Submitted by: Brendan Scott
2 Park Street
Submission Ddated: 8 February 2002
This supplement dated: 20 February 2002
This supplement clarifies a statement in relation to requirements of complaints under the Federal internet censorship scheme and provides a short update in relation to a relevant ABA report tabled in the Senate on 13 February 2002. Changes from the previous submission are marked up. [Ed note: mark ups not shown in html version]
This submission relates only to Schedule 2 of the Act/ the proposed Part 5A, references to this Act should be read as references to Schedule 2. This submission makes no comment in relation to the balance of the Act. This submission is made in my personal capacity, not on behalf of my employer.
Fundamental problems with this approach
The existing rating system assumes distribution channels and corporate self interest in establishing and requiring compliance with rating schemes. It is based on a model where consumers purchase from publishers, with no sale or resale by consumers. While we have some way to go, the indications are that, in the networked world of the future, citizens will cease being “mere consumers” and will begin to also be publishers and distributors. The most effective means of regulation of such an organic system is to encourage self compliance with classification systems by both consumers and producers. Today some of the most popular and high bandwidth applications on the internet are those which permit file swapping between peers. More importantly, this transfer between consumers may occur as an adjunct to ordinary communication with no payment made or expected.
For example, at the start of the internet revolution sites such as jennicam.org became hugely successful simply by providing real time video of a given person. In the United States this has taken a more sinister turn with online voyeur sites spying on individuals and posting photos or videos of them on the internet.1 Even internet neophytes have heard of Napster and the growth of its clones and heirs.
If we have a world of merged consumer/producers in which producers of material are not necessarily producing material for monetary profit and in which the distribution of material occurs through consumers “pulling” content to them, then the availability of accurate classification information about content will become crucially important to consumers. However, any complex administrative structure or a structure which is overly punitive of legal, but “dissenting”, material will push people away from the classification structure, especially if restrictions can be subverted. This may result in the new breed of producer ignoring and avoiding the classification regime because they have no interest in compliance, or because they do not have the administrative apparatus in place to enable compliance. This is contrary to the objectives of a classification regime, which ought to seek to classify as much material as possible.
The ultimate aim of the classification system should permit individuals to accurately self rate depictions of legal activity without threat of sanctions for correct description.
Objectives already addressed in existing legislation
The aims of Part 5A are to
"Deter the making of “objectionable matter” available on the Internet; and
Protect children from “matter unsuitable for minors
[objectionable matter] would include, for example, child pornography, sexually explicit material, or material instructing in crime."
The Hon. J Hatzistergos, second reading speech Legislative Council Hansard 4/12/01 at 19371-2.
The following are already offences under the Crimes Act (NSW) 1901:
(a) publish an indecent article – section 578C(2)
(b) possess child pornography – section 578B(2)
(c) publish child pornography – section 578C(2A)
The sale or public exhibition of an RC film is also prohibited under section 6 of the Classification Act.
Publish has a very broad meaning including (section 578C(1)):
(a) distribute, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire, or
(b) have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a), or
(c) print, photograph or make in any other manner (whether of the same or of a different kind or nature) for the purpose of doing such an act.
Sections 578C(2B) and 578C(2C) make it clear that publication through the use of a computer is intended to be covered by the ambit of section 578C (specifically stating that any computer used in publishing can be forfeited to the Crown). As an aside, this section is itself overly broad in that the computers of service providers (and other innocent third parties) can be caught by this forfeiture provision without the protections included in the current Act for service providers.
The key objectives of the Act are already anticipated by the Crimes Act and existing Classification Act. While the author understands that the current Act is aimed at consistency across the Federation, this is not a basis for exposing NSW citizens to multiple offences. Legislation ought not to be passed which creates multiple offences for the same aspects of the same conduct. The existing provisions are already very broad in relation to the material the subject of the Act and do not need the extension. Further they have the benefit that the prohibitions change automatically to reflect community attitudes.
