EFA RESPONSE

TO THE

Internet Industry Association
(IIA)

INTERNET INDUSTRY CODE OF PRACTICE
Publication for Adoption Version
(Version 4.2)
- 12 February 1999 -


1. EXECUTIVE SUMMARY

1. EFA believes the IIA Code to be in need of extensive modification if it is to provide consumer and privacy protections necessary to promote Australian e-commerce.

2. The Code wrongly requires ISPs, Content Providers and ordinary users to adopt controversial and discredited labeling technologies, to "guess" as to classification categories and to risk losing Code Compliance if they fail to do so.

3. Definitions within the Code are careless and vague. The new term "to make available" has been used to avoid logical inconsistencies with the word "publish", but in doing so it has reopened liability on the part of ISPs for a user's content, and criminalised hyperlinks.

4. The Administrative Council is too narrow in composition and there is inadequate input from consumer groups and Content Providers. The Code wrongly gives the important position of Chairperson to a Government nominee, a concession not granted by any other professional or trade union.

5. IIA is urged to consider the catastrophic effect of deregistration in the context of harsh ABA licencing requirements or criminal law defences based on Code compliance. Rather than support content regulation through contract, IIA should stand firm on the proposition that ISPs require a Federal indemnity against liability for a user's content.

6. The Code attempts to cover both Internet Access Providers and commercial content providers under one Code, which leads to many inconsistencies.

7. The Code has been issued in haste, and it is unreasonable to require ISPs to sign it until:
- the Federal laws establishing a self-regulation framework are even before Parliament;
- the advertising code of practice has even been written;
- the consumer representative on the Administrative Council has been appointed;
- the ACIF code has been drafted;
- there is consensus amongst ISPs as to the appropriate advice to parents about PICS;
- the Relevant Authorities have been determined by State and Federal law;
- the National Classification Code includes Internet content;
- the laws supporting the Privacy Principles have been passed;
- the spamming provisions have been re-written ; and
- the Internet community has been afforded proper consultation.


Index to comments on particular sections of the code:

2. INTRODUCTION

The Internet Industry Association is a self-appointed representative of the various businesses involved in the provision of Internet bandwidth and local content. The IIA has been lobbying the Federal Government to be declared the approved industry association providing an industry Code of Practice for Internet Service Providers for the purposes of the "three-tiered" plan for regulation of the Internet outlined in the Federal Government's 1997 statement.

Briefly put, the "three-tiered plan" involves regulation of the Internet as follows:
(a) The Federal Government will exempt ISPs from the application of State content rules if they comply with an Industry Code of Practice acceptable to the Australian Broadcasting Authority.
(b) State and Territory governments will legislate to ban hosting and posting of certain types of material, and set restrictions on material unsuitable for children.
(c) The approved ISP association will require its members to rate content, to block access to "unsuitable" material from minors, to block access to restricted material and will police its own members.

This plan has not been supported by the States and Territories to date. Victoria, Western Australian and the Northern Territory have enacted conflicting Internet censorship legislation and so far the Senate has recommended further restrictions (although two dissenting reports by Democrat and Labor Senators must raise doubts as to the ability of the present Government to pass illiberal legislation).

After 18 months there is no indication when, if ever, the Federal Government will proceed to legislate and what will be required of ISPs. Other industry associations, such as WAIA, SAIA and TIA, have other Codes of Practice which could be capable of registration under an amended Broadcasting Services Act, giving ISPs a choice of Codes.

IIA has released a number of revisions to its Code, and each time has responded to criticisms by the Internet community by redrafting the Code. The present version (4.2) is the third "for adoption" version, and several major ISPs have signed the Code. Perhaps more importantly, many hundreds of ISPs in Australia have not and will not sign this Code.

IIA may be operating under the sincere but misguided notion that only by out-censoring the censors will the industry avoid even more illiberal legislation being forced on the Australian Internet - but the threat of imminent, "clueless" legislation is growing weaker. Senator Alston, the Minister for Communications, has stated publicly that Australia will not "go it alone" on Internet regulation, and the collapse of American attempts to ban restricted material has given the strong impression that Internet censorship is a lost cause. Realistically, police are successfully combating terrorism and child pornographers without international Internet censorship, and many will agree with President Clinton's assessment that parents will have to take responsibility for the material their children access on the Internet.

The Federal Government has also indicated that it is Government policy that material accessed in private homes is not to be subject to censorship as stringent as that applying in cinemas and public places.

It is strongly arguable that accessing material on the Internet involves as conscious a choice in the case of adults, and parents have the option of password-protecting a home computer against unauthorised access by children - an option not available for home videos. There is no confirmed evidence that the Federal Government envisages restrictions on the Internet to be more severe than restrictions on adult videos, yet IIA has proposed a Code of Practice that is more censorious than the video standard.

It is not Government policy that ISPs should police the Internet. The Attorney-General, Daryl Williams QC, stated in a letter to The Australian newspaper printed on the 17th November 1998:

EFA submits that IIA's plans to censor the Australian Internet is more restrictive than the policy of the present Government, and questions why IIA considers it appropriate to "forestall" more censorious legislation when in fact no such plans exist.

For the time being, censorship of Internet content as required by the IIA's Code remains the only imminent threat to free speech on the Internet in Australia. The provisions of the IIA Code are more censorious than any Government could or would enforce - and the requirements of adhering to the IIA's peculiar fascination with labeling and rating systems would be onerous to ISPs and their users. Obeying the IIA Code would be at huge cost for ISPs - not only would there be the need to consult professional experts to classify content, but also a reduction in business as content providers and users go offshore to avoid those requirements.

3. THE CODE

During the months of January and February 1999, the "for adoption" version of the Code version 4.0 was the subject of considerable debate within the Internet community. First, a revolt by IIA members over the spam provisions (clause 11.5 and 11.6, and the failure to define spam or acknowledge the work of CAUBE.AU), then a harrowing debate on influential mailing lists led to an acknowledgement by IIA that the Code was not yet suitable "for adoption" in the view of significant numbers of Internet Service Providers.

Two IIA Board members have specifically requested EFA's input on the wording of the Code. In doing so, EFA does not endorse the Code nor the legislative framework that would make it compulsory for ISPs to adopt it in order to avoid prosecution. While there is an important place within the Australian Internet community for organisations representing the interests of ISPs, ultimately the interests of users of the Internet are better promoted by groups which represent their similar but different interests. A Code of Practice would be much more relevant to the needs of the total Internet community if it addressed rights of users to:

(a) satisfactory standards of service
(b) freedom of expression
(c) commitments to user service
(d) promotion of Australian content
(e) security assurances
(f) verifiable billing methods
(g) reasonable terms and conditions of access.

It is noted that IIA has committed members to adherence to the (as yet unwritten) Australian Communications Industry Forum code on ISP's terms and conditions of service. In the meantime, the IIA Code is deficient in this area. By contrast, the Western Australian Internet Association has released a model Internet Access contract for use by its ISP members which provide consumer protection measures and guidelines for ISP "best practice".

EFA calls upon IIA to enter into discussions with privacy advocates, user groups and consumer organisations to develop Code provisions that would remove the need for regulation of the ISP industry by Government in relation to consumer issues. The scope of self-regulation includes developing industry principles to safeguard the interests of content providers and users, and only at the conclusion of such a process could EFA support an ISP Code of Practice.

It should further be noted that some IIA members, particularly those that wholesale bandwidth to small ISPs, have been including within their terms and conditions of Internet Access the obligation to require "downstream" users to censor content and acknowledge dubious disclaimers of liability allegedly protecting the Provider. One of the principal difficulties of portions of the Code requiring its ISP members to "encourage" behaviour on the part of users is that certain ISPs will put tough terms and conditions into Internet Access contracts with a view to ensuring that they accept the "encouragement". Thus, a provision that ISP members should "encourage" users to label content swiftly becomes compulsory when the ISP member makes it a condition of access.

For this reason, EFA must take a firm position against propositions in the Code which, if vague or ambiguous in an attempt to mollify criticism from censors and users, may nonetheless be used by ISPs and Government to justify compulsion. A clause in the Code requiring ISPs to encourage, advise or persuade users to act in a certain manner may be interpreted by ISPs or regulatory agencies such as the Australian Broadcasting Authority as a positive obligation, to be a requirement of the Internet Access contract terms and conditions.

It remains EFA's position that the IIA Code wrongly assumes that the draft framework for Internet "Self-Regulation" announced by the Federal Government is an imminent fact, and that the main raison d'être of the Code is to control and label content. EFA does not concede that the Australian Parliaments will attempt to do the impossible, which is to say sanitise and censor the Internet from Canberra. Government policy is still under development, and it is quite likely that it will not be required of Australian ISPs that they submit to burdensome labeling and censorship legislation through one industry code. EFA believes that, with the collapse of the American censorship legislation, the tide has turned against Internet censorship as the Governments of the world come to realise that it is not possible to censor a global network from any individual nation-state.

However, the current draft of the IIA Code is under review and EFA considers it is necessary to assist in the development of a better Code and to make comment on the clauses as they are presently written. Essentially, EFA considers it is time that IIA recognise that labeling technologies are highly controversial, and should not in any way be compulsory. As such, much of the Code that relates to ratings, classifications and Illegal Content needs extensive amendment.

EFA's comments on the Code follow :

      1. PREAMBLE
      1.1  The Internet Industry Association ("IIA") set about the 
           development of this Code of Practice (ĎCode") in order to 
           provide the rapidly developing Internet Industry with a 
           description of widely agreed standards of behaviour. Initially 
           the churning of customer accounts by under resourced ISPs 
           motivated the Association to develop the Code. However,
           it became clear that a code was needed to help balance the 
           responsibilities of Government and Industry.
This is a judgment, and a highly controversial one. Bearing in mind that self-regulation under threat of Government intervention vitiates consent, it remains unclear why the authors of the Code have opted for industry self-censorship - especially when self-censorship is not even an objective of IIA :
      Why Join IIA?
      1.   Because you believe in its objectives:
      IIA's objectives are:
      *   to promote and facilitate the growth, technical development 
          and efficient functioning of the Internet in Australia as an 
          open system.
      *   to promote diversity and connectivity on the Internet by all 
          reasonable means including but not limited to:
          a)  encouraging many and diverse independent Internet providers, 
              resellers and users in Australia;
          b)  promotion of open architecture network and packet protocols 
              that are independent of hardware and operating systems;
          c)  working to ensure that all government agencies distribute 
              public information equally to all Providers in a single open 
              architecture file format independent of hardware and operating 
              systems;
          d)  promoting orderly and co-ordinated interconnectivity for open
              architecture TCP/IP networks that fully comply with the 
              Internet Engineering Task Force (IETF) and Internet 
              Architecture Board (IAB) standards and any RFC specifications
              which they adopt;
          e)  opposing monopoly control of Internet content, and;
          f)  opposing discriminatory tariff pricing of telecommunication 
              services.
      *  to promote use of strong and diverse encryption algorithms on the 
         Internet;
      *  to promote laws which facilitate unrestricted and open use of the 
         Internet;
      *  to sponsor and co-ordinate the creation of independent organisations 
         to service and regulate the Internet;
      *  to educate the public regarding the Internet and promote the 
         Internet to the community;
      *  to foster, promote, assist and conduct research into Internet and 
         associated technologies;
      *  to develop and promote basic technical and business practice 
         standards for Members;
      *  to establish and maintain relations with bodies having similar 
         objects elsewhere in Australia or overseas;
      *  to take steps including private meetings, public meetings, 
         representations to Parliament and other bodies as may
         be deemed expedient to promote any of the objects of IIA
      *  to raise money to further the aims of IIA and to secure sufficient 
         funds for the purposes of IIA;
      *  to do all things incidental or conducive to the attainment of all 
         or any of the objects of IIA

The authors of the Code have taken it upon themselves to require content regulation without a specific constitutional objective to do so. While this is not the only reason for ISPs and IIA members to reject the content provisions of the Code, it is plain that an "omnibus" Code designed principally for ISPs cannot adequately deal with the needs of content providers.

