27 March 2001
The Hon Trevor Griffin, MLC
GPO Box 464
ADELAIDE SA 5001
Fax: 08 8207 1736 Page 1 of 5
Classification (Publications, Films and Computer Games) (Misc) Amendment Bill 2000
refer to your
letter of 19 March 2001.
Please find attached our response to certain statements in your letter. We believe these matters warrant further investigation by you before the Bill proceeds to the Committee stage.
Electronic Frontiers Australia Inc.
EFA response to
letter from the SA Attorney-General of 19 March 2001 in answer to EFA's letter of 7 March 2001.
(Note: Italicised paragraphs below are extracts from the letter from the SA Attorney-General. Non-italicised
paragraphs contain EFA's comments.)
- Protection of minors?
"However, in my view, prevention is better than cure. It is better to protect minors
from exposure to the material, rather than wait for them to be exposed and then prosecute
the content provider. The harm is done.
The aim is to prevent children accessing the material."
How will this Bill protect minors? At best it will prevent them from accessing
adult material created by content providers in South Australia. Given the
size of the Internet, this is akin to claiming to reduce beach drownings by removing a bucket of water from the ocean.
Other countries have flirted briefly with Internet censorship, but have recognised that it is
an ineffective approach and have moved on to other tactics. South Australia is ignoring
world's best practice in this field if it proceeds with this Bill in its current form.
The price to be paid for such a minimal outcome is that adult South Australians will
self-censor, fearful of horrendous fines for saying anything online that is unsuitable for the
children. Furthermore, some parents may accept the government's claims at face value, which could introduce unwarranted complacency into the degree of supervision they exercise over their
children's Internet usage.
It seems quite clear that the Bill is not intended to protect minors but to
- Inappropriateness of Film Guidelines
"To avoid committing an offence in either case, in respect of stored content, age-verification
will be required. The SA provision, by using the definition of 'restricted access
systems' in the Broadcasting Services Act, offers content providers
some certainty about what they must do to avoid offending."
"It is true that the laws in other jurisdictions apply both the film
and publications guidelines to Internet content. However, the view has been
taken in respect of the model provisions that it is preferable
that the one set of guidelines be applicable to all Internet content.
This avoids legal argument (and uncertainty for content providers)
about which set applies to their particular content, and accommodates the fact
that Internet content can be comprised of any mix of text,
graphics, audio and video material. I do not consider that this approach
is more restrictive."
The film guidelines are far more restrictive than the publications
guidelines. For example, Category 1 or 2 publications,
which can be legally sold to adults in SA, consist largely of sexually-explicit material.
A film with the same degree of explicit content would be classified X, which
is banned from sale or distribution in South Australia, even to adults.
The conclusion is obvious. The film guidelines have been applied to Internet
content in order to implement a more restrictive censorship regime, despite
the fact that most web pages more closely resemble a publication than a film.
- The Classification problem
"You say that the content provider is denied any opportunity to have
the material classified before making it available online. I do not agree.
The material can be put on disc and submitted to the Office of Film and Literature
Classification for classification as a film. As long as the material
is not altered before uploading, the same classification will apply
when it is online. Any content provider who is concerned that his or her
content may warrant legal restriction is at liberty to do this."
With respect, these statements betray ignorance of developments in website
technology. Many modern websites, particularly those developed for
commercial or E-commerce purposes, employ server-based active content,
which means that the web page is generated on the fly when a particular
access request is received. The content itself is stored on a database, and
it is not possible to convey the material in a static file
format since it is dynamically generated. This also means that web page
content is not constant, a feature which distinguishes it dramatically from
conventional media such as films and publications. We therefore dispute
that "the material can be put on disc and submitted." We also question
your statement that the classification holds "as long as the material
is not altered before uploading". The very nature of the Internet is
that material is always changing, rarely constant. Your statement
carries the imputation that a website would have to be reclassified
every time it changed, which is clearly not feasible.
A further problem arises with advertising and other content that may
appear on a web page but is randomly generated from a site remote from the
original server. Again it is not possible to readily capture all the
variations that may occur.
We further dispute your contention that the Office of Film and Literature
Classification is equipped to classify Internet content. Our inquiries
to the OFLC reveal that they have no such procedures in place, and that
they have yet to resolve the challenges that Internet content presents
Procedures yet to be established include:
- Submission guidelines
- Appeal provisions
- Dynamic (as opposed to static) content
- Impact of hyperlinks
Until and unless the OFLC is ready to classify Internet content as
submitted by members of the public, it is contrary to natural justice to
impose $10,000 fines for "a wrong guess".
We respectfully suggest that your advice in this matter is unsound. EFA
would be happy to provide further information on the technical issues
associated with website deployment should your department wish to avail
itself of our knowledge and experience.
