PRINCIPLES FOR A REGULATORY FRAMEWORK FOR ON-LINE SERVICES IN THE BROADCASTING SERVICES ACT 1992
1. The Broadcasting Services Act 1992 (BSA) should be amended to establish a national framework of effective industry self-regulation for on-line service providers, supervised by the Australian Broadcasting Authority (ABA), in relation to content transmitted through on-line networks.
2. The regulatory regime should aim to :
(a) encourage on-line service providers to respect community standards in relation to material published by means of their service; and
(b) encourage the provision of means for addressing complaints about content published by means of an on-line services; and
(c) ensure that on-line service providers place a high priority on the protection of minors from exposure to material which may be harmful to them.
3. The legislation should encourage the development of self-regulatory mechanisms and in particular avoid inhibiting the growth and development of the on-line services industry by placing unreasonable regulatory constraints on the on-line services provider industry regarding the publication and transmission of material.
4. The legislation should codify the responsibilities of an on-line service provider in relation to objectionable content and other content that is of concern to the community accessed by means of the on-line service providers network.
Structure of regulatory regime
5. The structure of the regulatory regime for on-line service providers should be broadly consistent with the self-regulatory framework applying to broadcasters and narrowcasters under the BSA and that to apply to carriage service providers in the Telecommunications Act 1997.
6. The legislation should require a carriage service provider providing access on demand to a member of the public to an on-line service to comply with standard on-line service provider rules set out in the BSA.
7. The legislation should provide for a complaints mechanism under which
(a) regarding a matter set out in a code of practice, any person may complain initially to an on-line service provider, with provision for the ABA to adjudicate the complaint if it is not resolved by the on-line service provider;
(b) regarding breaches of the BSA or service provider rules, complaints may be made directly to the ABA.
8. Subject to principle 24(a) below, the legislation should not impose liability on on-line service providers with regard to content accessed by means of the relevant on-line service providers network where the on-line service provider is not responsible for the creation of that content.
9. An on-line service provider who is also acting as a content originator or end-user should be subject to relevant State and Territory laws applying to the publication and transmission of that material by means of an on-line service.
Defining "on-line service providers"
10. An on-line service provider will be a carriage service provider (as defined in the Telecommunications Act) providing access to a member of the public to an on-line service.
Persons not falling within the definition of "on-line service providers"
11. A content originator or end-user of an on-line service not providing access to that on-line service will not be an on-line service provider for the purposes of the regulatory regime.
12. A provider of network infrastructure (carrier) will only be subject to the regulatory regime applying to on-line service providers to the extent that they are also providing access to an on-line service.
Defining "on-line service"
13. An on-line service is a service that makes content accessible on demand to the public by means of a telecommunications network, whether or not the service is available for a fee.
14. The definition of an "on-line service" is intended to encompass only those on-line services with interactive capability, ie where the service allows the multi-directional transfer of content upon demand between an end-user and other end-users connected to the network.
15. The definition of a telecommunications network is that contained in the Telecommunications Act, ie a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.
16. The definition of a telecommunications network should be technologically neutral and cover on-line services provided by way of fixed links, radiocommunication links, satellite, fibre and cable.
Where a person is unsure which service they are providing
17. The legislation should include a provision modelled on current section 21 of the BSA to allow a person who is providing, or proposing to provide, a service regulated under the BSA to apply to the ABA for an opinion as to whether the service is an on-line service or a broadcasting service.
18. The ABA should have a power, modelled on section 19 of the BSA, to determine, by disallowable instrument, additional criteria or clarify existing criteria in relation to the definition of an on-line service.
19. "Content" includes material transmitted in the form of
(c) speech, music or other sounds;
(d) graphics or other visual images, whether static, moving or otherwise;
(e) software; and
(f) such other forms of content that are determined by the Minister by disallowable instrument.