A content provider Code of Practice may be a good thing, if designed by commercial Content Providers for the use of news and entertainment sites. However, it is unlikely that ratings and labeling would be part of such a Code either - news organisations have refused to "guess" what the daily news "would be" rated by the Government, and even so-called "adult" sites cannot be expected to know the laws applicable to controversial content in every State and Territory.

There are too many sectional interests to expect the needs of Content Providers to be addressed in the same Code as ISPs. Similarly, Content Providers on the Internet target niche markets that will have varying requirements as to billing practices, authentication, security, authority and licences to give information. It is conceivable that there are too many "industry sectors" to have all Content Providers under one Code, especially if the IIA Code carelessly defines all ISPs and users as Content Providers.

      1.2  Specifically, by agreement with government matters have been 
           dealt with in the code as a substitute for statutory intervention
           or as part of a scheme that reduces the role of legislation.
           Issues of content control, fair e-commerce, privacy and
           regulation of specific industries such as gambling and securities 
           trading have all been the subject of consideration.
Content labeling requires legislation if it is to be the compulsory cornerstone of Federal Government classification of Internet content. The IIA Code is only of legal relevance if legislation is passed making membership compulsory. A Code which genuinely sought to reduce statutory legislation would restate the existing legal requirements, which in the submission of EFA represent all that can or should be done to censor the Internet. Laws of general application effectively deal with the crimes that matter, such as child pornography and terrorism, and all other attempts to impose national standards on a global medium are futile.

All the matters discussed in clause 1.2 are beyond the power of ISPs to control, and no amount of window-dressing by IIA can conceal the reality that ISPs are access providers, not content providers. If IIA wishes to self-regulate ISPs, the only matters for consideration arise from the technical issues of purchasing bandwidth and reselling it.

      1.3  In preparing the code IIA has had close regard to international 
           standards, a wide range of existing and related codes, Australian
           Standard AS-4269-1995, the Ministerial council of Consumer 
           Affairs Guide to Fair Trading Codes of Conduct, regulatory 
           schemes in related industries, integration with Privacy 
           Principles and ACIF Codes.
With all due respect, there is little evidence of this. The IIA Code gives no proper protection for users of the Internet other than the ISP's own customers; and gives Internet users no redress procedures for privacy compromised. The IIA Code deviates substantially from other Australian ISP codes of practice in requiring censorship and labeling. There are no consumer safeguards in relation to standards of service or billing details, no protection from the looming ISP requirement that users provide Caller Line Identification and ultimately little evidence of consultation with user groups, privacy advocates or consumer organisations. The users, not the Government, are the stakeholders in this Code.
      1.4  IIA has also endeavoured to make this code consistent with 
           the OECD Guidelines on the Protection of Privacy and Trans-border
           Flows of Personal Data, the OECD Draft Recommendation of the 
           Council Concerning Guidelines for Consumer Protection in the 
           Context of Electronic Commerce (http://www.oecd.org) the 
           UNCITRAL Model Law on Electronic Commerce 
           (http://www.un.or.at/uncitral/english/texts/index.htm)
Those URLs do not direct to the documents referred-to. While this can be easily remedied, it should be remembered that Governments will incorporate this Code into regulations, and it may be important as to whether URLs remain static addresses. It may be preferable in a Code of this type to incorporate documents by annexure, especially if they impose rules.
      1.5  In relation to content control, IIA recognises that the 
           Internet should provide a means to enable control of access 
           to content while acknowledging it is impractical to filter all 
           Internet content. Accordingly, IIA endorses methods by which 
           content can be recognised and possibly excluded by content 
           filter technologies as the most practical means of empowering
           responsible adults to control access to the Internet to 
           determine appropriate controls on content.
This is a contradictory paragraph. While acknowledging that filtering isn't effective, IIA members must endorse its use. This central contradiction has led to ambiguous obligations elsewhere in the Code, which essentially require ISPs to pretend that labeling and rating technologies are workable.

EFA opposes labeling and rating systems for simple reasons:
(a) They don't work as advertised;
(b) They block 99% of content if used as recommended (blocking non-rated sites);
(c) They don't block more than a tiny fraction of controversial content in normal use (blocking by keyword or URL); and
(d) They mislead parents and educators into a belief that supervision of a child's use of the Internet is unnecessary.

Even if it is a matter of debate that software filters have so far failed to deliver, there is a considerable body of informed opinion that has determined this. Unless the IIA is being deliberately divisive, it should acknowledge that the use of software filters is controversial within the ISP industry and there are a large number of ethical ISPs who will never recommend to parents that they delegate parental responsibility to a computer program.

Note also that "all Internet Content" includes material that is not accessed by web browsers - and to date there is no "filter software" for ftp, email or IRC. Concentration on censorship of the Web is likely to become an anomaly of history as new tools are developed to operate over the Internet.

      1.6  The first draft of this Code of Practice was posted
           on the Internet for public comment in February of 1996. This 
           "For Adoption" version is in fact the fourth redraft of that 
           original Code. It is the result of three rounds of drafting, 
           posting for public comment, writing to specific organisations 
           requesting comment, review and redrafting. The Code will 
           continue to evolve.
IIA did not open the debate widely enough, as was illustrated by the uproar among Australian ISPs and users when the Code was announced. The [email protected] mailing list should have been the principal forum for consultation with the online community - yet in fact the draft was redrafted by IIA without even that measure of consultation. It appears that the [email protected] mailing list is inoperative at time of writing.

Version 4.0 was the "for adoption" version, but has already been modified twice. EFA calls upon IIA to suspend the operation of the Code until there has been broader consultation. There is no urgency in relation to content regulation - at this time the Federal-State consensus necessary to bring in the proposed Federal Government framework for "three-tiered" regulation of the Internet by Federal laws, State and Territory laws and the ISP industry is many months away.

      1.7  The Code is administered by an Administrative Council
           as provided for in Clause 15 of this Code. of the industry 
           who choose to adhere to the Code may indicate that they have 
           adopted the principles of the Code by use of the 
           "Code Compliance Symbol" endorsed by the Administrative
           Council from time to time.
Unfortunately, this confines the benefit of Code Compliance, which may be needed as a defence to criminal charges, to financial IIA members. Never was a trade union so rewarded by Government! Other professionals are not required to join a trade union, and ISPs may still need to be "licenced" by Government through amendments to the Broadcasting Services Act giving the Australian Broadcasting Authority jurisdiction over ISPs. EFA calls on IIA to consider carefully its concessions to Government which may have the effect that Code Compliance is required by content providers large and small.
      2.  OBJECTIVES
          The aims of this Code include:
          (a) to establish confidence in and encourage the use of
              the Internet.
It's unlikely that the public will gain much confidence from a Code which shares Senator Harradine's myopia about "unsuitable" content. IIA should be prepared to take a stand for the proposition that the Internet is an adult medium with a huge variety of content, and ISPs are not content providers. The nearest analogy for the Internet is the telephone, not the television.
          (b) to support systems for the classification of content
              on and management of access to content on the Internet 
              including, without limitation, resource discovery schemes 
              and metadata systems.
Classification of content is a pipe dream. Context is the missing technology - the ability to discern between a medical library and a pervert's photo collection is a simple example. It may be highly desirable for IIA to promote development of search engines, and this is at least an aspiration consistent with IIA's objects of association.

This clause should be changed to read :

Content regulation is not an achievable end, and its endorsement in this Code is contrary to the legal interests of ISPs. A settlement of a defamation action by a Melbourne ISP in 1998 illustrates the dangers in ISPs accepting any liability for the actions of users. The calls for Internet censorship are best answered by the Industry developing search-retrieval methods to assist all users to quickly access appropriate material. Existing content classification (rating and labeling) systems do not assist users to locate appropriate material, they merely block access after material has been located.
          (c) to improve the fairness and accuracy of disclosure
              to users of the Internet and the community in general.
There isn't yet evidence that this has been a drafting priority. The users are told what to do, but have not been told the truth about rating systems. Much work is required before this objective has been realised.
 
          (d) to provide standards of confidentiality and privacy
              afforded to users of the Internet.
Only customers of the ISP have any protection under the Code - presumably the visitors to web sites hosted by ISPs can be data-matched without limitation. It is important for IIA to recognise that users of the Internet generally have privacy expectations of ISPs.
 
          (e) to provide a transparent mechanism for complaint
              handling for the Internet industry and ensure that 
              complaints against Code Subscribers are handled in a 
              fair and efficient manner.
There is no jurisdiction apart from complaints about unsuitable or illegal content, of which only 2% is located within Australia. Complaints on service issues must presumably go to the Telecommunications Industry Ombudsman at a high cost to small ISPs, simply because IIA has failed to give itself a jurisdiction to mediate upon those types of complaints. Statistics from WAIA, as reported to the Senate Select Committee, were that all complaints to that ISP organisation involved billing or service issues. If the IIA Code concentrates on content issues, it will be irrelevant to the consumer.
 
          (f) to improve user relations by the Internet industry.
There's little in the Code to indicate this has been a drafting priority. There are no requirements on ISPs other than time limits for responding to consumer complaints. This is an important area for the next redraft to address.

It is also hard to see how requiring ISPs to enforce the Government's censorship notions will improve user relations. ISPs are not qualified to be censors, nor should they bear the ill-will from users that would arise from becoming censors. Noted privacy advocate Roger Clarke is on record as proposing that users boycott ISPs that censor content, and EFA would agree that ISPs that censor content should be identified as a guide for consumers. Many ISPs do not agree with censorship, and would not wish to alienate their users through unqualified attempts to comply with the IIA stance on rating, labeling and passwording controversial content.

      3. PRINCIPLES
         In seeking to achieve its objectives this Code applies
         the following principles:
         (a)  there should be "electronic equivalence" i.e. behavior and 
              transactions that can take place in the real world should
              be possible over the Internet without additional requirements 
              or restrictions.
The central fallacy of this is that voice communications over the telephone, fax communications and video conferencing are scarcely regulated at all, as laws of general application cover all conceivable crimes. There is no reason why Internet data communications should be treated differently.
         (b) the Code should be technology neutral.
There is a significant technological difference between publishing online and offline. Online "publication" should be specified to uploading content as opposed to linking to it. It's not useful to compare chatline conversations with films, novels and computer games. The Code is very web-oriented, with all content regulation applying to web sites - inviting a technological imbalance which could be easily addressed by using other or new Internet access tools. The web browser is only a convenient "front-end" for accessing the Internet, older tools such as gopher, "talk", ftpmail and the Windows basic Internet programs all bypass filter software.

