EFA logo Electronic Frontiers Australia
PO Box 382 North Adelaide SA 5006
Email: [email protected]
Phone: 08 8362 5183 Fax: 08 8362 5183

30 April 1999

The Secretary,
Senate Select Committee on Information Technologies
Parliament House
Via email [email protected]
Facsimile 02 6277 5866

Dear Mr McLean,

EFA Submission

Further to the invitation to make a submission to the re-established Committee in relation to the following terms of reference:

"To examine the Government's decision to establish a regulatory framework relating to illegal or offensive material published and transmitter through online services such as the Internet"

EFA appreciates the opportunity to make a submission, and requests that in accordance with previous practice, EFA be granted permission to publish this submission online.


  1. Executive Summary
  2. Introduction
  3. About Electronic Frontiers Australia Inc
  4. EFA position on Internet censorship.
  5. Consumer rights
  6. Unseemly haste
  7. Community attitudes to Internet censorship
  8. Classification and convergence
  9. Effects on content providers
  10. Impact on the ABA and OFLC
  11. Effectiveness of the proposals
  12. Industry and commerce impact
  13. Implementation costs
  14. The wording of the Bill
  15. Freedom to speak and read
  16. Recommendations

1. Executive Summary

Our view of the proposed Online Services legislation is simple and to the point. This legislation will achieve no positive outcomes but will impose a tremendous cost burden on the developing information economy in Australia.

It will not protect children from objectionable content, since overseas sites are out of the reach of Australian law and only a small fraction of such content overseas can conceivably be blocked.

It will create congestion and bottlenecks that will impede the flow of Internet traffic.

It will increase costs and threaten the economic viability of ISPs.

It will reduce the freedoms of all Australians to choose what they read.

It will turn Australia into a paternalistic regime, with characteristics on a par with countries like China, Burma and Iran.

The legislation is not wanted by the ISP industry. It is not wanted by the vast majority of Internet users. It is not wanted by the general community.

While industry regulation is usually provided to protect consumers against business, this Bill does the opposite. The Bill provides no consumer protections (such as privacy protections and the freedom to read) and ISPs who take down or block access to a site under the Bill indemnified against actions by users.

The Bill establishes no rights for content providers at all. They aren't even in the list of people authorised to appeal an ABA notice.

The government has provided insufficient time for community and industry consultation in its rush to pass this legislation. Although Internet regulation has been expected for some time, the actual proposals are far worse than anyone had expected.

The legislation has the potential to swamp the ABA with complaints about material that is not illegal but arbitrarily censored under guidelines appropriate to television, a totally different medium.

Blocking of overseas sites by ISPs is a costly and inefficient process that will clog every Internet node in the country as traffic is examined for infringement of the ABA blacklist.

EFA submits that there is some Internet content that is universally condemned, and global agreement on the definition would be an appropriate response by an Australian government intent on making an effective contribution to dealing with criminal content. Content regulation of the Internet should be left to the police, leaving the ABA with a role in relation to industry issues and education of the community. However international agencies such as Interpol have no interest in investigating erotica.

Australia is out of step with the world on this issue. No other democracy has attempted censorship of this nature, and even Malaysia recently abandoned attempts at local censorship of the Internet.

EFA would advise the committee to recommend that the government not proceed with this legislation. It is both unnecessary and dangerous. Instead the government should work with industry and the community to come up with a regulatory regime that is realistic and workable.

2. Introduction

In July 1996 Senator Alston told an INTIAA breakfast meeting: The Internet has not changed since 1996 and EFA remains of the view that it is both inappropriate and impractical to attempt to regulate content on the world-wide Internet in a manner similar to regulation of Australian television.

3. About Electronic Frontiers Australia

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation formed to protect and promote the civil liberties of users and operators of computer based communications systems. EFA was formed in January 1994 and incorporated under South Australian law in May 1994.

Our major goals are to advocate the amendment of laws and regulations in Australia and elsewhere (both current and proposed) which restrict free speech and unfettered access to information and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.

4. EFA Position On Internet Censorship

EFA submits that legislative attempts to regulate content on the Internet should be abandoned. Publication of globally agreed illegal material can already be prosecuted under existing law, and regulations concerning contentious material are inappropriate in a world where cultural differences cannot be easily reconciled.

Self-regulation is no more desirable than government regulation when it forces industry organisations and users to take responsibility for government censorship under the guise of self-regulation. Furthermore, claims that the proposed legislation, administered by the ABA and the OFLC, is a self-regulatory regime are clearly not factual.

EFA strongly supports the principle that content creators rather than carriage service providers should be responsible for online content, and that criminal culpability for such content should apply only to material that is globally and unequivocally recognised as illegal.

The physical location of Internet content is a matter of little relevance. A content provider in any Australian State or Territory can have content hosted elsewhere in Australia or any other country. Realistically, to deny Australian content hosts the right to host content legal and protected elsewhere is to make Australian sites uniquely disadvantaged in a global market.

