[ EFA ] Electronic Frontiers Australia

PO Box 382 North Adelaide SA 5006  
Tel: (07) 3424 0201 Fax: (07) 3424 0241  
Email: mail@efa.org.au  
Web: http://www.efa.org.au/  


27 March 2001

The Hon Trevor Griffin, MLC
Attorney General
GPO Box 464

Fax: 08 8207 1736 Page 1 of 5

Dear Attorney

Classification (Publications, Films and Computer Games) (Misc) Amendment Bill 2000

We 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.

Yours sincerely

Irene Graham
Executive Director
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 censor adults.

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 for classification.

Procedures yet to be established include:

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 action."
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 privacy."
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 approved system.


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 http://www.efa.org.au/Publish/sabillanalysis.html.

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