Firm controls on web sites merely invite other Internet tools to develop, and the use of web browsers that evade restrictions. "The Internet treats censorship as damage, and routes around it". It is not a useful outcome if the Australian Internet becomes tilted away from web browsing because it is easier to provide and access data by other means.

         (c) requirements should be fair to all concerned.
An obvious comment is that the Code discriminates against ISPs that deliver their own content, or allow their users to host web sites. The public interest, and the interests of the user community, have been ignored. The interests of Content Providers (as defined in this Code) has been utterly surrendered.
         (d) requirements should not adversely affect the economic
             viability of the parties to the Code and the services they 
             make available.
The ability to trade without being an IIA member, and the ability to avoid prosecution for the conduct of a user, are crucial to the economic viability of ISPs. The requirements that ISPs censor their users, submit to "upstream" content restrictions and discourage material legal for mature adults are crucial to the economic viability to ISPs.

"Adult" material is one of the few options for successful e-businesses, and Australians should have the option to place legal material online without onerous restrictions such as age verification - restrictions that impede the end-user and would make Australian sites uncompetitive. The US Supreme Court heard conclusive technical evidence that age verification is not possible for an ISP, and it affects the economic viability of an Australian Content Provider to require them to do the impossible.

The requirement to classify content will be costly - cost-recovery by the OFLC results in hefty fees to get the OFLC to rate a book, a film or a computer game. It is doubtful that a commercial operation which provided rating of the Internet (something no government agency is authorised or qualified to do) would charge any less. This would chill "borderline" expression, and place a burdensome economic cost to any site with considerable content. How a service would "rate" IRC, web chat sites or Usenet newsgroups on a daily basis remains to be seen, but it will cost a Content Provider (or an ISP unsure of its legal responsibilities) a high price to find out.

         (e) the responsibility for content made available on the
             Internet rests with the relevant Content Providers.
There is no definition of "made available". A link is not a re-publication, and a Content Provider has no control over "active content" such as a news headlines service or banner advertisements.

Given the careless definition of "content provider" below, which makes every user and every ISP a "content provider" for the purposes of regulation under this Code, this actually invites a legal liability on the part of ISPs for the content of its users - one arising not through operation of statute law but one arising through adherence to this Code. This outcome was criticised in version 2 of the Code in relation to the then definition of "to publish" and has now returned as a serious drafting error owing to the careless use of the term "to make available".

         (f) the privacy of usersí details obtained by Code Subscribers
             in the course of business will be respected.
Note objections to the restrictive definition of "user" below, which precludes privacy rights to persons other than the customers of an ISP. Also, the proviso "in the course of business" is apparently intended to limit user privacy - meaning that ISPs can use information at will if obtained otherwise , such as by inadvertance or by system error.
      4. TERMINOLOGY
         In this Code:
         "Administrative Council"  means the Administrative Council 
                                   described in clause 15 of the Code.
         "Code"                    means this Code of Practice.
         "Code Compliance Symbol"  means the symbol approved by the 
                                   Administrative Council from time
                                   to time as indicating agreement to 
                                   comply with the Code.
This protection against liability for a user's conduct is only available for financial members of IIA who agree to censorship and labeling.
         "Code Subscriber"         means:        
                                   * each member of IIA, and
                                   * each person who has been approved 
                                     by the Administrative Council the 
                                     Code Compliance Symbol.
Elsewhere the term "Code Subscriber Content Provider" is used, as an uncertain distinction. If the intention is that only commercial content providers are to be covered by content self-censorship and labeling, reference to a separate Code of Practice for (Adult) Content Providers could remove all uncertainty.
         "content"                 means all forms of information and, 
                                   without limitation, includes text,
                                   pictures, animation, video and sound 
                                   recording, separately or combined,
                                   may include software and includes a 
                                   "Content Service" within the meaning
                                   of the Telecommunications Act (1997).
This is quite unnecessary in an ISP code. To an ISP, "content" is measured in bytes and distinguished only by port number. The first step in ridding this Code of the unnecessary baggage of censorship is to stop thinking of the Internet as a type of cable TV.
 
         "Content Provider"        means a person who makes available the 
                                   content of a Web Site or database on
                                   the Internet and includes:
                                   * advertisers
                                   * information providers
                                   * Vendors
                                   * A "Content Service Provider" within 
                                     the meaning of the Telecommunications 
                                     Act (1997) but not a person who simply 
                                     provides an automated general-purpose 
                                     search engine, catalogue or directory 
                                     service or similar automated service.

Perhaps IIA could state who does not meet this vague and careless definition of Content Provider. It could include Telstra and the electricity company. Previous drafts of the Code had problems with the word "publish" in this context, but its replacement by the term "make available" is folly. It would include any facilitator of access to content, including the ISP and anyone linking to the web site in question. Every user with a web page "makes available" content, and every user's home directory now incriminates their ISP. Sloppy drafting, and one which could see ISPs having clear-cut legal liability for a user's content.

         "filter"                  means to deny access to a Web Page or 
                                   other Internet content.
A fancy word for "block", and one which therefore conceals that denial of access to a Web Page invites the use of contrary measures such as dynamic IP addresses, mirroring, misdescription and alternative Internet access tools. ISPs know that the only impact of a "refused access" list is higher load on the system, to the end-user a range of options to sidetrack a blocked web page exists. At present, they are mostly undocumented because so few web sites are blocked - in the event the practice became widespread then the tools for circumventing blocks will become widely known and more transparent to the end-user.
         "Home Page"               means in relation to a Code Subscriber, 
                                   a Web Page used by the Code Subscriber
                                   as the starting point for users to 
                                   obtain information regarding products
                                   or services of
                                   the Code Subscriber.
          "Internet"               means the public network of computer 
                                   networks known by that name which
                                   enables the transmission of information 
                                   between users or between users and a 
                                   place on the network.
         "IIA"                     means the Internet Industry 
                                   Association (ACN 071 075 575).
         "ISPs"                    stands for Internet Service Providers 
                                   and includes:
                                   * those providing connectivity to the 
                                     Internet.
                                   * those hosting Web Pages for users.
                                   * "carriage service providers" within 
                                      the meaning of the Telecommunications
                                      Act (1997) who provide access to the 
                                      Internet.
Hosting services, which may have only commercial data storage facilities of their own, ought not be grouped with vendors of Internet access. There may not be as much control of content by a commercial hosting service as the Code seems to imply.
         "Newsgroup"               means a public discussion group forum 
                                   within Usenet.
Unnecessary, since there is nothing in the Code about Usenet. It is not surprising that Usenet is omitted, since all the reasons that Courts have held ISPs blameless for Usenet apply equally well to other Internet Access tools. Usenet is governed by netiquette and topicality, and no Government measures have yet achieved censorship of Usenet.
         "Illegal Content"         means:
                                   (a) in relation to content made available 
                                       over the internet, content which it 
                                       is illegal to publish under the law 
                                       of the State, Territory or 
                                       Commonwealth law where the server 
                                       containing it is located; and
                                   (b) in relation to content stored but not 
                                       made available to anyone except the 
                                       subscriber, content the mere 
                                       possession of which is illegal under 
                                       the law of the State, Territory or 
                                       Commonwealth law where the server 
                                       containing it is located.
This clause creates, for the first time, a national definition of what is Illegal to place on the Internet in Australia. For this reason, it must be closely scrutinised, since the use of this term within the Code promotes the strongest measures against this material.

Firstly, the Code defines the illegality in terms of material not able to be published in the State or Territory in which the server resides. This assumes, perhaps wrongly, that Federal law does not already cover what material may be "made available over the Internet" by operation of the Crimes Act. Many States do not have publication restrictions over content illegal to publish elsewhere, or have varying laws as to the legality of possession. The second limb purports to further limit liability when no-one but the "Subscriber" (who?) can access the material, reducing the definition to material illegal to possess in the place where the server is located.

In practice, the user/content provider may not necessarily know where the server is located, or may lack any means to find out. National ISPs may have a variety of servers, different locations for web proxies and web pages or may have outsourced data storage to Singapore. Since serious civil and criminal consequences flow from an incorrect assessment, the absence of uniformity between State and Territory censorship regimes invites constant enquiry as to the particular State or Territory laws at issue and, inevitably, the imposition of a censorship regime based on the lowest common denominator - material that is legal to publish in every State of Australia. The most censorious State or Territory would define what is legal for ISPs throughout Australia, inviting fragmentation of the Internet and being a powerful disincentive against an ISP offering services in several States.

There is no recognised authority for declaring what is legal on the Internet in Australia. The OFLC will not classify web pages, and even the Government censors rarely make unanimous decisions about classifications. To define "Illegal Content" in this manner gives Content Providers, users and ISPs no means of knowing what their legal liabilities are. It is insidious that the IIA Code is the only legal requirement for Content Providers to know the minute details of censorship in each State or Territory.

Alternatively, the least censorious State or Territory could enjoy a boom industry of content hosting, resulting in the Australian Internet devoting most of its bandwidth to going to and from that State or Territory. Artificial impediments to logical server location decisions is obviously an inefficient use of the network infrastructure, and the IIA Code should not pit one State against the others.

IIA should accept that if the Federal Government enacts Internet legislation that allows each State and Territory to rate differently, ISPs will need a better definition of "Illegal Content". The answer is not hard to find. The only material that is uniformly illegal to possess or supply in every part of Australia is child pornography of a defined type. Police in other States are not going to prosecute transmissions of anything less, with the possible exception of crimes that are adequately caught within the ambit of laws of general application. EFA submits that IIA should "draw the line" at an achievable and consistent level as follows:

         "person"                  includes partnerships, bodies corporate 
                                   and the Crown.
         "Programmers"             means those creating and supporting the 
                                   software used on the Internet.
         "Relevant Authority"      means a body authorised by statute, 
                                   ministerial direction or parliamentary
                                   intent to adjudicate on matters relevant 
                                   to this Code, including questions of 
                                   fact.  Without limitation, Relevant 
                                   Authorities include the Telecommunications 
                                   Ombudsman, the Australian Competition and 
                                   Consumer Commission, the Australian 
                                   Broadcasting Authority, the Federal 
                                   Police, each State Police service and 
                                   the Racing and Gaming Authorities of each 
                                   state of Australia.
This is ridiculously broad, permitting the Racing Minister in Tasmania to order an ISP to take down content in another State or Territory. There is no logical role for the Telecommunications Ombudsman and the ACCC - they are specifically forbidden from regulating Internet content.

It is an abrogation of self-regulation for IIA to give up control to anyone with a badge. EFA submits that if "take-down orders" are eventually able to be issued by an authority other than a Court, such an authority can then be named in the IIA Code. For the time being, only the police and the Court system have the power to order an ISP to censor a user's content, and IIA should respect the protections against abuse that the law provides when a "printing press" is closed down.