If the Government proceeds with this Act it should repeal the “publish indecent article” provisions – at least to the extent they relate to on line content (we note that section 578C(1) already excludes some material based on its classification but arguably does not protect content unclassified at the time of the acts giving rise to the offence which subsequently is classified).
Absence of community concern in relation to sexual material on the internet
“Come on, get real! We are not talking about that sort of stuff. We are talking about the fact that you have only got to press P on the Internet and all this stuff appears free of charge in front of you and young children can access it. You know they can. We have had plenty of evidence about that…”
Senator Paul Calvert.2
Senator Calvert’s observation during the Senate Select Committee on Information Technologies inquiry into the Broadcasting Services Amendment (Online Services) Bill is a testament to the longstanding, broad and free availability of sexually related material over the internet.
In 1999 the Federal Government passed the Broadcasting Services Amendment (Online Services) Act 1999 (which will be referred to this Act in this submission as the Internet Censorship Act). One aspect of that legislation was to establish a scheme for complaining about sexually related material (among other things) available on the internet. While the nature of the complaints process makes it inherently difficult to establish community support for internet censorship (as the complainant does may not need to disclose their identity3, there is greater scope for non-genuine complaints, the possibility of multiple complaints relating to the same material and the nature of the system as a complaints system by its nature excludes views opposed to censorship) it is possible to put upper bounds on the concern of the Australian community by reference to the actual number of complaints received. These complaints were analysed in the Six-Month Report On Co-Regulatory Scheme For Internet Content Regulation July To December 2000, complied by the ABA and tabled by the Minister for Communications, Information Technology and the Arts in Federal Parliament in April 2001 (ABA Report).
In the 12 months to December 2000 from the whole of Australia a total of 491 complaints were received (Section 2.2.1 of the ABA Report). While 491 complaints were made, only 359 were investigated during that year. Of these, 277 (359-82) related to RC material, 12 related to R material and 70 related to X rated material (table 3 of the ABA Report).
If RC/abhorrent material is excluded no more than 82 complaints relate to sexually related material. Further, of the sites the subject of complaints, only 22 were within Australia and therefore subject to jurisdiction (table 1 of the ABA Report). Given the ease with which a complaint can be made, the lack of any need for complainants to defend their complaint (complainants may even make their complaints anonymously) and the ready availability of this material evidenced by the quote from Senator Calvert above, at best these figures indicate an exceedingly mild concern within the community related to sexual material on the internet.
As ISPs are required to advertise the complaints procedure to all of their customers these low numbers of complaints cannot be ascribed to community ignorance of the complaints procedure.4 Nor can they be explained in terms of a small user community (in November 1999, Computer Industry Almanac reported that there were 6.8 million online users in Australia). However, they could be explained in terms of community satisfaction with the effectiveness of blocking software available for use with internet content as an appropriately balanced solution to protect children on the internet. If this were the case, the passage of the Act is not necessary to address community concern.
It is notable that there are some irregularites with the ABA report – see www.efa.org.au/Analysis/aba_analysis.html. This submission gives the report the benefit of the doubt in this regard. It should be emphasised that, because of the nature of the complaints system and the inability for a contrary position to be represented through it, a large number of complaints would not correlate with a high level of concern.
Note: A further report covering the 6 months to June 2001 was tabled in Federal Parliament on  February 2002 [sic - the report is announced by a DCITA media release of 13 February 2002 - http://www.dcita.gov.au/nsapi-graphics/?MIval=dca_dispdoc&ID=6190]. The figures in the most recent report are consistent with those in earlier reports and with the analysis above. In short, the major concern of the complaints is with abhorrent, rather than sexually explicit, material (table 2 of the February 2002 report) and predominantly complaints about this material is in relation to material hosted outside of Australia (table 1 of the report). We also note that the ABA received 26% fewer complaints in the 6 months to June 2002 than in the previous 6 month period (section 2.2.1 of the February 2002 report).