Services excluded from the definition of "on-line service"
20. An on-line service should not include:
(a) a service which transmits material solely by facsimile or voice telephony;
(b) a service which is not accessible to the public, such as an intranet;
(c) a service which only carries private or restricted distribution communications such as e-mail messages;
(d) a broadcasting or narrowcasting service within the definition of the BSA; and
(e) such other services that are determined by the Minister by disallowable instrument.
Defining on-line service provider rules
21. On-line service provider rules are generic provisions in the BSA which apply to the conduct of all on-line service providers.
22. Additional on-line service provider rules may be determined by the ABA consistent with the objects of the BSA. Such determinations are to be subject to public consultation and to be disallowable instruments.
23. The ABA should not be able to determine an on-line service provider rule that requires an on-line service provider to receive prior approval from the ABA or any other body in relation to particular content (see section 129 BSA).
24. On-line service provider rules should include:
(a) that on-line service providers not knowingly allow a person to use their service to publish content that would be refused classification under OFLC guidelines or otherwise be illegal under a State or Territory law;
(b) that an on-line service provider not use an on-line service in the commission of an offence against another Act or a State or Territory law;
(c) that an on-line service provider comply with any standards determined by the ABA;
(d) that an on-line service provider comply with any additional on-line service provider rules determined by ABA.
Defining ABA standards
25. ABA standards are standards determined by the ABA that are to apply to on-line service providers or a sector of on-line service providers in relation to matters to be covered by codes of practice where a code of practice fails or no code has been developed. Such determinations are to be subject to public consultation and to be disallowable instruments (see section 122 BSA).
Codes of practice
26. The legislation should encourage groups representing the on-line service provider industry to comply with codes of practice formulated by the industry in conjunction with the ABA and other relevant bodies in relation to matters set out in the legislation (see Part 6 of the Telecommunications Act and section 123 of the BSA).
27. The ABA may define industry sectors for the purposes of registering codes of practice.
28. A code of practice may apply to the whole on-line service provider industry or an industry sector.
29. The ABA must register a code of practice for the industry or an industry sector where it is satisfied that the code provides appropriate community safeguards and there has been consultation on the proposed code, provided that no previous code of practice has been registered for the industry or that specific sector.
30. No more than one code of practice is to be applicable to any on-line service provider.
31. Where a complaint is made regarding an on-line service provider (see principles 38-42) who is not a member of an industry group that has developed a registered code, the ABA may declare a registered code that is to apply to that on-line service provider. Such a declaration is to have no effect until the affected on-line service provider is notified.
32. The ABA may request a body or association representing a particular sector to develop a code of practice in relation to a particular matter or matters to be applicable to that sector.
33. If the request referred to in principle 32 is not complied with within a specified period, the ABA may determine an ABA standard about the matter or matters to apply to the specified sector of service providers.
34. The ABA may determine a standard on a particular matter or matters where the ABA is satisfied that an existing code does not provide appropriate community safeguards on the matter. Before determining a standard in these circumstances, the ABA must request the body or association that developed the code to address the deficiencies in the code.
35. The ABA should be required to seek public comment before determining a standard on a particular matter (see section 126 BSA); ABA determined standards are to be disallowable instruments.
Matters contained in codes of practice
36. The BSA should set out matters to be addressed in codes of practice, without limiting the matters to be covered, subject to principle 37. The matters which may be covered by codes of practice include:
(a) reasonable procedures to prevent the on-line publication of content that would be refused classification, in particular:
(i) the removal of material that is or would be refused classification under OFLC guidelines or otherwise be illegal under an applicable State and Territory law from the on-line service providers system where the relevant on-line service provider is made aware of the existence of the objectionable material being hosted on their system; and
(ii) to encourage a service provider who is made aware of material that is or would be Refused Classification under OFLC guidelines or otherwise be illegal under an applicable State and Territory law hosted by another service provider to notify that service provider of the existence of that material;
(b) ensuring that on-line service providers encourage content providers to display appropriate warnings on material that would be classified unsuitable for minors under OFLC guidelines;
(c) means to ensure on-line access by minors is with parental or other supervisor permission;
(d) information for content originators in relation to their responsibilities under relevant Commonwealth, State and Territory law;
(e) methods for the handling and resolution of complaints from the public about content accessed on-line (including reasonable procedures to deal with complaints concerning material originating outside of Australia) or compliance with other matters contained in the code of practice;
(f) the development of an Australian on-line labelling scheme;
(g) the provision of adequate information to users concerning the availability, application and appropriate use of content filtering software;
(h) such other matters relating to on-line content as are of concern to the community.