EFA submits that the definition should be amended to:

         "sale"                    when used in relation to content or 
                                   software, includes a licence.
         "software"                means computer software.
         "URL"                     stands for "Uniform Resource Locator" 
                                   which is the address of a file of
                                   content on the Internet.
         "user "                   means a customer of a Code Subscriber.
This is too narrow, as other Internet users also have reasonable expectations that a Code Subscriber ISP will respect their privacy as they access content through that ISP. For example, a mailing list or web chat site has communications from many people other than the ISP's own customers, and any web server has the capacity to collect domain addresses from anyone accessing that web server. This is a complicated issue, and needs extensive consultation with privacy advocates to satisfy future e-commerce and privacy needs.
         "unsolicited email"       means email consisting of advertising 
                                   material that is both:
                                   (a) addressed to a recipient with whom 
                                       the initiator does not have an 
                                       existing business or personal 
                                       relationship; and
                                   (b) not sent at the request of, or with 
                                       the express consent of, the recipient.
As "advertising material" is not defined, this definition is worthless. This definition could therefore range between a prohibition on any unrequested email or provide a loophole for spammers who may claim they were providing "information, not advertising". Advertising is not the only purpose of spam - another is to discern active email addresses.
         "Unsuitable Content"      means content, the possession of which 
                                   while not illegal under an applicable
                                   State, Territory or Commonwealth law, is 
                                   nevertheless determined by the Relevant
                                   Authority to be unsuitable for minors in 
                                   accordance with the National 
                                   Classification Code.
This illustrates why the definition of "Relevant Authority" is ridiculously broad. Not only do the many entities involved have a role in classification of illegal material, but also now determine what is suitable for children. The National Classification Code is no help, it doesn't rate the Internet and analogies with children's' television are quixotic. Realistically, an ISP cannot be expected to run a business with so many State and Federal entities having a say on what is suitable for children, a matter of considerable debate the world over.

It is absurd that "Illegal Content" is defined in this draft Code by reference to the location of the server, but "Unsuitable Content" is defined by reference to the location of the complainant. This would allow one rogue agency to make multiple vexatious complaints against an ISP in a different State, operating strictly within the law.

Better that IIA get out of the child-minding business. The Internet is an adult medium, suitable for children only under supervision. Attempts to make the Internet "safe" for a child's eyes from Australia is risible at best, and a tragic absence of understanding at worst.

         "Vendors"                 means the vendors of products, information 
                                   and/or services via the Internet.
         "Web Page Developers"     means those who make Web Pages for users.
         "Web Page"                means a file of content accessible on the 
                                   World Wide Web by a single URL.
         "working day"             means any day Monday to Friday, excluding 
                                   public holidays.
This is a continuing puzzle - ISPs run a 24/7 business, and demand often peaks during weekends. People want results from the ISP promptly, and the Code ought not promote archaic notions of the working week based on the times banks and post offices are open.
         "World Wide Web"          means the network of content accessible 
                                   on the Internet using the Hypertext
                                   Transfer Protocol ("http").

      5. SCOPE
         This Code is intended to cover those who agree to be bound
         by the Code and whose business is to provide the products and 
         services that comprise the Internet or who make use of the Internet 
         to supply or service their customers.

         The Internet industry includes:
         * Content Providers
         * ISPs
         * Programmers
         * Vendors
         * Web Page Developers
This is surely an ambit claim, many other trades or professions already operate under industry codes of practice. Surely a business that uses email or a web site should not be within the ambit of an ISP industry code.

The Code would be more persuasive if it ceased to attempt to cover everybody. It is strongly arguable that Content Providers need their own Code, and Code Providers in niche markets may need to develop more specific codes. Programmers and Web Page developers have other, more focussed, organisations to join.

      6. PROMOTION OF THE CODE
         Code Subscribers will:
         (a) be entitled to include on their Home Page and any of their 
             material made available on the Internet:
             * the Code Compliance Symbol, and
             * where the Code Compliance Symbol appears on the World
               Wide Web, a hypertext link to the Administrative Council Web 
               Page or another location specified by the Administrative 
               Council which provides information about the Code 
               Subscriber's rights and obligations under the Code; and
         (b) use reasonable endeavours to ensure that their employees
             and agents are aware of the obligation to comply with the Code.
      7. GENERAL CONDUCT OF ALL CODE SUBSCRIBERS
      7.1 When first entering into a transaction with a user,
          Code Subscribers will provide to each user:
          (a) by means of a notice on their Home Page or by other
              reasonable means:
              * the name of their trading entity and, if it is a corporation,
                the ACN of the corporation.
              * the physical location of their office.
              * a contact telephone number.
Having regard to the importance of the physical location of the server, it is inconsistent not to require the location of all relevant servers here, under the existing Code. The requirement of providing a physical address is unnecessary. The registered office of a company is quite often a law firm or accountancy practice, an ISP could provide the physical address of a distant Point of Presence. Some Code Subscribers, perhaps web developers who are not required to have business premises, may not wish to have their physical address searchable on the Internet. The Code does not address the privacy concerns of persons who may have a legal reason or excuse to conceal their physical address (not the least reason being that it is a private residence), but who nonetheless are ethical businesses in every respect.
          (b) by means of email, or an attachment to the terms and
              conditions of subscription, or by hypertext link or by other 
              reasonable means capable of providing the user with adequate 
              notice, a copy of an acceptable use policy containing 
              guidelines for the lawful and ethical use of the internet as 
              recommended by the Administrative Council from time
              to time.
EFA cannot comment on the proposed Acceptable Use Policy, since it has apparently not yet been drafted. It is not appropriate, as will be noted elsewhere, for a Code having legal force and effect to incorporate crucial terms and conditions by reference to documents that are not yet written. IIA members cannot calculate the impact that signing the Code in this unfinished state will have on the future operations of their business.
      7.2 Code Subscribers will deal with each user promptly and fairly.
Brevity is a virtue, but this does not seem to be a Customer Service Charter.
      7.3 Code Subscribers will not:
          (a) inaccurately represent the benefits of their product
              or service.
          (b) engage in conduct that is misleading or deceptive,
              within the meaning of the Trade Practices Act 1974.
          (c) engage in conduct that is in all the circumstances
              unconscionable, within the meaning of the Trade Practices 
              Act 1974.
          (d) knowingly exploit lack of knowledge of users regarding
              the Internet or the products or services the products or 
              services that they provide.
These provisions do not add to the law applied through legislation, and restatement in this Code tends to suggest that other matters will not receive the sanction of being a breach of the Code. If designed as a primer for ISPs of matters considered unlawful, it lacks accessibility - but it certainly does not cover all conduct by an ISP business that may breach the law.
      7.4 Advertising by Code Subscribers will comply with the
          Australian Association of National Advertisers Code of Ethics. 
          http://www.aana.com.au/services/f_services.htm
That URL doesn't work, and illustrates a problem with a Code written for Government that uses links, when the Government version is on paper. Again, asking Code Subscribers to comply with a Code of Ethics that is not available as a condition of keeping Code Compliance is unreasonable. If the AANA Code binds IIA members, attach a copy of it before members have to sign.
      7.5 Code Subscribers will provide users contact details for the 
          Relevant Authorities of any service or content available on the
          Internet from within Australia that the user considers is:
          (a) fraudulent
          (b) misleading or deceptive and likely to cause loss
              or damage to third parties
          (c) illegal.
This is badly written. It should read "...provide to users..." or similar. Not all the authorities listed in this version of the Code have jurisdiction over all of the matters listed, and a complaint sent to the thirty or so "Relevant Authorities" would have a tendency to harass. Qualified privilege for communications to some of the "Relevant Authorities" listed would not exist, and there would be dangers of defamation actions. The remedy is to limit the definition of "Relevant Authorities" as suggested above, so that only relevant, empowered authorities are contacted.
      8. SECRECY AND PRIVACY OBLIGATIONS
      8.1 Code Subscribers will comply with the National Principles
          for the fair handling of personal information 
          (http://www.privacy.gov.au/news/p6_4_1.html).
          The provisions of this Code are in addition to and not in 
          reduction of the obligation of Code Subscribers under those 
          Principles.
That URL is no longer current, illustrating the danger of incorporating into the Code terms and conditions from web pages.
      8.2 Code Subscribers will:
          (a) keep confidential the business records, personal details and 
              information of or relating to each user and will respect the
              privacy of users' personal communications;
          (b) take adequate steps to ensure the confidentiality of business 
              records, personal details and information;
          (c) not sell or exchange the business records, personal details 
              or information of a user other than to another Code Subscriber
              as part of the sale of the Code Subscriber's business as a 
              going concern;
          (d) refrain from intentionally examining or tampering with a 
              user's business records, personal details or information 
              without the express prior consent of the user except to the 
              extent required by a properly qualified officer for the 
              maintenance of system security or data integrity;
          (e) treat email as private content whether in transit or in 
              storage.
The restricted definition of "user" severely limits the usefulness of this provision. The proviso to treat email as private begs the question as to why IRC and other forms of communication are not similarly protected.
      8.3 Clause 8.2 does not prevent disclosure of information with the 
          express or implied consent of the user or as required by law. 
          Nothing in this Code in any way releases a Code Subscriber from 
          more onerous secrecy obligations imposed by statute or contract 
          or equity, or other industry code of practice to which they may
          be bound. Nothing in this Code prevents a Code subscriber from 
          collecting anonymous aggregate information regarding its users or 
          the use of its service.
Express user consent should always be obtained. The Telecommunications Act imposes criminal penalties upon ISPs that release user's personal details other than in accordance with section 276 of the Act.
      9. COLLECTION AND USE OF USER DETAILS
      9.1 Code Subscribers will collect details relating to a user only:
          (a) if relevant and necessary for the provision of the service or 
              product that the Code Subscriber is engaged to provide, or
This is unacceptable, as the ISP determines what is "relevant and necessary", and there is no requirement of express user consent. This could lead to breaches of privacy such as the ISP demanding that users turn on Caller Line Identification.
          (b) for other legitimate purposes made known to the user prior 
              to the time the details are collected.
      9.2 Code Subscribers will use details relating to a user only for:
          (a) the Code Subscriber's internal marketing, billing or other 
              purposes necessary for the provision of the service, or
"Internal marketing" is too broad, and express consent should be obtained in all cases. ISPs are offering a service, not collecting information.
          (b) purposes made known to the user prior to the time the 
              details are collected, or
          (c) other purposes with the prior consent of the user.
      9.3 Code Subscribers will take reasonable steps, having regard
          to the nature of the information, to ensure that information 
          collected in relation to a user:
          (a) to the extent that it comprises business records or details 
              in relation to a particular individual, can be checked by a
              user.
All information collected in relation to a user should be capable of being checked.
          (b) is accurate, and if necessary, kept up to date.
          (c) if inaccurate, is erased or rectified.
          (d) is erased at the request of the user and/or when
              no longer reasonably required.
The use of the term "and/or" is regrettable here, in the only clause that deals with destruction of personal data.
      9.4 In this part of the Code, references to the collection
          of details include collection of details by active request or 
          inquiry and collection of details by passive recording of 
          actions or activity.
      9.5 Code Subscribers will not collect personal, family or residency 
          information from any user who they know or might reasonably
          suspect to be under the age of 18 years without the express 
          consent of one of the user's parents or a guardian. This 
          provision does not prevent the recording of an anonymous but 
          identified (by login name or cookie) user's preferred services 
          or use history.
This would appear to place constraints on the ability of a young person to obtain an Internet account without the "express" consent of a parent or guardian. There are a number of young people legally independent prior to the age of 18, and there is no reason why a young person who can live alone and pay full taxes cannot obtain an Internet account.