All commentators accept that there is some Internet content that is universally condemned, and some consider international efforts to eradicate it are capable of success. EFA submits that seeking to achieve global agreement on the definition would be an appropriate response by an Australian Government intent on making an effective contribution to dealing with criminal content. Obviously, the narrowest definitions of illegal content are most likely to be successfully prohibited - a wide definition that includes material routinely available in other countries and protected as free speech in the United States (such as material classified R and X and the vast majority of material Refused Classification in Australia) would be pointless and unenforceable. International agencies such as Interpol have no interest in investigating erotica. Investigation of illegal content on the Internet should be left to the police, leaving the ABA with a role in relation to industry issues and education of the community.

The oft-quoted issue of "protection of minors from exposure to material that may be harmful to them" invites debate over the means to that end. In the event that parents consider that filtering Internet content is a desirable alternative to adequately teaching minors to deal with all types of Internet content, this is best achieved with personally chosen software programs and services and proper supervision appropriate to age and maturity. The increasing emergence of specialist content providers for children will reduce the need for supervision in some cases. Minors are not all impressionable victims nor hardened hackers, and parents are better placed than the Government to determine whether a problem exists with their child's use of the Internet. The development of a range of online services and market forces are a better means of giving parents control over their children's activities.

As President Clinton resolved, following the defeat of the Communications Decency Act, it is the role of the police to track down paedophiles and terrorists - and it is up to parents to supervise their child's use of the Internet.

5. Consumer Rights

The traditional role of government regulation of industry is to protect consumers. This legislation not only provides no consumer protections, but also tilts the playing field against the consumer and in favour of industry. In particular, it fails to address issues of privacy and freedom to read.

Especially worrying in this regard is the clause of the Bill (section 84) indemnifying service providers and content hosts from civil proceedings in respect of anything done to comply with the Bill's takedown or access blocking requirements.


The Bill provides no protection for user privacy. Email and private data stored on Internet connected servers are included in the definition of "Internet content". While complaints about such content may not be likely, such content (or content substantially similar to it) may be classified elsewhere and deemed "prohibited". If so, private data will fall under the scope of the Bill's enforcement clauses. For example, it is possible for Australian users to have overseas web pages emailed to them. Where such web pages have been declared "prohibited content" in an ABA notice then, under this Bill, ISPs will be required to try and block such email. Monitoring users' email in an attempt to do this would be a totally unacceptable invasion of user privacy, but this Bill does not rule it out.

More generally, almost all web traffic consists of private communications - personal access to information. Users expect privacy for this in the same way that they expect their library borrowing records to be private. The Bill provides no such protection, and indeed creates defences for businesses infringing on user privacy. Problems also exist with the lodging of complaints. An ISP employee may, as a result of a technical addressing problem, see copies of private user email. Under this legislation, they could report the email (as potentially prohibited content) and would be indemnified against civil proceedings - even if so doing breached both the ISPs contract with the user and the employee's terms of employment.

Freedom to Read

Nor does the Bill provide any protection for users' freedom to read. In attempting to comply with access-prevention and takedown notices from the ABA, service providers and content hosts are at complete liberty to exceed the scope of the notices. Indeed, if the notices are at all vague or unclear as to the precise extent of the material involved, ISPs and ICHs will be forced to interpret them in the widest possible way, least they fail to meet their obligations under the Bill.

If, for example, an ISP is given notice to block scores of different pages located on Geocities (www.geocities.com, a large site which provides free web hosting), then the ISP may choose, for technical reasons or otherwise, to block all of Geocities. This will drastically affect its users' freedom to read extensive amounts of perfectly legal material. But under this Bill, its users will have no recourse, even if by so doing the ISP has breached its contractual obligations.

Freedom to Publish

Under this Bill, users publishing content can have it removed with no warning. Neither the ABA, the OFLC, nor their content hosting service is obliged to inform them before issuing or executing a takedown notice. Moreover, there is no obligation for affected users to be informed as to which portions of their content are deemed "prohibited".


The Bill fails to provide consumer protections that it could reasonably be expected to. In an attempt to justify unreasonable burdens on ISPs, the legislation has given them excessive powers over their users.

6. Unseemly Haste

The Government gave an undertaking to the industry that they would not proceed in haste.

On 6th August 1997, representatives of EFA, WAIA, SAIA, ISOC-AU, IIA and ACS met with Kaaren Koomen of the ABA, Brian Stewart of NOIE and a ministerial advisor to Senator Alston, Marie Kelly. We said that the draft proposals (which were consistent with the Bill that how now been introduced) were unacceptable to the Internet industry and users, were technically incompetent and would not bring benefits to any end-users.