Criminalising “making available” greatly extends existing prohibitions
Currently, the classification of material as X or RC does not automatically make distribution of that material illegal. The Classification Act prohibits the sale or public exhibition of those materials and the Crimes Act prohibits publication (which includes distribution) of indecent articles (these classifications are not equivalent to indecency). However one of the prohibitions in sections 45C and 45D is “make available”. This is much broader than either of the previous prohibitions. For example, “publication” under the Crimes Act requires at least that a third person to receive the article, or that the article is offered for sale (section 478C). Existing prohibitions are particular about criminalising something akin to “making available” where that making available is in the context of sale or hire (these being offering for sale or hire in the definition of publication).
Problems with sections 45C and 45D
As discussed above, the term “making available” is unjustifiably broad. It will, on its face, capture circumstances where an individual makes available a collection of content, part of which is objectionable without realising that that part is objectionable. For example, where A grants access rights to their computer to B (or to the world at large) for a specific purpose, if B is capable of accessing objectionable content through that access, even if such an access is outside the explicit purpose for which access is granted, and even if B is not aware of that objectionable matter, or does not in fact attempt to access that objectionable matter, A will still be in breach of these sections through the “make available” catch all. A is exposed to criminal sanctions in the absence of any harm to society generally. Obiter and ratio in possess controlled substance related cases are likely to remove from A any ability to argue that they were not aware of the consequences of their action.
In the world of the future it will be normal for people to make material on their computers available to other people. This legislation will go a long way to effectively make it a crime to possess R or X material in an electronic form. This is contrary to the aims of the classification system, one of which is (subject to some provisos) that “adults should be able to read, hear and see what they want”.
The sections make no distinction between supply to adults and supply to minors. As such, they criminalise supplies from one adult to another of material online that would be legal if done off line.
The same material is treated differently by the legislation if it is supplied over an http or ftp (ie web) connection rather than by email.5 As a result, it is arguable that both of these provisions are easily subverted by creating an automated script to email objectionable material out in response to requests submitted over the internet.
The Act presents as a solution without a problem, and a solution which itself creates problems through the breadth of its application. The approach set out in the Act is engineered to be unresponsive to the reality of the internet. It will criminalise acts on the internet which would be legal “off line”. This area would benefit greatly from a considered and consistent review which takes into account existing prohibitions, the nature of the internet as a means of social interaction, and the realities of community activity and concerns. Such a review should be guided by the principle that what is legal offline should also be legal online.
Schedule 2 should be removed from the Act prior to proclaiming the Act. Alternatively, Schedule 2 should be reworked so that it applies only to material which it would otherwise be illegal to possess in New South Wales.
1 “The bill, sponsored by State Sen. Kimberly Plache, D, and Rep. Mark Gundrum, R, attacks what Plache said are "depraved people out there who get their kicks from secretly videotaping unsuspecting victims during their private moments.” www.newsbytes.com/news/01/171472.html.
2 Comments in Senate Select Committee on Information Technologies: Broadcasting Services Amendment (Online Services) Bill 1999: Discussion Date: 28 April 1999, at page 73 - search.aph.gov.au/search/ParlInfo.ASP?action=view&item=0&resultsID=21gkwv.
3 The Internet Censorship Act does not explicitly require the identity of the complainant to be disclosed (section 22(3) of Schedule 5 of the Act). However, there is a discretion for the ABA to require further information in section 22(4) and only Australian residents have standing to make a complaint (section 25). The ABA requests the name and contact details of the complainant (http://www.aba.gov.au/internet/complaints/complaints.htm) but the author is unaware whether the ABA requires this to be provided (ie is the complaint not acted on or recorded in statistics in the absence of this information).
4 According to the February 2002 report of the ABA, the ABA’s information indicates that all major ISPs are fully compliant with the codes (including the notification requirements) as are 85% of smaller ISPs (section 2.1.1 of the February 2002 report). See also section 2.3 of the February 2002 report on education initiatives.
5 There is debate on whether email is properly excluded from the ambit of the legislation. See Scott, B, An Essential Guide To Internet Censorship In Australia, available from www.gtlaw.com.au/pubs/essentialguidecensorship.html.