- Injustice of the Recklessness provision
"The court must accept the decision of the Board on whether the item
was R. However, the question before the court is whether the
defendant, at the time of making the content available, knew or was
reckless as to this fact. There is therefore no penalty for guessing
wrongly, as you suggest, but only a penalty for intentional or reckless
In your second reading speech, you indicated that what would be classified R is not "fairly clear".
Given that the boundary between MA15+ and R, or even between R and RC, is
subjective and problematical, it is therefore unjust to apply penalties
as to recklessness of intent. The recent examples of the
Mapplethorpe book, and films such as Romance, Saving Private Ryan and
The General's Daughter, all of which were reclassified by the Review Board,
illustrate how subjective the classification process can be.
Content providers who make an effort to interpret the guidelines and assess the classification, but who make the wrong guess will likely find themselves in court. The defence they are offered is that they did not know, and were not aware of a substantial risk, that the matter was/would be illegal. If they claim this defence, they will then be accused of being reckless as to risk. To prove they were not reckless they need to show, at least, that they tried to interpret and comply with the guidelines. In so doing, they admit they were aware of a substantial risk that they could be wrong because the guidelines are vague, broad, subjective and the "correct" classification depends on a decision of the Classification Board, a decision which is not, under the law, required to be unanimous.
The matter of recklessness is further addressed in section 7 of EFA's analysis of the Bill available at:
- Subjectivity of Classification
" ...films in recent years that have been classified MA15+ include:
- Traffic (drug use and drug trafficking theme),
- Saving Private Ryan (war theme),
- The Cider House Rules (abortion and incest theme),
- The General's Daughter (rape theme),
- ... "
As stated in our previous letter of 19th March,
both Saving Private Ryan and The General's Daughter were classified R by the national Classification Board. These films were subsequently classified MA on appeal to the Classification Review Board, further demonstrating the point EFA has previously made that online publishers cannot be expected to know how any particular material would be classified, since even members of the two Classification Boards do not necessarily agree and evidently those who drafted the SA Bill recognise this is not "fairly clear".
- Guidelines Review necessary
"I note your comments that the film guidelines were not designed to
apply to text or Internet content. This is of course correct, and I agree that a
review of the guidelines with a view to their application to Internet
content is desirable. Such a review is proposed for later this year.
I would encourage your members to contribute their views to the Office
of Film and Literature Classification."
This confirms that the current amendments to the Act in respect of Internet content are
premature. EFA contends that the Bill should be deferred until the classification
questions are resolved.
A further problem with defining the term "film" to incorporate Internet content concerns
the existing offences under the Act for sale and display of an unclassified film. Does not this
imply that public places such as libraries, Internet cafes and kiosks, and perhaps even schools,
may be infringing the Act by making Internet terminals publicly available?
- Unjust penalties
"As to penalties, the reason why a higher penalty applies to putting
material on the Internet than to selling it to an individual or screening
to a group, is that on the Internet it will be potentially available to a much
larger group of people, so the harm is greater."
The Internet is not like television. The assertion that content will be potentially
more widely seen via this medium cannot be sustained as a general assertion, since many websites
attract few readers. Are busy city bookstores subject to higher penalties under existing
law than a small country newsagent?
- Problems with Restricted Access provisions
"5. The provision of credit card details is not mandatory in respect
of approved restricted access systems. Hard copy proof of age, such as
a driver's license, birth certificate, passport, seniors card or
student card is acceptable. Further, the person is only required
to prove his or her age because he or she chooses to seek admission to an
age-limited site. This is comparable with the powers, offline, for
the occupiers of cinemas or restricted premises to verify the age
of a person seeking admission. I do not believe this is an abuse of
Hard copy proof of age such as a driver's licence is totally unworkable
in the online environment. How does one show a driver's licence to a
website operator? Even if one were to scan and transmit an image of a
document to the operator, how is the latter to know that the identification
actually belongs to the sender? It is not possible to visually compare a
photograph with the person presenting it as applies in real world environment.
Responsible website operators around the world
have developed systems such as Adult Check in an attempt to restrict
access to their systems to adults. These systems are not foolproof, but they
are far more practical than the blind bureaucratic rules inherent in the ABA's
EFA urges the South Australian Government to suspend the Bill until its full ramifications have been investigated, criminal justice issues addressed, the practical problems with the Bill's provisions have been adequately addressed, and appropriate amendments made. EFA further
contends that the Bill should be delayed until the projected review of OFLC classification
guidelines has been completed and proper consideration has been given to the particular
problems presented by the Internet in comparison with traditional media censorship.
EFA remains concerned that the proposed legislation treats online publishers less fairly under criminal law than offline publishers and that it appears existing classification laws and related administrative procedures have not been adequately considered by legislative drafters. Further information in this regard is available in EFA's comprehensive analysis of the Bill available at