We were promised that the legislation would be subject to extensive consultation before being presented by Government to Parliament, and specifically that ' A further opportunity for comment will be provided through an 'exposure draft' of amendments to the Broadcasting Services Act which will be released before it is introduced into Parliament later this year.' This commitment is still online at http://www.dcita.gov.au/nsapi-graphics/?MIval=dca_dispdoc&ID=366

Similarly, many submissions made to the Senate Standing Committee on IT have been ignored. The Senate IT committee said they would not report on the desirability of Internet censorship until the Government responded to an earlier report - it seems the Government's response is to enact laws that have been criticised by the Internet industry for 3 years.

At the end of the second reading speech there was an order that the Bill be reconsidered in the winter sittings. This is apparently standard procedure according to Senate Standing Order 111.

The intent of this standing order is clearly to allow a Bill to lay on the table for adequate comment. EFA has not found any motion to have standing order 111 waived for this Bill, although there have been such motions for a few others.

The Bill clearly does not warrant urgent treatment, especially as there has been insufficient time allowed for public comment.

7. Community Attitudes To Internet Censorship

A June 1997 survey by respected Internet analysts www.consult has revealed that only a tiny fraction of Australian Internet users are concerned about indecent content online.

A larger, but still small, proportion of non-users perceive it to be a problem.

In the June 1997 www.consult survey of Australian Internet users, fewer than 3% of the 8,591 respondents cited indecent material as a concern (compared with 18% citing privacy and 28% access times). And in a telephone survey of over 1,000 _non-users_ of the Internet, only 15% mentioned indecent material on the Internet as a concern, even with prompting.

www.consult principal Ramin Marzbani noted "this is consistent with all our surveys in Australia to date (over 20,000 responses in total). Indecent content online is simply not an issue. If the government wants to get involved with the Internet, then they should think about what they can do to improve access times and alleviate user concerns about privacy."

www.consult (http://www.consultco.com.au) is the largest Internet research organisation in Australia, considered by BRW to produce "the most thorough research into Australia's online industry".

In its Telecommunications Performance Report 1997-8, which was presented to the Minister, the Australian Communications Authority states that it commissioned a report from www.consult on 'ISPs and consumer ISP issues. It quotes the 5th www.consult Australian Online User Report; June-July 1998. Referring to this report the ACA told the Minister, at page 116, 'Inappropriate content was the smallest concern of Internet users surveyed.'

A straw poll in The Australian (29 July 1997) asking "Is Communication Minister Richard Alston's latest proposal for Internet regulation a reasonable compromise?" -- 93% said "NO".

An Australian Bureau of Statistics survey commissioned by the OFLC (OFLC 1994) explored community perceptions of film, video and computer games...In relation to adult material, i.e. X-rated videotapes, two out of three respondents who held a firm opinion believed this material should be available to adults. A follow-up survey conducted by the Bureau in August 1994 indicated that 78 per cent of respondents supported the availability of R classified films and videos. Source: ABA On-line Services Investigation Final Report, 1996. http://www.aba.gov.au/what/online/olsfin4.htm

An AGB McNair poll showed 83 per cent of Australians thought non-violent sexually explicit X-rated videos should be legally available. Source: The Age, 25 Apr 97

8. Classification And Convergence

An underlying assumption of the Bill is that the Internet is a form of broadcasting, akin to television. This is apparent both from the choice of the Film and Video classification system for Internet content and the decision to give jurisdiction to the Australian Broadcasting Authority.

In the explanatory memorandum (http://www.multiline.com.au/~kheit/explan.html) accompanying the Bill we find:

Broadcasting and Convergence

Broadcast-style 'push' technology has only a minor role online and user selection will continue to dominate Internet content delivery. It may be that convergence will see television merge with the Internet, but this is a long way from happening. Moreover, many people believe that convergence will result in television becoming more like the Internet rather than vice versa.

At one point the memorandum says: The definition of "Internet content" excludes information transmitted in the form of a broadcasting service. So it appears that Internet content has to be regulated as strictly as broadcasting even though broadcasting services are excluded from the category.

Discretionary Access

Access to online content is in fact highly discretionary, arguably more so than access to printed materials. Books and magazines can be and are left lying around public places such as trains, parks, and even schools. This is not possible with Net content.

Access to online content is certainly far more discretionary than access to television or radio.

The only extent to which web access is not discretionary is in the choice of start-up page, which is typically configured by the computer administrator or vendor, or defaults to the browsers default page. The browser default pages are innocuous, as are the default pages of major computer vendors.

Film or Publication?

It is unlikely, due to bandwidth constraints, that significant amounts of streaming video will be delivered over the Net in the near future, especially with the high prices for bandwidth in Australia. The vast bulk of online content will continue to be text and graphics, and rating this as if it were video will result in many anomalies, such as publications sold without restriction in bookshops being illegal online.

Broadcasting is the distribution method for only a tiny fraction of Internet content. It is not, therefore, reasonable to regulate all Internet content as a form of broadcasting.

Application of the Film and Video classification scheme to Internet content is totally ludicrous.