If this clause is not designed to limit Internet access to adults, what is the justification for refraining from collecting data for purely business purposes from a minor ?

      10. CONDUCT OF CONTENT PROVIDERS
This section is fundamentally flawed, as it imposes obligations in relation to content that ISPs are unable to fulfill to the extent required by law, but nonetheless encourages censorship by persons unqualified to do so. EFA calls upon IIA to rethink their strategy in relation to an ISP's obligations over content in the interests of justice and procedural fairness.

IIA should also recognise that the originators of deliberately illegal material and those who seek to attract children to their web sites for nefarious purposes are the people least likely to comply with any rating system or with any other mechanisms of control. Thus filter technologies which rely on self-rating and self-labelling by content providers are likely to allow access to some illegal or unsuitable material due to intentional mis-rating. Given that filter software is practically useless, it would be ironic if the main beneficiaries of ratings were paedophile sites intentionally mis-rated to be accessible to children using software-filtered Internet Access.

      10.1 Code Subscriber Content Providers will not knowingly place 
           Illegal Content on the Internet or allow Illegal Content to 
           remain on the Internet in an area over which the Content 
           Provider has control and the technical ability to remove or 
           block such content. The obligation to remove and block such 
           content must be feasible.
There is no definition of "Illegal Content" known to the law. The definition, binding on IIA members only, creates an artificial standard for online content that does not exist for offline publication - a standard that would be more censorious and less certain than that for similar offline material.

A redrafting of the definition of Illegal Content to specifically refer to pictorial Child Pornography would remove much of the difficulties with this clause. However, implicit in "the technical ability to remove and block such content" is a potential liability for proactive policing by ISPs as burdensome as outdated notions of ISP liability for all material hosted by the ISP. A provision that the Illegal Content must be brought to the notice of the ISP would rule out a future Government requirement that Code Compliance requires ISPs to have an encyclopaedic knowledge of what is hosted by the ISP.

The use of the term "feasible" seems designed to be open to a variety of interpretations - to a Government department it may seem "feasible" for an ISP to monitor all user transmissions. If this is to be a practical guide to the obligations of ISPs, then it should be restricted to circumstances in which an ISP acts as a Content Provider.

      10.2 Code Subscriber Content Providers will not knowingly place 
           invitations or directions (including hyperlinks) to Illegal 
           Content.  However, Code Subscriber Content Providers are not 
           required to restrict or filter the results presented by 
           automated general-purpose search engines, catalogues or 
           directories.
This is a wholly unnecessary and unjustified ban on links, which is to say a ban on references to Illegal Content. Academic material, police databases and hospital services may contain child pornography under the most restricted definition - what is important is the context and purpose of such hosting.

IIA should consider the "slippery slope" of making ISPs, Content Providers and users responsible for hyperlinks. Links to active or changing material may result in liability under the Code where none would exist in criminal law, and "links to links" would invite liability based on an arbitrary degree of separation. The exception for search engines seems to toughen the previous sentence in inviting liability for home pages of organisations that contain much material and incidentally Illegal Content - again universities, law-enforcement sites and hospital services could be made illegal to link to.

It is an offence to advertise Child Pornography under laws of general application, and criminal law provides the best means of establishing whether a link has that effect. This clause should be deleted in its entirety - it exceeds legal liability for similar "references" in an offline context.

IIA has not established why it is considered reasonable for the Code to force a user not to link to material which is legal to possess in that user's State or Territory, but not in another State or Territory. This is encouragement for one of the nominated "Relevant Authorities" to step beyond its geographical or statutary mandate and meddle in the legal rights of persons in other States or Territories.

This provision, and others like it in this Code, reverses the burden of proof. Instead of a Court having to find as a matter of fact that content is unlawful, a judgment is made by an unqualified person that the Content Provider would have to sue to change. Once a Relevant Authority or an ISP has given an opinion on a matter, it is up to the individual to appeal the decision through the law courts. It would be far preferable to give ISPs workable rules on conduct based on laws of general application which have the presumption of innocence.

      10.3 Code Subscriber Content Providers will not use inaccurate
           or misleading descriptors in their metatags, or other coding 
           by which means their pages can be located by automated 
           general-purpose search engines, so as to misrepresent the 
           content contained on the relevant page or pages to which the 
           metatags or coding applies.
This is a broad requirement, and would require Content Providers and ISPs to make judgments as to whether a meta-tag is "misleading". There is no established principle of law that misleading a search engine is an offence - nor whether to describe astrology as a science. The real problem with this clause is that, whatever the motivation, it imposes a burden of content classification that is too broad to be implemented.

Worse, the clause invites the Government to criminalise mis-rating of web pages - obviously a compulsory rating system will only work if mis-rating is strongly discouraged. It is beyond the capacity of the average user or Content Provider to determine whether a rating is precisely correct when fine gradations of rating may well be a matter of opinion. Effectively this clause would result in web pages having to be rated by experts, and at considerable cost.

To date, there are no search engines that locate material by reference to PICS rating. There seems little point in criminalising misratings when there is no benefit for end-users in relation to being able to locate suitable material.

      10.4 Code Subscriber Content Providers will, where technically
           feasible, ensure that services that provide Unsuitable Content 
           are:
           (a) segregated and have clearly identifiable labels which can 
           be recognised by filter software or technologies
           (b) accompanied by suitable on screen warnings on a Web Page 
           which appears to the user before the content can be viewed; or
Given the definition of "user" in this Code, a Code Subscriber Content Provider who provided a notice stating:
1. "If you are one of my customers - click here"
2. "If you are NOT one of my customers - click here"
the author would be in compliance with the Code without displaying a warning to persons clicking the second link. This seems illogical given existing customers would likely be aware of the type of content on the site, whereas potential customers would not.
           (c) access managed by subscription enrolments to exclude under 
           age subscribers.
The United States Supreme Court in the CDA case received and accepted conclusive technical evidence that it is beyond the capacity of an ISP or Content Provider to verify age and identity. All of the difficulties that attend the ISP having to classify Illegal Content are redoubled when the requirement of rating for "Unsuitable Content" is also there - it is hard enough to know what is unpublishable let alone what may be unsuitable for a child of any age. The National Classification Code is no help - it does not rate Internet content.

Broadcast media and the published word can be targeted for a specific age-group by time and distributor, but Internet content is available online for access by users of any age 24 hours per day. Realistically, even if all Australians were in a position to abide by the provisions of the Code, the effect on the end-user would be negligible. If the content that the Code is trying to "protect" children from is freely available from the vast majority of web sites located overseas, this provision does nothing but damage Australian e-commerce.

A real problem for parents with this provision is that it invites the false belief that supervision of a child's access to the Internet is unnecessary. Depending on the age and maturity of the child, supervision is a required part of parental responsibility. This supervision should be continuous in the case of small children, and no amount of classification or passwording by Australian Content Providers can change this.

This provision affects users' privacy - why should an Internet user have to provide identity and age verification to view legal material on an Australian web site when the same information does not have to be given to an overseas web site ? This is a disincentive for Australian web sites, and a serious breach of privacy principles. There would be a public outcry if cinema patrons had to provide identity information before being able to see an R-rated movie.

      10.5 A Code Subscriber Content Provider shall have been complied 
           with 10.1 if on being advised in writing by a Relevant Authority
           that Illegal Content exists or remains at a Web Site or other 
           content database within its control, it removes the Illegal 
           Content.
The definition of "Relevant Authority" is the principal problem with this clause, as noted above. It contradicts clause 10.1 (which as stated above implies a proactive obligation, or at least action taken after notice) and should be included within a redrafted 10.1.
      10.6 Code Subscribers Content Providers will take reasonable
           steps to ensure that any services providing content in an area 
           over which they have control will support appropriate ratings 
           technologies and are encouraged to classify and label content 
           in accordance with the system or systems recommended by the 
           Administrative Council.
Delete. Ratings systems have failed dismally, and there is too much content already unrated on the Internet to ever classify manually. Content Providers such as news services are never going to be in a position to rate active content, and in the event that commercial Content Providers develop codes of practice for their respective industry sectors then such codes should address this issue. The Administrative Council, as a Government-run body, should not be given the power to enforce a failed technology at its own whim.

It is further noted that the present signatories of the Code have not rated or labeled content, and their web sites would be blocked by filter software as "unrated". To be consistent, the Administrative Council should commence the exercise of its duties by stripping Telstra, Optus and Zip of their "Code Compliance" symbols.

Whether or not services providing content support rating technologies depends on technological development, not on content providers. Reasonable steps should therefore be defined. It is inappropriate for the Code to restrict Code Subscriber Content Providers to providing content only by means which support rating technologies. For example, it is not technologically possible to embed rating labels in web pages dynamically generated from databases, nor in PDF documents and other documents created to be securely verifiable. As evidenced by Government web sites, documents which do not support PICS are an increasingly common means of providing content. While it is possible to associate labels with such content, specialised software is required to be installed on servers, there are few products available, cost is a significant issue and installation is outside the control of most content providers.

An example is the law service Austlii - it contains a massive database of legal materials, including judgments from criminal law cases and family law cases. Some of the material is unsuitable for children, some is actually Refused Classification - but as the material is released from the Attorney-General's Department without content rating or labels it is beyond the resources of a sponsored organisation to have it rated by a third party. If a requirement for content rating is made compulsory, public resources such as Austlii would be at risk.

Content Provision on the Internet is a series of niche markets, each with its own dynamics and consumer issues. By trying to lump all Content Providers together, IIA attempts to have rules covering sites which have no controversial content (but high privacy and e-commerce considerations) as well as those that have controversial content with or without commercial considerations. It would be far preferable for IIA to focus on the role of Carrier Service Providers rather than Content Providers, as the latter have a more diverse market and wholly differing consumer issues.

       10.7 Code Subscriber Content Providers will not knowingly place on 
            the Internet material which, if accessed, would infringe 
            copyright.
This should be a matter for a separate Content Provider code of practice, which should also specify how a person is to be certain of copyright matters. The issue is best approached from the other side - what steps should a Content Provider take to ensure that copyrights are respected. As the pending amendments to the Copyright Act specifically exclude ISPs from liability for innocent hosting of copyright material, this clause has no place in an ISP Code of Practice.
      11. CONDUCT OF VENDORS
      11.1 Code Subscriber Vendors will, before a sale or agreement
           to sell is concluded on the Internet, advise the user:
           (a) if, according to guidelines made available by the
           Administrative Council, the method of payment chosen by the 
           user is not considered secure.
This is an issue for law and the marketplace, not the Administrative Council.
           (b) the refund or exchange policy applicable to the sale.
           (c) of the legal jurisdiction which applies to the sale.

