornography, yet it has broadened its focus to the problem
of racism on the Internet in recent years. [31]

Reference has already
been made to filtering systems which can automatically restrict access
to problematic sites according to general notifications, end-user selection
or keywords. These filtering technologies are canvassed in a range of
reports, and particularly by the Australian Broadcasting Authority. [32] Several of these filters are applied specifically to limit access to hate
speech. [33]

Rating systems allow
content creators and/or third parties to classify content. This rating
is then identified by the end-user's filtering system and access is determined
accordingly. The major system used for associating labels with Internet
content is the PICS (Platform for Internet Content Selection) mechanism
developed by the Worldwide Web Consortium (W3C). If appropriate vocabulary
can be identified, PICS can be used to classify material based on racist
content, although the system does not guarantee that all sites will be
rated, or rated appropriately. [34] The Internet Content
Rating Association (ICRA) is the most prominent rating association in
the world and it operates its rating process by way of a questionnaire
completed by content providers. Again, there is no requirement that sites
be rated.

Search engines also
provide a possible framework through which racism on the Internet can
be limited. Search engine operations are generally based on keywords,
with each system using a different approach to rank the search results
requested by an end-user. It has been suggested that search engines could
be effectively utilised to apply content rating frameworks such as PICS. [35] It is also proposed that search engine catalogues
can be directed to rank anti-racist material as highly as racist material
in returning search requests. [36]

End-user education
is another non-regulatory tool available to combat racism on the Internet.
In line with its emphasis on protecting children from harmful content,
the Australian Broadcasting Authority has developed its "Cybersmart
Kids Online" education tool for children. [37] Other important 'net literacy' resources internationally include Childnet
International [38] and "Quality Information Checklist". [39] Some community organisations established to combat
racism and hatred can also be important resources in this regard. The
more well-known among international hate monitoring groups include the
Anti-Defamation League in the US, [40] Hate.com, [41] Tolerance.org, [42] Cyber-squatters against Hate, [43] the Simon Wiesenthal Centre, [44] the Southern Poverty
Law Centre [45] and Turn it Down [46].
Other non-regulatory provisions which could assist are monitoring and
promotions frameworks such as the development of guidelines, education
and so on. [47]