9. Effects On Content Providers

Much of the criticism of the government censorship legislation has focused on the liabilities of ISPs, and in particular on the blocking of content sourced from overseas. The concern here is with the effects of the legislation on Australian content providers and the content industry.

Most Australian content-providers are not large corporations. They are individuals, non-profit organisations, and small businesses. It is important to keep this in mind. When reading "content-provider" in what follows, you should picture an individual (perhaps a teenager) with their own home page, a group of friends running a small online magazine (perhaps for fan-fiction), or a small organisation (perhaps providing resources and advice for the unemployed). There are hundreds if not thousands of such content-providers for every Ninemsn or Fairfax.

Regulation of R-rated Material

The legislation creates regulations for the publication of R-rated content, with classification done using the Film and Video guidelines. Internet content hosted in Australia is prohibited content if: ... (b) the content has been classified R by the Classification Board and access to the content is not subject to a restricted access system. If the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA must give the relevant Internet content host a final take-down notice directing the host not to host the prohibited content. That is, R-rated material must be "subject to a restricted access system", or it is illegal and the ABA can direct an Internet content host to remove it. The Internet content host must remove the material within 24 hours. Note that there is no requirement for the OFLC, the ABA, or the content hosting service to notify the actual owner of the content (and the 24-hour deadline demanded of content hosting services would make this impractical for them, anyway).

What does R-rated mean?

Looking at the OFLC's Cinema & Video Ratings Guide on the OFLC's web site we find:It is obvious that many books classified Unrestricted as publications and sold without any controls in bookshops would fail to satisfy these criteria and would hence be given an R-rating (or higher) for the purposes of this legislation.

Restricted Access Systems

What are acceptable 'restricted access systems'?
(1) The ABA may, by written instrument, declare that a specified access-control system is a restricted access system in relation to Internet content for the purposes of this Schedule. A declaration under this subclause has effect accordingly. Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(2) In making an instrument under subclause (1), the ABA must have regard to: (a) the objective of protecting children from exposure to Internet content that is unsuitable for children; and (b) such other matters (if any) as the ABA considers relevant.

Until the ABA releases specifications for access control systems, all R-rated material will be "prohibited content". It's not entirely clear what "restricted access systems" will be considered acceptable. Elsewhere there are references to "adult verification procedures", however, and the obvious interpretation is that systems such as AdultCheck, currently used on many pornography sites, are what is envisaged.

Unfortunately forcing sites to install such systems creates several problems:

The net effect of this is to effectively cripple any site using adult verification. Content-providers are not trained in censorship law. Most have little or no understanding of the censorship system, let alone the skills and background necessary to apply a classification system designed for films and videos to web pages. The boundaries between classifications are convoluted and difficult to ascertain, even for trained censors. This is why the OFLC charges some $4000 for a G/PG/M/MA/R/X/RC classification.

Moreover, it is not clear that content-providers will be able to ask the OFLC to classify material for them, even if they can afford it. It appears that only the ABA will be able to request that Internet Content be classified by the OFLC -- and the ABA will only act in response to complaints, not concerns by content publishers. So the result of this legislation will be widespread uncertainty, even among those not publishing R-rated content. Between the actual effects of access control systems and the general uncertainty created by application of censorship to such a range of of materials, including ones distributed without controls in print, this legislation will, if actually implemented, push content providers out of Australia. Users and businesses will opt to host their content overseas, where they simply don't have to worry about such problems. Moreover, the legislation provides no controls at all on overseas R-rated content, so the imposition of access control systems on Australian R-rated sites will have no effect on the unrestricted availability of R-rated material to minors. The only result will be the creation of barriers in the online content industry that affect only Australians, in a bizarre kind of reverse tariff.


  1. The Bill's regulation of R-rated Internet content will achieve nothing towards preventing children accessing it, since it only affects the 1 or 2% of content hosted in Australia.
  2. The Bill's regulation of R-rated content will cripple the Australian content-hosting industry and adversely affect Australian content providers. It will disproportionately hurt smaller content providers.

10. Impact On The ABA And OFLC

Non-violent erotica, and material that would be refused classification under Australian law is available on millions of web pages, and these pages can change their location, host or address very often. These changes may take place at any time of the day or night.

Even if complaints were made about only one percent of, say, three million sites, it would make the ABA and the OFLC very busy. Unless the OFLC is to be a solution to the unemployment problem, or converted to a work for the dole scheme, it is difficult to see how they could intelligently classify 30,000 sites in a year.

EFA notes that in the 1997/98 year the OFLC classified a total of 6304 items: films (345), videotapes (3087), computer games (591) and publications (2281)

In 1997/98, the OFLC had 46 staff and the 'Net Cost of Services - Expenses - Employees' in the financial accounts is $2,262,321. It would seem that the OFLC will need to employ many more staff, and the ABA will need additional funding of more than the proposed $1.5 million (as stated in the explanatory memorandum) to cover OFLC classification costs.