      11.2 In relation to sales of products on the Internet, Code 
           Subscriber Vendors will make the following information 
           available to the user, before a sale or agreement to sell is 
           concluded:
           (a) the costs which the user will incur as a result of the 
           purchase, including delivery costs.
           (b) of any specification or characteristic of the product which 
           might reasonably be expected to be relevant to the user's 
           decision to buy the product if that specification or 
           characteristic is materially different from the specification 
           or characteristic that a reasonable user might assume the 
           product to have having regard to the information supplied
           by the Code Subscriber Vendor on the Internet.
A vendor could not guess what a reasonable user (i.e. a customer of a Code Subscriber) would assume. There are already ample consumer protections under laws of general application to cover misdescription of goods and services.
           (c) the time within which the product will be delivered
           to the user.
           (d) a copy of any other applicable terms and conditions of 
           sale

      11.3 In relation to sale of software on the Internet to be 
           delivered using the Internet, Code Subscriber Vendors will 
           make available to the user, before a sale or agreement to sell 
           is concluded:
           (a) the terms of the software licence agreement.
That is not provided by many major software companies.
           (b) a specification of the size of the program and the
           operating system and equipment required to run it 
           efficiently.
Normal practice is to detail "minimum" hardware and O/S requirements, not to speculate as to what O/S and hardware might run the program "efficiently".
      11.4 In relation to sale of content on the Internet to be
           delivered using the Internet, Code Subscriber Vendors will 
           advise the user, before a sale or agreement to sell is 
           concluded:
           (a) particulars of the content that will be provided including:
               * an accurate description, synopsis or sample
               * its form (written, illustrated, video, animated, etc)
               * the size of the file containing the content.
           (b) any restrictions that will apply to the userís right
           to use the content that is downloaded.
"Local laws may vary". This is an onerous requirement for a vendor to guess the geographical location of all potential purchasers.
           (c) the operating system and equipment required to view
           or otherwise use the content.
Again, usual industry practice is to specify this. It is difficult to understand whether IIA is toughening or relaxing the general consumer protection laws with a clause like this - is it sufficient to state "minimum needs", "optimal needs" or "for best results"?
      [ Note - Clauses 11.5 and 11.6 are suspended until further
        notice]
      [11.5 Any Code Subscriber that sends unsolicited email will:
            (a) establish a toll-free telephone number, valid sender
            operated return e-mail address or postal address that the 
            recipient of the unsolicited email may call, e-mail or write 
            to, as the case may be, to notify the sender not to send any 
            further unsolicited e-mail.
            (b) include in all unsolicited email a statement informing
            the recipient of the toll-free telephone number that the 
            recipient may call, or a valid return address to which the 
            recipient may write or e-mail, as the case may be, notifying 
            the sender not to send the recipient any further unsolicited 
            email to any addresses of the recipient or if the recipient
            is any employer provider of email access, not to send the any 
            further unsolicited email to any addresses of the employer 
            provided addresses
            (c) upon notification by a recipient of his or her request
            not to receive any further unsolicited email the Code 
            Subscriber shall not send any more unsolicited email to that 
            recipient.
            (d) include in the subject line of each unsolicited email
            "ADV:" as the first four characters.

      11.6 Code Subscribers will not send unsolicited e-mail which
           contains Unsuitable Content. Unsolicited e-mail which contains 
           a link or links to Unsuitable Content should include in the 
           subject line "ADV:ADLT" as the first eight characters and 
           should include in the body of the message a warning that the 
           e-mail is intended for adults only.]

       NB: The operation of Clauses 11.5 and 11.6 are suspended
           pending further consultation with IIA members on a possible 
           alternative approach to controlling unsolicited commercial 
           email ('spam').
           by resolution of the Board of the Internet Industry Association,
           11 February 1999
The issue of spam control and unsolicited "adult" email deserves wider industry and community consultation. Attempts by Governments to legislate against spam have been ineffective, and redress is difficult when most spam originates from overseas. It is not going to be easy to stop spam without blocking normal email - for example a ban on the free email account web sites such as yahoo, hotmail or netscape would substantially reduce spam, but at the cost of many legitimate messages.

It is noted that IIA polled its members on this issue, and the members voted strongly for "opt-in" in relation to unsolicited commercial email. Care will have to be taken to avoid rigidity in definitions, so that legitimate email is not inadvertently caught under anti-spam measures.

      12. GENERAL CONDUCT OF ISPs
      12.1 Code Subscriber ISPs will make available to each user:
           (a) a copy of this Code of Practice upon request.
           (b) a copy of rules identifying unacceptable posting or conduct 
           that may lead to removal of the unacceptable content, suspension
           or cancellation of the users account or prosecution by the 
           authorities in Australia as made available by the Administrative 
           Council from time to time.
This appears to be another reference to the as-yet-unwritten Acceptable Use Policy. The reference to it in this Code would delight the censor - without defining in the Code what content must be censored, ISPs must sign a Code giving the Administrative Council the power to bring in content regulation through the back door.

Once again - the Code should not require ISPs to agree to terms and conditions that are not yet written or available.

           (c) information on how to resolve any difficulties which might 
           arise with the product or service of the Code Subscriber.

      12.2 Code Subscriber ISPs will comply with the Prices, Terms
           and Conditions Code of Practice as developed by the Australian 
           Communications Industry Forum.
Once again - the Code should not require ISPs to agree to terms and conditions that are not yet written or available.

If the ACIF Code binds all "carriage service providers" (as ISPs are defined), that is a matter of law. No reference to it is needed in this Code, and certainly not before it is written.

      12.3 A Code Subscriber ISP will agree with each user at the
           time of engagement:
           (a) the extent of information that the user will receive
           regarding the basis of each charge made by the ISP to the 
           user.
           (b) the procedure for seeking information regarding, or
           a review of, any account issued.
           (c) the extent of telephone or other advice and support
           which will be provided and the applicable cost.
           (d) an Acknowledgment that the Code Subscriber ISP must
           comply with this Code and that the user must not do any act 
           or make any omission which would require the Code Subscriber 
           ISP to take remedial action under this Code.
This imposes on ISPs the obligation to alter their terms and conditions to force users to abide by IIA's content regulation policy. It is for this reason that EFA cannot countenance vagueness in clauses 10 and 13, since authorities such as the ABA may require strict compliance with this clause in order for an ISP to qualify for Code Compliance.
           (e) the basis on which the user may terminate the service.
           (f) the arrangements for transfer of service that will apply 
           if the service is cancelled by the user at any time;
           (g) any limitations on the connectivity to the Internet or 
           Internet services to be provided by the Code Subscriber.
This is but the start of IIA's discussions as to standards of service and common clauses to be found in member ISPs' terms and conditions. Consumer organisations should be consulted by IIA to settle the terms of 12.3 in the public interest.
      12.4 Code Subscribers who host Web Sites will ensure that the user 
           is informed at the time of engagement that the user should obtain
           advice regarding the user's potential liability for the 
           consequences of the publication of material on the Web Site.
Chilling to free speech, and a warning the ISP is unqualified to give. There are preferable ways for the ISP to assist in the education of novice users than sending them off to the lawyers.
      12.5 Code Subscribers that register domain names for users will 
           inform the user of the terms and conditions on which the domain 
           name is made available to the user, including any requirement 
           of use and restriction on transferability.
Until the present Domain Names administration enquiries and processes are complete, an ISP would be speculating.
      13. CONTENT CLASSIFICATION AND SELECTION
To EFA, this represents the single greatest reason to campaign against the adoption of this Code. It is highly controversial to require ISPs to "encourage" users to label, when in practice this will result in ISPs and bandwidth resellers being required to embody in access contracts a legal obligation to do so.

For example, the Optus Spinnaker access agreement requires ISPs to force their users to censor material that Optus deems to be inappropriate. In settled law, it is difficult to see what business it is of Optus, but no doubt timorous legal advice or notions of corporate responsibility have persuaded Optus to become censors.

It is a term of an ISP's agreement with Optus that the ISP insert in its user contracts these terms:

The Internet community will find that a requirement in the IIA Code to "encourage" or "ensure" user behaviour will be administered in by major ISPs and bandwidth wholesalers in the same manner as the Optus Spinnaker terms - a contractual obligation under threat of losing access. As IIA claims it represents "95%" of Internet traffic, a handful of ISPs and bandwidth wholesalers have the capacity to censor the Internet in Australia under this clause.
      13.1 Code Subscriber ISPs will encourage those of their users whom 
           are Content Providers to use appropriate labeling systems as
           recommended by the Administrative Council from time to time on:
           (a) all Web Sites and other content databases which the Code 
           Subscriber hosts; and
           (b)all of the Code Subscriberís Web Sites and other content databases.

This surrenders to the Government-run Administrative Council the power to enforce ratings on every single Australian Internet user, ISP and Content Provider under threat of disconnection.

While it is noted that IIA seeks only to "encourage" Code Subscriber Content Providers to label content, it is recommended that IIA ensure this encouragement does not develop into a level of pressure which will discourage subscription to the Code. Internet users may be attracted to sites of Code-Compliant Content Providers if there are consumer benefits in terms of privacy assurances and dispute-resolution. It would be detrimental to the interests of both Content Providers and Internet users if Content Providers choose not to subscribe to the Code because of the impracticalities of rating and labeling content.

Making it a term or conditions of Internet Access to comply with labeling is likely to lead to user backlash, or at least disobedience. Better not to criminalise the 99% of users who will never rate their web site.

Furthermore, widely adopted rating technologies remain a vision rather than a reality, and there is no point in mandating standards that will never be widely implemented. It is noted, for example, that even the ABA has apparently acknowledged the deficiencies of the RSACi rating system in removing the RSACi labels from their site. If and when satisfactory labeling schemes are developed, then will be the time to consider setting Industry standards - hopefully after considerable community consultation rather than an order from the Administrative Council.

Although it is three years since the first rating and labeling technologies became available, there remains an absence of tools which enable content providers to rate and label content in a time and cost efficient manner. It is simply not practical for many content providers to rate and label content and they should not be pestered to do so by businesses whom they pay for web hosting services.

For example, a representative of W3C (albeit while not wearing a W3C hat) acknowledged in September 1998 on the Link public mailing list that:

and Moreover, content providers who have not explicitly agreed to be bound by the Code should not be required to use systems considered appropriate by the IIA Administrative Council. Given the subjective nature of existing rating systems, labeling is likely to result in both ISPs and content providers receiving complaints about alleged mis-rating of content. Content providers must be free to choose to use rating systems that they are comfortable with, that reflect their own values or those of their site visitors, or not use any at all, rather than be required to use systems deemed suitable in the opinion of an Industry association which does not represent them. Just as sites voluntarily register with search engines, sites will obtain ratings from ratings services so that their sites are accessible to as many people as possible. However, it is unlikely that a critical mass of labeled content will ever exist; certainly not unless significantly improved systems and tools become available. Trends towards dynamic content and active content are daily making the task of applying ratings to URLs more difficult.

