17 June 2005
Policy review concerning unauthorised access to and use of subscription broadcasts
Below is EFA's submission to the Commonwealth Attorney-General's Department in response to the policy review concerning unauthorised access to and use of subscription broadcasts.
Question 1: Should it be a criminal offence under Commonwealth law to access and use a subscription broadcast without authorisation of the subscription broadcast provider if it is accessed and used in a purely private and domestic context?
Question 2(a): Should it be a criminal offence under Commonwealth law for a subscriber to a subscription broadcast service to distribute a subscription broadcast or relocate reception
equipment within the subscriber's premises for purely private and domestic purposes?
Electronic Frontiers Australia Inc (EFA) is a non-profit national organisation concerned with the protection and promotion of the civil liberties of users of computer based communications systems and of those affected by their use. EFA was established in 1994, is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting civil liberties.
We appreciate the opportunity to make this submission in response to the "Policy review concerning unauthorised access to and use of subscription broadcasts". EFA's current level of resourcing and workload has meant that only a limited amount of time has been available for the preparation of this submission. Nevertheless, EFA is strongly opposed to the criminalisation of the types of private and domestic behaviour discussed in the Issues Paper.
EFA takes the position that unauthorised private and domestic access and use of unauthorised broadcasts should not be regulated by criminal law. Below, we set out our reasons for adopting this view. In respect of Questions 2(b) and 2(c) we make no comment (which should not be taken as support for criminalisation of the behaviour identified those questions). If you have any questions in regards to this submission, please feel free to contact us on the details above.
EFA submits that unauthorised private and domestic access and use of a subscription broadcast service should not be criminalised. In our view, if the proposed answer to a 'problem' is to criminalise the mere unauthorised watching of television broadcast in the privacy of the home, then the wrong questions are being asked.
EFA rejects the idea that this type of behaviour can or should be equated with concepts of stealing or theft. One of the key elements of theft is that it causes actual loss to the victim. Similarly, comparisons with offences related to taking electricity or gas without paying are misguided. Electricity and gas, whether provided by government authorities or private companies, are finite resources that are being used up by consumers (including consumers who dishonestly obtain those resources).
On the other hand, watching Pay TV without paying the market price to the provider does not deprive that provider of actual money or actual product. At most, it deprives them of a potential single instance of income (and, of course, the person may or may not have paid for the service if an unauthorised broadcast was not available). Whilst a large pool of potential paying customers is no doubt commercially valuable, it is EFA's view that the system needs fundamental reform if the criminal law has become the answer to the industry's concerns.
EFA submits that when approached with reference to the Criminal Law Guide factors identified in the Issues Paper it is clear that the private and domestic uses referred to in the discussion should not be the subject of criminal sanctions. Below, we address each of these factors in turn.
What is the nature of the conduct sought to be deterred
Several elements of the nature of the behaviour under discussion should be borne in mind. When the conduct takes place:
it takes place in the privacy of the home
multiple family members are likely to engage in the conduct
minors are likely to be involved
it is unlikely to be noticeable or detectable by government authorities
These considerations weigh against the use of the criminal law as a regulatory tool.
Does the conduct seriously harm other people?
The behaviour under discussion does not cause serious harm to other people. To say that it deprives the broadcast providers of income is not strictly accurate. Rather, unauthorised private access and use of a broadcast deprives the provider of a single opportunity of a potential paying customer. EFA believes that these notions of "opportunity" and "potential" are crucial. These types of "harm" should not be addressed through the criminal law.
Importantly, there is no actual loss suffered by the broadcast providers. There is no loss of money or product involved in unauthorised private access and use of broadcasts. When a person walks into a shop and steals a product that retails for $50, it may be true that the shop has suffered a $50 loss (or more accurately a loss equivalent to the wholesale price plus associated costs). However, when a person avoids paying a $90 broadcast subscription fee the provider has not suffered a $90 loss. At most, the provider has lost a single instance of a potential or opportunity to market or sell its service to that person (who may or may not have been willing to buy the service).