Even supposing this target could be achieved, the blocking of a mere 1% of the material objected to by the government would have no real affect on the availability of material that would be rated X or RC.

Moreover even if this 1% were to be blocked, it is likely that a substantial portion of it would change location within days, requiring it to be blocked again.

Additionally, a considerable amount of RC- and X-rated content is distributed away from the World Wide Web, and instead is found in file transfer archives and IRC chat channels. It is extremely difficult to block selected material available from such sources.

11. Effectiveness Of The Proposals

Blocking and filtering won't work. The CSIRO report commissioned by the National Office for the Information economy provides a detailed analysis, and concludes that "Content blocking implemented purely by technological means will be ineffective". http://www.cmis.csiro.au/projects+sectors/blocking.pdf

Technology to evade censorship is readily available, such as the Anti-Censorship Proxy (available free) described by Bennett Haselton and Brian Ristuccia in their paper Technology for Circumventing Internet Censorship http://www.cfp99.org/program/papers/haselton.htm.

Other technology to evade censorship includes:

"Whenever you visit a Website unprotected, you not only expose yourself to risk of invasion, you provide information about yourself, that can include your viewing habits, your search terms, your geographical location, your address, phone number, employment details, your credit card numbers, and more. Many of these Websites keep logs of this information compiling dossiers on their users as well. Even if you trust the intent and integrity of the people behind the site you're visiting, in most cases, your information is still at risk to security invasion."

Zero Knowledge Freedom: http://www.zeroknowledge.com/
"FreedomTM is easy-to-use software designed to give you total privacy while on the Internet. This driver-level software runs in conjunction with all your current Internet software, ensuring your privacy in a totally transparent, unobtrusive way. Freedom uses high-grade public key cryptography to encrypt the contents of any Internet transmission, including e-mail, chat room, web browsing and newsgroups. It also protects the source and destination of all Internet traffic. "

"The Lucent Personalized Web Assistant (LPWA) is a tool that lets you enjoy personalized Web services while providing privacy, convenience and account security. It also gives you an effective way to combat junk email. LPWA is useful even while browsing sites that do not provide personalized services, since it blocks websites' ability to track your movements. A brief overview introduces you to the main features of LPWA. "

"The approach is based on the idea of "blending into a crowd", i.e., hiding one's actions within the actions of many others. To execute web transactions in this model, a user first joins a crowd of other users. The user's initial request to a web server is first passed to a random member of the crowd. That member can either submit the request directly to the end server or forward it to another randomly chosen member, and in the latter case the next member independently chooses to forward or submit the request. When the request is eventually submitted, it is submitted by a random member, thus preventing the end server from identifying its true initiator. Even crowd members cannot identify the initiator of the request, since the initiator is indistinguishable from a member that simply passed on a request from another. "

"The Onion Routing research project is attempting to build an Internet based system that is strongly resistant to traffic analysis, eavesdropping, and other attacks by both outsiders outside the network) and insiders (within the network). As such, it gives the sender, and sometimes the recipient, anonymity from the transport medium (i.e, the network simply CANNOT know who is talking to whom - it knows communication is taking place, but not the parties communicating nor the contents of that communication). "

"Surf Anonymously"

"Welcome to the MagusNet Public Proxy Server"

The Bill will not make the Net safe for children, since it can't hope to affect access to more than a tiny fraction of the adult material available online.

12. Industry And Commerce Impact

As detailed elsewhere in this submission the Bill will cause a 'content drain' overseas, increase bandwidth costs to Internet users in Australia, increase the costs of the ABA and the OFLC and place an onerous burden on Australian ISPs.

Even in Malaysia, which is not known for its liberalism, government gave up attempts to censor the Internet because it was ineffective and above all damaging to their information economy.

C/net (http://hongkong1.cnet.com/briefs/news/asia/19990322bl.html) reported, 22/3/1999, that:

The Australian carried a similar report (http://technology.news.com.au/techno/4346944.htm) on 19 March:

'JUST days after the Prime Minister Mahathir Mohamad complained that people were using the Internet to spread lies, the Malaysian Government has announced that users of the World Wide Web will be free from any form of censorship.

Othman Yeop Abdullah, executive chairman of the Multimedia Development Corporation, which oversees Malaysia's burgeoning Multimedia Super Corridor, said that at the direction of Dr Mahathir, all existing curbs would be removed, including a requirement introduced in December for cybercafes to register all users. The move reflects Malaysian concern over the impact on potential investors in the MSC of signs of creeping censorship, such as the cybercafe plan and a statement by the Deputy Home Minister, Mohamad Tajol Rosli Ghazali, that police would "check every bit of information and leaflet" posted on the Internet.

His remark followed the arrest and prosecution of four people for spreading rumours on the Internet.