Matters excluded from codes of practice
37. Codes of practice should not encompass carriage service issues covered by the Telecommunications Act.
38. The complaints procedure should be modelled on current Part 11 of the BSA.
39. Any person may complain to an on-line service provider in relation to a breach of a registered code of practice.
40. If the relevant on-line service provider does not reply to a complaint within the specified timeframe or does not provide a satisfactory response to the complaint, the person should be able to request the ABA to investigate the matter.
41. Where so requested, the ABA should be required to investigate the complaint, except where the complaint is frivolous or vexatious, or where the on-line service provider has already taken remedial action.
42. A complaint relating to offences under the BSA or a breach of an on-line service provider rule may be made directly to the ABA.
Breaches of on-line service provider rules and codes of practice
43. The legislation should provide that it is an offence to breach on-line service provider rules and that a person who continues to breach the service provider rules is guilty of a separate offence for each day the breach continues (see section 139 BSA).
44. The ABA should be allowed to issue a notice directing an on-line service provider to take action to ensure that the service is provided in a way that conforms to standard service provider rules or a registered code of practice. Failure to comply with such a notice is to constitute an offence. (see sections 141 and 142 BSA)
45. If the ABA is satisfied that a person is providing an on-line service other than in accordance with on-line service provider rules, the ABA should be able to apply to a court for an order requiring the on-line service to cease, or to be suspended for a specified period (it is intended that an application to a court by the ABA would only be made in extreme circumstances). The ABA should be able to seek that the court apply a cessation or suspension order to an individual or group of individuals and their associates or to an incorporated body, its directors and their associates.
Role of ABA
46. The legislation should give the ABA the following discretionary powers and functions in relation to the regulation of on-line services:
(a) giving an opinion as to whether a service or a proposed service is a broadcasting service or an on-line service for the purposes of the BSA;
(b) determining additional criteria or clarifying existing criteria in relation to the definition of an on-line service;
(c) determining additional on-line service provider rules;
(d) determining ABA standards;
(e) registering industry codes of practice;
(f) defining industry sectors or classes of on-line services for the purposes of registering codes of practice.
(g) declaring that a particular registered code is to apply to a particular on-line service provider;
(h) issuing notices directing an on-line service provider to comply with a service provider rule or code of practice;
(i) applying to a court for an order of cessation or suspension of a service where an on-line service provider is in breach of on-line service provider rules;
47. In addition, the ABA will:
(a) monitor the operation of codes of practice, including ensuring that any registered codes provides appropriate community safeguards and advises of the options available to users, parents and guardians for the protection of minors from material which may be harmful to them;
(b) investigate and resolve complaints concerning compliance with registered codes of practice where an on-line service provider has either failed to respond to a complaint from a person or where a person considers the response from an on-line service provider to be unsatisfactory;
(c) investigate complaints relating to breaches of on-line service provider rules;
(d) exercise its functions and powers in relation to on-line service providers in a manner consistent with the objects, regulatory policy and the role of the ABA (as amended to include on-line service providers) set out in sections 3, 4 and 5 of the BSA
(e) co-ordinate community education programs in relation to on-line services, in consultation with relevant industry and consumer groups and government agencies;
(f) conduct or commission research into issues relating to on-line services;
(g) liaise with other regulatory bodies internationally regarding co-operative arrangements for the regulation of on-line services, including collaboration on the development of multilateral codes of practice and the development of on-line content labelling techniques.
Original page located at: http://www.dcita.gov.au/cgi-bin/trap.pl?path=1019
ID: 1019, Last updated: 1997-08-13 09:00