Endnotes

1.
The following description of the role and complaints process of the ABA
has been taken from the ABA's website. Please see: http://www.aba.gov.au/internet/index.htm.
2. "Internet", http://www.aba.gov.au/internet/index.htm,
ABA website, cited on 10/10/02.
3. There are also a few racialist sites that include
radio broadcast and/or audio downloads. This is another emerging trend
that may be expected to have increasing importance to racial equality
groups.
4. Section 9.
5. The Explanatory Memorandum of the Broadcasting Services
Act 1992
indicates that states and territories would be responsible
for enacting legislation to regulate the activities of persons who create,
upload or access content. The state and territory legislation outlined
in section 2 goes some way towards this, though it is not specific to
the Internet.
6. The Classification (Publications, Films and Computer
Games) Act 1995
authorizes these standards in Australia. See the Office
of Film and Literature Classification site to access the Act at: http://www.oflc.gov.au.
Guidelines for the Classifcation of Publications at: http://www.oflc.gov.au/resource.html?resource=63&filename=63.pdf;
National Classification Code: http://www.oflc.gov.au/resource.html?resource=60&filename=60.pdf
7. Guidelines for the Classification of Films and Videotapes (Amendment
No.3)
. See also Guidelines for the Classification of Computer Games
(Amendment No.1)
.
8. G, P and M are advisory categories. MA and R are legally
restricted categories. X is a special category which is also legally restricted
and some material is refused classification (RC).
9. The Classification Code stipulates that classification
decisions should be guided by 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;
(d) the need to take account of community concerns about:
(i) depictions that condone or incite violence, particularly sexual violence;
and
(ii) the portrayal of a person in a demeaning manner.
"Demeaning" refers to descriptions and depictions, sexual in
nature, which debase or appear to debase a person. It is not then a reference
which would directly include the concept of race hate. It is apparent
that, racial vilification is not accommodated within these principles.
10.. Guidelines for the Classification of Publications.
11. See Broadcasting Services Act 1992.
12. Again, most of the following description of the industry
Codes of Practice are taken from the ABA website: http://www.aba.gov.au/internet/industry/codes/content/index.htm.
See also the Internet Industry Association website: http://www.iia.net.au/.
13. Broadcasting Services Amendment (Online Services)
Act 1999
, s.8: "if a person supplies, or proposes to supply,
an Internet carriage service to the public, the person is an Internet
service provider". Under s.3, an "Internet carriage service
means a listed carriage service that enables end users to access the Internet."
S.7 of the Telecommunications Act 1997, in turn, defines a carriage
service to be "a service for carrying communications by means of
guided and/or unguided electromagnetic energy" (see also s.16 re:
listed carriage service which can involve carriage outside of Australia).
14. Internet content host means a person who hosts Internet
content in Australia, or who proposes to host Internet content in Australia: Broadcasting Services Amendment (Online Services) Act 1999, s.3
"Definitions". This same section outlines that Internet content
means information that:
(a) is kept on a data storage device; and
(b) is accessed, or available for access, using an Internet carriage service;
but does not include:
(c) ordinary electronic mail; or
(d) information that is transmitted in the form of a broadcasting service.
15. Register of Industry Codes, "Content Code 1:
ISP Obligations in relation to internet access generally" s.5.9.
16. Content Code 1: ISP Obligations in relation to internet
access generally" s.5.1
17. ibid, s.5.2
18. ibid, s.5.3
19. This is a different standard to that of the 'reasonable
victim' test used in determining racial vilification, as discussed in
section 2.
20. ibid, s5.7
21. ibid, s.5.1
22. ibid, s.5.5.
23. ibid, s.5.6.
24. Register of Industry Codes, "Content Code 2:
ISP obligations in relation to access to content hosted outside Australia".
25. Register of Industry Codes, "Content Code 3:
Internet content host obligations in relation to hosting of content withing
(sic) Australia" ss.7.1 to 7.4 inclusive.
26. Content Code 3: Internet content host obligations
in relation to hosting of content withing (sic) Australia" s.7.8
27. ibid, s.7.4
28. ibid, s.7.7
29. See ABA website links at http://www.aba.gov.au/internet/intl_liaison/index.htm for further information.
30. Review of Reports, Studies and other documentation
for the Preparatory Committee and the World Conference. Report of the
High Commissioner for Human Rights on the use of the Internet for purposes
of incitement to racial hatred, racist propaganda and xenophobia, and
on ways of promoting international cooperation in this area
. General
Assembly, UN Doc. A/CONF.189/PC.2/12, 27 April 2001, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.189.PC.2.12.En?Opendocument.
31. Review of Reports, Studies and other documentation
for the Preparatory Committee and the World Conference
, op.cit, p.13
32. Effectiveness of Internet Filter Software,
Report by the CSIRO, commissioned by the ABA and NetAlert, on the effectiveness
of filter software products: http://www.aba.gov.au/internet/research/filtering/index.htm.
33. Review of Reports, Studies and other documentation
for the Preparatory Committee and the World Conference
, op.cit, p.15
34. W3C Australian Office and DSTC Joint Discussion
Paper on Cyber-Racism
, submitted to inform HREOC's Cyber-racism Symposium
Background Paper, 26 July 2002, p.2
35. W3C Australian Office and DSTC Joint Discussion
Paper on Cyber-Racism
, op.cit, p.3
36. ibid, p.3
37. http://www.cybersmartkids.com.au.
38. www.kidsmart.org.uk
39. http://www.quick.org.uk
40. http://www.adl.org/main_internet.asp
41. http://www.hbo.com/hate/home.shtml
42. http://www.tolerance.org/hate_internet/index.jsp
43. http://aryan-nations.com
44. http://www.wiesenthal.org
45. http://www.splcenter.org
46. http://www.turnitdown.com
47. ibid, p.3

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