Mr Othman announced the government decision at a press conference called to counter a disparaging cover story on the MSC in BusinessWeek, entitled Mahathir's High-Tech Folly.

The magazine said Malaysia's "grand plan" was not working. It said Dr Mahathir's behaviour had set back the MSC by several years and it had failed to get significant investments from high-technology companies.

Mr Othman said the article was grossly unfair, malicious and an example of "sensationalism in its worst form".

He said it would seem that the article "was written with a hidden agenda". Mr Othman said the MSC had already managed to attract 29 world-class companies, more than half the 50 it was targeting by 2003. He said 139 companies were in operation with an investment totalling $M1.139 billion ($470 million). He said the Multimedia Development Corporation did not plan to take legal action against BusinessWeek but it would "have to do a great deal of damage control". The bar on censorship and the lifting of the regulation affecting cybercafes in particular were clearly moves in this direction.

"Many people in the industry see the requirement to register cybercafe users as a form of Internet censorship," Mr Othman said.

He warned that people would still be subjected to existing laws if they downloaded and disseminated unlawful material.

Dr Mahathir had promised freedom from censorship on the Internet when launching the MSC but the increasing spread of anti-government Web sites among supporters of the ousted deputy prime minister Anwar Ibrahim caused misgivings among many ministers.

When he announced the new regulations for cybercafes the Housing and Local Government Minister, Ting Chew Peh, said there was a need "to exercise tighter control and supervision" over users.

Last week, rumours circulated on the Internet that the chief ministers of Kedah and Perlis were being replaced because of poor performance. At the weekend, Dr Mahathir denied that any leadership changes were planned for the two States. "I thought the people would use the Internet to express their ideas but now it seems that it is being used to spread lies," he said.

But Dr Mahathir has made the MSC his personal project - part of his vision to build Malaysia into a technologically advanced nation with fully developed status by 2020. If it can only succeed on a no-censorship basis, curbs must go.

13. Implementation Costs

For content hosted in Australia the Bill bans content which would be rated 'R', unless there is an approved method of restricting it to persons over 18. However identical material, if hosted overseas, would not be banned.

This is likely to result both in a 'content drain' overseas and the export of bandwidth. Australian content providers are likely to arrange for their material to be hosted overseas. Moreover material which could previously have been obtained from Australian sites will now need to be imported from overseas, resulting in an increase of inbound traffic to Australia.

At the moment Australian carriers buy content from US carriers, but must give Australian content to US carriers for nothing. A justification for this is that the traffic is approximately 70:30 in the US carriers favour. This ratio has been improving lately and there have been attempts to get the US carriers to accept a fairer interconnection regime, but an increase in traffic inbound to Australia will weaken the arguments of Australian carriers.

Interconnection payments are a fundamental part of the information economy, and this Bill is likely to inhibit the development of the information economy in Australia.

There is also the cost of administering the system which will be borne not only by the industry directly, but also by the ABA and the OFLC, which are a charge on the public purse.

24-hour takedown provision is onerous and costly for ISPs ISPs are to comply with take down orders as soon as possible, and in any event within 24 hours. This is an onerous requirement, particularly since small ISPs may be unattended on weekends.

Moreover the penalties for failure to comply within this period of time ( 250 penalty units in the case of a body corporate) could destroy small ISPs.

14. The Wording Of The Bill

The definition of an Internet content host is unduly broad. An Internet content host is anyone who 'hosts' Internet content in Australia.

Anyone who has an email account, and keeps material on their computer (any material, not just email) is an Internet content host, since the material on their computer is available for 'access' via an Internet carriage service (in that it can be emailed to someone).

This comes about because access is defined to include 'access via push technology'. Since email is a form of push technology anyone with an email account, and material on their computer can be said to have material that is available for 'access'.

Take down notices too vague

The ABA may issue a take down notice, but there is nothing requiring the ABA to properly identify the content to be taken down. All the ABA has to do is 'set out' or 'describe' the content. The ABA does not have to inform the host where the content is located, which of its users placed it there, or how to find the content.

Anti avoidance provisions too broad.

The anti avoidance provisions permit the ABA to stop an Internet content host from hosting content which is 'substantially similar' to content subject to a take down order. While the process leading up to a take down notice implies that the notice will refer to specific content there is nothing in the anti avoidance provisions to restrict the ABC from describing similar content generically. It seems that by securing a single take down notice, other content can be restricted through the use of anti-avoidance provisions and generic descriptions of the 'similar' content.

'Prohibited content' definition too broad.

In a media release dated 4/02/99 the Minister said 'material accessed through on-line services should not be subject to a more onerous regulatory framework that 'off-line' material such as books, videos, films and computer games.'

This Bill would do exactly that. The definition of prohibited content is too broad. It would not allow adults to access X rated material in Australia via the Web, when they are able to access it via other means (such as mail order). This treats one form of information distribution (the Web) differently from another analogous form (that is, mail order).