Does the conduct in some way so seriously contravene our fundamental values as to be harmful to society?
Whilst EFA recognises that the conduct discussed involves an element of dishonesty, we reject the notion that it is a serious contravention of society's fundamental values. To give some context to the issue, dishonesty is certainly important but it is not a universally applied concept. For instance, people are regularly "dishonest" about things that are personal or private to them, such as misleading others about their sexuality, age, income, motivations for doing things and so forth. Dishonesty alone is insufficient to justify the intervention of criminal law.
Is it appropriate to use criminal enforcement powers in investigating the conduct?
In EFA's view it is entirely inappropriate to use criminal enforcement powers and resources to investigate unauthorised private use of subscription broadcast services. This type of conduct takes place within the privacy of the home, is likely to involve minors, causes no actual physical or financial loss to the broadcast providers and raises no serious public interest aspect.
The use of criminal enforcement would be seriously problematic. How would a law criminalising private and domestic access to an unauthorised broadcast be enforced? Would we fund the Australian Federal Police to proactively track down broadcast access criminals? Would we establish "tip off lines" so that people can "dob in" neighbours whom they suspect to be illegally watching TV? Will the industry pursue private enforcement activities and carry out surveillance in the suburbs?
Is the criminal law appropriate for dealing with the undesirable conduct in question?
Again, it is EFA's position that the criminal law is not appropriate for dealing with unauthorised private and domestic access and use of subscription broadcast services. On the one hand, if such laws were not enforced, there would be no deterrent and the law would be brought into disrepute. On the other hand, if such laws were enforced, it would in our view be an abuse of criminal law and process.
Enforcing such criminal laws would target acts carried out in the privacy of homes that cause no physical harm and cause no actual financial loss. It would result in public resources and law being used to essentially enforce a right to an opportunity; that is, using criminal law to protect broadcast providers' right to an opportunity to sell their service. This is not an appropriate use of the criminal law.
As the Issues Paper acknowledges, criminal law is serious law. The idea of convicting and punishing individuals for certain forms of television viewing (unauthorised watching of Pay TV) must be rejected.
How is similar conduct regulated in the proposed legislative scheme and other Commonwealth legislation?
EFA reiterates its objection to unauthorised private and domestic access and use of subscription broadcast services being compared to theft and fraud. To identify how similar conduct is regulated, one must first identify what conduct is similar. One type of conduct that may be considered similar is unauthorised personal copying of a music CD which has a technological protection measure (TPM). This conduct is similar in that, like unauthorised private and domestic access and use of a broadcast, it involves:
unauthorised use of copyright material
purely domestic behaviour
potential loss of an income opportunity to the copyright owner
Bypassing a TPM to copy a music CD for purely domestic use (such as transferring the music to a portable listening device) is regulated by civil laws rather than criminal laws. Undoubtedly, the majority of Australians would oppose criminalisation of such behaviour and the same considerations apply to the behaviours currently under discussion.
EFA is not aware of any similar conduct that is regulated by the criminal law. In our view, the criminal law is not an appropriate response to these types of behaviour.
It should not be a criminal offence under Commonwealth law to access and use a subscription broadcast without authorisation of the subscription broadcast provider if it is accessed and used in a purely private and domestic context. Nor should it be a criminal offence under Commonwealth law for a subscriber to a subscription broadcast service to distribute a subscription broadcast or relocate reception equipment within the subscriber's premises for purely private and domestic purposes.
It is entirely inappropriate to subject these behaviours to the criminal law and criminal enforcement processes. EFA submits that there are better solutions to any perceived problems related to unauthorised private and domestic access and use of subscription broadcast services. It is beyond the scope of this submission to canvas these solutions, but we urge the Government to maintain its policy of restricting public enforcement to relevant commercially oriented activities.