It should be noted that not all web browsers support content rating - in order for labeling to work "properly", the Administrative Council would have to mandate that ISPs compel their users to use only those browsers that support content rating. The degree of compulsion required to force the Australian Internet to adopt labeling is staggering, given the limited benefits to the end-user

      13.2 Code Subscriber ISPs are encouraged to provide users with 
           the means of finding out about and using PICS based rating 
           services and filtering software as an option for limiting 
           access to unsuitable material on the Internet.
This promotes one side of the debate, and again could be interpreted as imposing upon users a contractual obligation to use filter software , or requiring ISPs to filter web proxies. It also requires ISPs to stay abreast of new developments in PICS and to ensure that URLs are up to date. It could also leave ISPs liable in negligence for wrongfully indicating to parents and educators that parental supervision can be disregarded if filtering software is stated to be "an option for limiting access to unsuitable material".

"PICS" is not defined in the Code, which is a strange oversight seeing as there is a threat of delicencing if it is not promoted by the ISP pursuant to clause 13.2. This submission will not attempt to repeat the many compelling arguments against PICS, but it should be noted by IIA that a number of ethical ISPs will not encourage the use of it or recommend to parents and educators any filter software for the reasons previously expressed.

Clause 13.2 should be deleted. There is no point in encouraging Code Subscribers to provide information to customers about using software products that block in the vicinity of 99% of Internet content. There is no reasonable likelihood that labeling of content using PICS facilitated or similar protocols will become mandatory for content providers worldwide - especially as the United States may find this to be an unconstitutional violation of free speech. Focussing educational endeavours on PICS compatible products misleads the public into a belief that the Internet can be sanitised by rating and labeling.

Almost two years ago Patrick Fair admitted that PICS-rated sites had not reached "the critical mass" required to make it a viable rating system - since then the proportion of PICS-enabled rated sites to the rest of the web has decreased further. PICS has had its time, and with the refusal of the Internet to adopt it (even as a RFC) and the collapse of two American attempts to censor the Internet, it can now be seen as a dead-end technology.

Furthermore Code Subscriber ISPs are in automatic compliance with a requirement to provide users with "the means" of finding out about and using PICS by the mere fact that they provide access to the Internet where the vast majority of information about PICS resides. However, if the clause is to remain, EFA recommends that IIA include a cautionary note to Code Subscriber ISPs informing them not to advise their customers to search for "PICS" on Internet search engines. Doing so would no doubt result in ISPs having to handle subsequent complaints about the availability of unsuitable material on the Internet.

Despite the fact that no proposed State and Federal laws have ever referred to PICS-enabled ratings, the Code assumes they are to be the basis of the legal definitions of "Illegal" or "Unsuitable" Content. This illustrates a central misunderstanding on the part of IIA as to the method of classifying content for legal purposes. While PICS may be one of a number of possibilities, it seems plain that neither PICS nor the illiberal ratings given to movies shown in cinemas or to computer games will be used for classifying Internet content. In fact, all proposed laws have adopted the scheme used for publications, which is to say "Unrestricted", "Restricted" and "Refused Classification" , all of which currently vary markedly from State to State. Much material that is "Unsuitable for Children", such as Playboy Magazine, is classified as Unrestricted as a publication in most States - so it will be extremely difficult for Content Providers to guess whether material legal for a child to buy "offline" is to be restricted on the Internet.

Classification is a difficult process - it is rare for a decision by a State or Federal Censorship Board to be unanimous in determining classification on a case-by-case basis. Furthermore, the Classification Review Board is not always in agreement with the opinion of the Classification Board.

It would be much more difficult for an ISP, Content Provider or user to classify under IIA's rules which require an appreciation of censorship regulations in every State and Federal jurisdiction.

      13.3 Code Subscriber ISPs will take reasonable steps to prevent 
           users of their service from placing on the Internet, obtaining
           through the Internet or transmitting using the Internet, 
           Illegal Content.
This encourages surveillance of users. If the ISP is not responsible for a user's choice of content accessed from the Internet, then the only aspect of this clause that is enforceable is a contractual obligation on the part of users to self-censor, at unknown risk of detection.

The wider the definition of "Illegal Content", the more arbitrary this becomes.

      13.4 A Code Subscriber ISP shall have complied with 13.3 if:
"complied" in the opinion of the IIA or of the Government? Censors within Government will insist these provisions be strictly enforced by Code Subscribers, and IIA's attempts to downplay the chilling effect on free speech occasioned by ISP censorship are rejected.
           (a) it has informed its users that they must not place on 
           the Internet, obtain or transmit Illegal Content; and
           (b) it has informed its users, that they must not place on
           the Internet or invitations or directions (including hyperlinks)
           to Illegal Content. However, users are not required to restrict 
           or filter the results presented by automated general-purpose 
           search engines, catalogues or directories;
This criminalisation of references to Illegal Content, especially the broad definition under the Code, exceeds the requirements of laws relating to offline material.
           (c) when it becomes aware that a user has placed on the Internet,
           obtained through the Internet or transmitted using the 
           Internet material which is alleged to be Illegal Content and 
           that material remains at a Web Site or other content database 
           within its control it:
           * request that the informant refer the matter to the
             Relevant Authority;
There should instead be the option of counselling or advising a user in error.
           * if the Relevant Authority informs the Code Subscriber
             ISP that the material is Illegal Content,
             promptly removes the Illegal Content from the Web Site
             or database, where technically feasible;
Note strong objections to the wide definition of "Relevant Authority". Hitherto, a written direction from an authorised police officer having jurisdiction in the ISP's locality, or a Court Order within jurisdiction, has been required - now the Tasmanian Gaming Minister can have the power under the IIA Code to dictate National censorship policy.
           * informs the user that the userís conduct is a breach
             of the user's service conditions and, if applicable, a 
             criminal offence; and
Legal advice is not an ISP's job. With corporate clients, such "advice" may be defamatory against a particular employee of the corporate client, and lead to the ISP being drawn into unfair dismissal proceedings.
           * cancels the account of any user that repeats offending
             conduct after being informed that the user's conduct is 
             a breach of the user's service conditions and, if applicable, 
             a criminal offence.
This seems to say that an IIA member may not immediately cancel the account of a detected Child Pornographer, but must cancel the account of a person who has twice inadvertently linked to the IIA's vague notion of "Illegal Content". This restriction on the rights of ISPs to make their own decisions based on the facts is insulting to the ISP industry.
      13.5 A Code Subscriber ISP may comply with 13.3 (a) and
           (b) by including a the relevant term in user terms and 
           conditions.
Use of the word "may" will become "must" once the Government and the Administrative Council wields the unfettered power to censor that IIA has given itself. It should be noted that it is clause 13.4, not 13.3 that imposes these requirements.
      14. CONDUCT OF WEB PAGE DEVELOPERS AND PROGRAMMERS
      14.1 Code Subscriber Web Page Developers and Programmers will:
           (a) ensure that the ownership of the copyright in, or
           (b) the terms of the client's licence to use, any work created 
           for a user is agreed with each client of the Web Page 
           Developer or Programmer before work is commenced.
The operation of a web development contract does not necessarily permit all such matters to be determined before work is "commenced". IIA shouldn't meddle in matters better handled by specialist industry sectors.
      15. ADMINISTRATIVE COUNCIL
      15.1 The Administrative Council shall be made up of 5 members as 
           follows:
           (a) an independent chairperson nominated by the Federal
           Minister for Communications,  Information Technology and the 
           Arts.
It remains unclear why the IIA has handed-over its most important job to the Government.
           (b) two representatives from the Internet industry nominated
           by the Board of IIA.
           (c) a user representative nominated by [a user representative
           organisation to be determined].
This is sloppy, not even bothering to appoint a consumer representative. Obviously the Australian Consumers' Association, ISOC-AU, the Australian Computer Society, ATUG and others have credentials in this regard. However, the development of the Code to date has demonstrated that what IIA lacks is an understanding of the needs of Content Providers and ordinary users, so perhaps it is also required that a further representative, from AIMIA or a similar body representing content providers, could assist to balance debates that presently seem to be dominated by bandwidth wholesalers.
           (d) a lawyer admitted to practice and holding an unrestricted
           practising certificate in a state of Australia nominated by 
           the Board of the IIA.
This excludes a lawyer from one of the Territories, or a legal expert from the Bench or university. For clarity of purpose, a comma should follow the word "certificate" or the word "Australia".
      15.2 Each person appointed to the Administrative Council shall 
           hold office from the date of his or her appointment and retire 
           as follows:
           (a) the chairperson will hold office for 2 years and
           may be reappointed for up to 3 terms.
           (b) one of the representatives nominated by the Board of
           IIA(chosen by lot), and the user nominee will retire on 30 
           June of years ending with an even number.
           (c) the second representative nominated by the Board of IIA, 
           and the lawyer nominee will retire on 30 June of years ending 
           with an odd number.

      15.3 A person appointed to the Administrative Council whose
           term expires is eligible for reappointment.
There is no mechanism for the replacement or sacking of a member of the Administrative Council, especially the Chairperson whose tenure may exceed the term of the Government that appointed him or her. It would be unfortunate if IIA's rules did not permit the Government to substitute a new nominee upon a change of Government, given that the major political parties disagree as to the merits of Internet censorship.
      15.4 The Administrative Council will:
           (a) meet at least once every 3 calendar months.
           (b) review and monitor the effectiveness of the Code by:
               * monitoring the business conduct of the Internet industry
                 in Australia;
               * monitoring international developments in the regulation
                 of the Internet;
               * the collection of data relating to sharp practices,
                 disputes with users, mediations and code compliance
               * consulting, cooperation and the sharing of information
                 with users, government agencies and consumer groups, 
                 and other persons or bodies as appropriate in Australia 
                 and internationally, regarding the operation of the code 
                 and in relation to suitable revisions and amendments
           (c) advise and produce an annual report on:
               * the effectiveness of the Code
               * compliance with the Code
               * the impact of the Code on the Internet industry,
                 users and the public at large.
           (d) obtain from the Internet industry adequate finance for
               administration of the Code and preparation of budgets 
               and financial reports.
           (e) report to the Relevant Authorities any matters that come
               to its attention which in its opinion may be breaches of 
               the law.
This may incur upon the Council liability for defamation or breaches of section 276 of the Telecommunications Act, while the definition of "Relevant Authorities" remains so vague.
      15.5 The Administrative Council may recommend amendments of the Code 
           on request or by its own initiative.
      15.6 To amend the Code the Administrative Council must complete
           the following steps:
           (a) consult with industry, government, users, user 
           representatives and the general public regarding the proposed 
           amendment.
           (b) resolve the terms of any proposed amendments
           (c) give notice of the terms of the proposed amendment
           to each Code Subscriber, users and the general public.
           (d) allow 60 days to provide comments to the Administrative
           Council.
           (e) receive comments from Code Subscribers.
At this point the wider Internet community should be consulted, to avoid the debacle of the release version of the Code being flamed upon entry.
           (f) adopt or reject the proposed amendment with or without
           modifications (not including modifications that would make 
           the substance of the proposed amendment substantively different 
           to the substance originally proposed).
           (g) obtain the approval of the Board of IIA
           (h) give notice of the Code as amended to each Code Subscriber
           and to the general public.