Unit of censorship

There is no "unit of censorship", so that it is not known whether a takedown order or an access-prevention order will require a site (not necessarily a sub-domain) to be taken down or blocked, or merely the individual web pages. Equally, it is unknown as to whether a whole page would be blocked, or just a picture or a paragraph from a particular web page. The difference is very important in relation to the ISPs technical ability to find or block the material, and to the content provider concerned.

Receive equals send.

The definition of "access" contains the fallacy that a user should be deemed to have requested every item of material that is sent through push technology. An obvious problem arises with unrated material sent through commercial news services and other subscription services not rated under Australian law. An ISP that provides subscription material obtained from third parties in good faith should not be deemed to have sought material that infringes against the law, especially in relation to material that would be rated "R".

Computer games

Computer games available online are rarely identical to computer games rated by the Classification Board. There may be screenshots or demonstration versions arriving through commercial software distribution services that are not named in such a way that it is possible to determine that the material is part of a game that has been or should be classified under rules relating to commercially-sold software. This has the outcome that an ISP may be wholly unaware that the material online is banned, or subject to a takedown or blocking order.

Two year rule

Clause 12(1) states that Internet Content cannot be reclassified within two years - given the expanded definition of "Internet Content" and the absence of the definition of whether the Bill bans pages or sites, this could be difficult for content providers to remedy. If a content host changes the content to comply with a complaint, the content should either be capable of re-classification or alternatively the definition of "similar content" should permit a bona fide attempt to change the classification of the content under complaint.

ISPs to become editors.

In his second reading speech the Minister said:'... (the Bill) does not attempt to place primary onus on ISPs and ICHs who are not responsible for content, gives them certainty in relation to action to be taken when made aware of prohibited content....'

However clause 34 is impossible for ISPs to comply with, since they cannot guarantee that material passing through their systems is not "similar" to material that is already subject to a takedown notice. The ABA could ruin an ISP merely by issuing a clause 34 notice in generic terms. Equally, the ABA will certainly be swamped with complaints (it is expected that both civil libertarians and people in favour of censorship will automate complaints by extracting thousands of URLs from various sources) and it will be likely that the cost of rating millions of sites by the Classification Board will prove prohibitive. The ABA will have to bow to expediency and issue generic takedown and access prevention orders, and ISPs will be returned to the situation where they will be expected to exercise editorial judgements over material posted or hosted by their users.

Unrealistic time limits

Clause 35 and clause 45 set unrealistic time limits for the ISP to become aware of an ABA order and to act upon it. With respect, the ABA could not undertake to act on complaints within 24 hours, and neither can ISPs. Not all ISPs have staff available to answer such complaints on weekends and public holidays, and since the ABA may choose to issue its notices by posting them on the ABA web site or by email to an account not monitored daily by the ISP it is possible that ISPs could take a reasonable, but longer, time to respond.

What are 'reasonable steps?'

Clause 37 lacks the proper description of the "reasonable steps" that an ISP must take to prevent end-users from accessing the specified content. Some ISPs do not have proxy filters, or the financial ability to invest in expensive web filter software and the latest routers. A "standard access-prevention order" is unlimited in scope within the Bill, and could well include matters that the ABA regards as reasonable but the ISP cannot deliver. While it is understood that the intent of the clause is to give the ABA the power to make requirements in the future in accordance with technical developments and new technologies, at present the only means of blocking offshore sites or other material hosted overseas is web proxy filtering, which is unanimously acknowledged as being an inefficient technology.

Compulsory Unionism

Clause 55 is anti-competitive, in requiring all ISPs to adhere to the Code of Practice of one organisation. EFA submits that clauses 52 and 56 be altered to allow "sections" of the Internet industry to include regional sectors. Like the terms of model constitutions required of registered charities and other associations, once the standard requirements are met the organisation would be free to develop policies and to pursue priorities appropriate to the industry section involved.

Similarly, different content hosts should be at liberty to develop differing Codes of Practice depending on the "niche" market they serve. EFA submits that it would be appropriate for content hosts in markets such as "Adult content", children's entertainment, education services, gambling sites or stockbroking (to name but a few) to develop different Codes of Practice to reflect the governance of different State and Federal legislation, and to permit professional standards to develop in the various "niche" markets. Of course, these could all be required to meet reasonable common standards, but multiple Codes would provide greater market responsibility.

Too much power for ABA

EFA is concerned that the ABA appears to have too much power to determine or deny an ISP or content host Code and to otherwise administer the scheme. The role of the ABA could be reduced to certifying that the Act has been complied with, with a right of appeal to the AAT.

Harsh and unreal

Clauses 78 and 79 are harsh, given that an ISP (for reasons stated above) may not be capable of compliance. Threats of major fines, daily penalties and Federal Court injunctions do not address the reality that an ISP may be unaware that it is in breach of an online provider rule, or not be in a financial position to comply with it, or may be required to filter when it is not in fact possible to do so.

New use of a federal power

Part 9 is a new use of the "Posts and Telegraph Power", and could have wide-ranging ramifications on the liability for content under State and Territory law. For example, it is a defence to a charge under the WA Censorship Act for an ISP to have been following a gazetted Industry Code - the WA Act does not follow the same procedure as the Bill for registering a Code, so the defence evaporates. On the other hand, the provision may well be broad enough to affect the law of defamation, negligence and contract. This is a new use of a Federal Constitutional power, and deserves considered study and a public inquiry.

15. Freedom To Speak And Read

"One of the great changes that have come over Australia in the past six months is that people do feel able to speak a little more freely and a little more openly about what they feel."
- Prime Minister John Howard

It is commendable that the Prime Minister apparently favours freedom of expression, or did at the time of making that statement. Unfortunately, however, it appears the government is not listening. There is a disturbing trend towards an increasingly repressive censorship regime in all media in Australia. While such measures invariably claim "protecting the children" as an objective, they deny the rights of adult Australians to read, see and hear what they want and they deny parents' responsibility for safeguarding their children.

The proposed Internet censorship legislation is a primary example. It will not achieve the claimed aim of protecting children, but it will infringe adults' rights to freedom of speech and the legislated principle in Australian law that adults should be free to read, see and hear what they want.

EFA believes that the proposed legislation contravenes Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the "International Covenant on Civil and Political Rights(ICCPR).

Article 19 of the ICCPR states:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    (a) For respect of the rights or reputations of others;
    (b) For the protection of national security or of public order, or of public health or morals.

EFA draws to the Committee's attention that the proposed legislation will infringe the rights of Australian citizens under clause 19(2) and is not "necessary" as set out in clause 19(3).

While attempts to censor the Internet in the manner described in the Bill will restrict Australian's freedom of speech and inconvenience them in accessing content on the Internet, they will be wholly unsuccessful in terms of protection of "national security or of public order, or of public health or morals".

In fact, such attempts may have the reverse affect in preventing Australian citizens from accessing information necessary for protection of public health, given the type of information "guessing engines" are notorious for blocking (eg. information about safe sex and AIDS).

The Internet it a world-wide communication system which the Australian Government, like the Malaysian Government, must accept it cannot control.

The restrictions on freedom to seek, receive and impart information and ideas of all kinds will not be mitigated by the tiny quantity of information on a global network that the government's proposed censorship regime might successfully block.

EFA calls on the Committee, and the Government, to acknowledge and accept that the majority of Australian adults do not want more censorship. Arguably, they do not even want the level currently enforced.

Despite the claims of moral crusaders that there is "wide community concern" to support the heavy-handed censorship they favour, surveys of Australian adults since at least 1992 have consistently shown vast support for the availability of X-rated (67%-83%) and R-rated material (72%-82%) to adults. These studies have been carried out by respected organisations including the OFLC and the ABA. (For examples, see: http://www.libertus.net/censor/surveys.html)

The results of these surveys are supported by the community outrage evident during the Government's most recent attempts to ban X-rated videos and R-rated material on pay-TV. Several years passed before the results of the ABA survey in the latter regard were accepted as reflective of community views.

Insofar as the Internet is concerned, adults have the option of choosing to use blocking software if they fear clicking on a web page link which leads to material they find offensive, or which might disturb children under their supervision. It is therefore unquestionably inappropriate for the Government to mandate that ISPs use blocking technologies to restrict adults' freedom to choose to read what they want.

Although it is claimed that the Bill will make material illegal off-line illegal online, this is based on the premise that the Internet is like Pay-TV. It is not. The Internet is clearly not a broadcasting medium, as Senator Alston acknowledged in July 1996 (see Section 1 - Introduction).

In fact, the proposed legislation goes far beyond making what is illegal off-line, also illegal on-line. For example, it is not illegal for most adult Australians to request, receive and possess X-rated videos by mail order, so there is no justification for attempting to prevent adults from choosing to access X-rated material on-line. Similarly, it is not required that adults provide identification in order to view R-rated films at the cinema. However, on-line, adults will be required to provide identification - enhancing the ability of ISPs and web-site operators to watch and build profiles about users' interests and behaviour and potentially use such information for marketing and other purposes. It is disturbing that the Government intends to legislate that adults be required to identify themselves before being permitted to read adult content, particularly when there is no legislation protecting members of the public from privacy infringement by the private sector.

As Avedon Carol, of Feminists against Censorship UK, writes, in A Lie About the Dangers of Pornography:

16. Recommendations

EFA submits that legislative attempts to regulate content on the Internet should be abandoned. Publication of globally agreed illegal material can already be prosecuted under existing law, and regulations concerning contentious material are inappropriate in a world where cultural differences cannot be easily reconciled.

Yours faithfully,

Darce Cassidy
Executive Director
Electronic Frontiers Australia Inc