      15.7 Amendments to the Code will come into effect 45 days after 
           completion of the step described in clause 15.6 (h).

      15.8 The Administrative Council shall be funded by:
           (a) an annual registration fee to be set by the Administrative
           Council and paid by Code Subscribers; and
           (b) sponsorship.

      15.9 The Administrative Council will maintain its own bank
           account, styled as "[name to be determined and publicised]" 
           and financial records.
There is a strong impression that despite asking IIA members to pay subscriptions and sign the Code, IIA has not yet established the Administrative Council.
      15.10 Each member of the Administrative Council is indemnified
           from the funds of the Administrative Council against any 
           liability they may incur or claim that might be made against 
           them arising from the performance in good faith of their duties 
           of office.
This is far too broad, and invites irresponsibility and intransigence on the part of the Council.
      15.11 Code Subscribers agree and each person lodging a complaint
           under the Code must agree not to make any claim or commence 
           any action against IIA the Administrative Council or any of 
           its members in relation to any matter related to their 
           complaint.
This is far too broad, and invites irresponsibility and intransigence on the part of the Council. Attempts to make an ISP's struggle to stay Code Compliant non-justiciable are unlikely to impress the Courts.
      16. HANDLING OF DIFFICULTIES AND COMPLAINTS
      16.1 Code Subscribers will use reasonable endeavours to resolve 
           all user difficulties and complaints of their respective users:
           (a) notified in person, or received by telephone within 24 hours.
           (b) received by email, within 3 working days.
           (c) received by letter, within 10 working days.
      16.2 Where complaints cannot be resolved to the satisfaction of 
           the user within the time frame set out in subclause 16.1, 
           Code Subscribers will:
           (a) direct the user to a Relevant Authority with the statutory 
           jurisdiction to resolve the complaint; or
This is a foolish clause, and advice to complainants as to complaints procedures is the task of IIA, not the Code Subscriber under complaint. Again, the poor definition of "Relevant Authority" makes the operation of the clause especially problematic.
           (b) to the relevant industry dispute scheme with jurisdiction
           to deal with the complaint; or where no such body or scheme 
           exists,
TIO complaints are despised by the ISP industry as complicated, expensive and handled with a lack of technical knowledge. ISPs should not be required to tell users they can complain to the TIO when other avenues exist.
           (c) inform each user who expresses dissatisfaction with
           the response of the Code Subscriber to a difficulty or 
           complaint that they may ask for the matter ("dispute") to be 
           mediated pursuant to this Code.
      16.3 If a user asks for a dispute to be mediated pursuant to this 
           Code:
           (a) the chief executive officer of the Code Subscriber or his 
           or her delegate will ask the user to set out the basis of the 
           dispute in writing and provide it to the Code Subscriber.
           (b) if the user is not receiving a service from the Code
           Subscriber because of the dispute, the Code Subscriber will 
           reinstate the service for the period of the mediation, provided 
           that the user pays the Code Subscribers usual fee for the 
           relevant service in full and in advance.
This is an incredible loophole for a user whose Internet Access was terminated for good cause.
           (c) the Code Subscriber will consider the user's written
           submission and, if it cannot settle the matter, will:
           * provide a written response within 10 days.
           * provide a copy of both the written submissions to the
             Chairperson of the Administrative Council.
           (d) the Chairperson of the Administrative Council will appoint
           a mediator, acceptable to both parties, to conduct a mediation. 
           The Chairperson of the Administrative Council shall have the 
           discretion to refuse to appoint a mediator if, in his or her 
           opinion, a complaint is frivolous of vexatious.
This gives too much power to a Government appointee.
           (e) unless the parties agree otherwise, the mediator shall
           first attempt to resolve the complaint online or by telephone 
           or facsimile.  Should this fail, the Mediator must set a time 
           and a place, reasonably convenient to both parties of the 
           conduct of mediation
           (f) the reasonable costs of the mediation will be borne by
           the Code Subscriber. The other costs of either party, including 
           legal costs, if any, shall be paid by the party incurring 
           the cost.

      16.4 [This paragraph subject to legislation so empowering
           the ABA] As a last resort, and in respect of disputes involving 
           matters within the jurisdiction of the Australian Broadcasting 
           Authority to adjudicate, Code Subscribers agree to submit to 
           the jurisdiction of that Authority for the final resolution 
           of disputes arising under this Code.
It would be preferable to first establish what, if any powers are granted to the ABA before making it the only appeal against a Government-run Administrative Council.
      16.5 If resolution of the dispute is not achieved by the process 
           described in clause 16.3, or where relevant, 16.4, either party
           may seek alternative legal remedies.
      17. REGISTRATION AND DEREGISTRATION UNDER THE CODE
      17.1 Code Subscribers are:
          (a) current financial members of the IIA or appropriately
          affiliated organisations of the IIA: or
          (b) any person or organisation that has applied to be a Code 
          Subscriber in the form approved by the Administrative Council and
          paid the fee determined from time to time by the Administrative
          Council.
      17.2 Subject to clause 17.7, only Code Subscribers shall be 
          permitted to use the Code Compliance Symbol.
And therefore only members of the IIA can trade as ISPs under proposed Federal legislation, since only Code Compliant ISPs will avoid prosecution for a user's content.

However, this may not be the whole story under proposed Federal laws. It may be, as with many other "self-regulatory" schemes, that registration of Code status with the Australian Broadcasting Authority (or similar body) will be required, at unknown burden of cost and further regulation. If the ABA requires $10,000 to register Code Compliance under the Broadcasting Services Act, IIA will have co-operated in the wholesale slaughter of the small-to-medium ISP industry by making the Code Symbol the only defence against prosecution.

      17.3 The Administrative Council shall make a list of Code
           Subscribers available for public inspection on the Internet.
So far, that has not been done - presumably because the Administrative Council has not been appointed.
      17.4 If a complaint is received that a Code Subscriber is not 
           complying with the Code, the Administrative Council will 
           request a response to the complaint from the Subscriber. If a 
           response is not received, or the response is considered 
           inadequate, the Council will issue a notice requiring the 
           Code Subscriber to copy with the code within 30 days and/or
           issue a censure or warning to the Code Subscriber, require 
           that the Code Subscriber issue a corrective letter, or engage 
           in corrective advertising, in a suitable case the Council may 
           resolve to require withdrawal of advertisements, or payment 
           of compensation.

      17.5 If the Code Subscriber fails to abide by the Administrative
           Council's notice issued under 17.4(b) the matter shall be 
           considered by a member of the Administrative Council appointed 
           by the Administrative Council to deal with such matters 
           ("Nominated Member") and if the Nominated Members so decides 
           the Code Subscriber cease to have permission:
           (a) to use the Code Compliance Symbol, and
           (b) to represent in any way that it complies with, or
           its conduct is approved by, the Code.
So an ISP may lose its business on the say-so of one person, without an independent hearing.
      17.6 A Code Subscriber considered by a Nominated Member under 
           clause 17.5 will be afforded an opportunity to be heard by 
           the Nominated Member before a decision is made.
This is poorly written. The remedy would be to substitute the phrase "... under consideration by a Nominated member..." and to detail the process of the hearing referred-to. As an ISP may be losing its livelihood, a due process should be "afforded" .
      17.7 If after consideration of a matter under clause 17.5 the 
           Nominated Member so determines, the Code Subscriber must within 
           3 days of the decision:
           (a) notify its Users that it has ceased to be a Code Subscriber,
           (b) stop using the Code Compliance Symbol, and
           (c) Make no further representation that it complies with
           the Code; or
           (d) lodge a notice of appeal with the Administrative Council
           whereupon the decision of the Nominated Member shall be 
           suspended until the Administrative Council reconsiders the 
           matter

      17.8 The Administrative Council shall consider any notice of appeal 
           from the decision of a Nominated Member at its next meeting,
           shall give the relevant code Subscriber a right to be heard 
           and may make a final determination of the matter by ordinary 
           resolution.

      17.9 In subscribing to this Code, Code Subscribers agree to be 
           bound by its provisions and acknowledge that failure to 
           comply with clause 17.7 may render them liable for legal 
           action, which may be instituted by the IIA on behalf, and on 
           the recommendation, of the Administrative Council.
A powerful sanction, one which makes the controversial censorship requirements of this draft of the Code especially odious. ISPs will be faced with the choice of signing a censorious Code or going out of business.
      17.10 An organisation or person denied use of the Code Compliance 
           Symbol under clause 17.7 may apply in writing to the 
           Administrative Council to be permitted to use the Code 
           Compliance Symbol again ("reinstatement") after 12 months from 
           the date of removal.
There is no justification for a 12-month cooling-off period.
      17.11 No application for reinstatement under clause 17.10 shall 
           be reasonably refused provided the applicant satisfies the 
           Administrative Council that it is willing to comply with the 
           Code, and has adequate procedures in place and has taken all 
           reasonable steps to ensure that is capable of complying with 
           the Code.
This "Star Chamber" has the effective power to deny a person the ability to work, since without Code Compliance under the proposed Federal framework for regulation an ISP or Content Provider would be subject to unreasonable liability for their users' content. For this reason, a Government appointee is an unsuitable Chairperson, and there should be avenues for appeal against the IIA's decision.

4. CONCLUSION

The IIA has let down the Internet community and its own members by surrendering to the Federal Government's plan to bring ISPs under the Broadcasting Services Act in relation to content. ISPs are already subject to the Telecommunications Act, which establishes principles of user privacy and the regulation of consumer complaints by the Telecommunications Industry Ombudsman. It is strongly arguable that ISPs should be categorised as similar to carriers, providing bandwidth only without liability for content, and that IIA would be better representing the aspirations of its members if it used its relationship with Government to lobby for a general exemption for ISPs against liability. Telstra and the other carriers have been able to use their access to Government to achieve this outcome, and it is logical that as ISPs have little control over the material their users choose to access from the Internet the same sort of legislative protection should apply.

This Code represents the worst of both worlds - an industry regulated by dozens of State and Federal bodies, classifying under a variety of vague classification schemes, and the ever-present threat of delicencing. By simply refusing to regulate content, a matter already well covered under laws of general application, IIA could regain credibility with the Australian ISP and Internet community and provide real leadership.

The Code in future may well have positive outcomes for consumers, provided it repudiates content rating and regulation, is opened up to consultation with privacy and consumer advocates and is pulled from the cosy relationship with Government implicit in the Federal Government's announced framework for Internet regulation. However, until such time as IIA shows courage and independence in its dealings with Government and a commitment to the free expression that makes communication via the Internet a unique phenomenon, EFA will oppose the implementation of the Code and urge consumer boycotts of ISPs that sign it.

Kimberley Heitman, B.Juris Llb,
Chair,
Electronic Frontiers Australia Inc.
7th March 1999