AUSTRALIA — The South Australian parliament will next month debate a range of
amendments to their state-based Classification Bill to include online
content, in line with the Federal Government’s Online Censorship
Amendment. The Amendment focuses on individuals responsible for
uploading “offensive” content and will include online discussion
groups and e-mail.
The SA Government is believed to be the first of the State/Territory
Governments to act on the Commonwealth Government’s request
that they enact complementary enforcement legislation applicable to
Internet users and content providers.
The Australian Classification (Publications, Films and Computer
Games) (Miscellaneous) Amendment Bill 2000, is expected to be
debated by the South Australian Parliament during its sittings
commencing 13 March 2001.
“Among other things, the Bill criminalises making available content
unsuitable for children online,” Electronic Frontiers Australia (EFA)
says, “even if the content is only made available to adults.”
In other words, if a person places “matter unsuitable for minors” on a
Web page, even on a password protected section of a site and the
password is given only to adults, that person could be prosecuted
under criminal law.
As with the Federal Governments Broadcasting Services Amendment
(Online Services) Bill 1999, “matter unsuitable for minors” is content
that is, or would be, classified R by a majority decision of the
members of the Office of Film and Literature Classification (OFLC).
The maximum penalty planned is $10,000 and the Bill covers content
placed on the web (including archived mailing lists), messages to
newsgroups, and so on.
“The Bill complements the Commonwealth’s laws passed last year,
allowing concerned members of the public to complain about
offensive Internet sites,” South Australian Attorney-General Trevor
Griffen says. “Access to these sites can be removed through the
Australian Broadcasting Authority (ABA). The proposed State laws
will allow prosecution of the persons who upload this content. They
do not catch the service provider, who is already covered by the
Commonwealth law.”
While the drafters of the SA Bill have made minor changes to the
draft model national legislation issued in August 1999 for public
comment by the South Australian Attorney-General and some others,
EFA believe the SA Bill is a “profoundly flawed document.”
EFA disagree with Griffen, saying “the provision is also inconsistent
with Commonwealth law. The ABA has no power to issue a take down
notice to Internet Content Hosts (ICH) relative to content it
considers “would be” classified R. However, the SA Bill enables
prosecution of an Internet user to commence prior to the material
being classified during which time it is legal for the ICH to continue to
make the material available to both minors and adults. (ICH activities
are regulated by Commonwealth law, not SA law.)”
Rather than address the inten
tion that “what is illegal or controlled
offline should also be illegal or controlled online,” the SA Bill
criminalises material online that is not illegal offline, the group add.
The South Australian Internet Association (SAIA) agree. President
Simon Hackett says “Internet censorship laws should be the
consistent with laws in the ‘offline’ realm. The laws differ in several
ways, including larger fines for ‘online’ offences and using a different
approach to assess whether content is illegal prior to commencing a
prosecution.”
Hackett believes the Bill “is ‘well meaning’ but “overshoots in its
effort to protect people from online indecency.” He says the
legislation, if passed, would affect Internet content creators in South
Australia and risked driving skilled IT workers out of the State to
avoid punitive laws.
“Many of the flaws in the document appear to arise from the attempt
to force Internet content into a censorship regime developed for an
entirely different medium, that is commercial sale and exhibition of
movies and videotapes,” add the EFA.
EFA argue the classification of online content as a film creates a
number of serious anomalies and unintended consequences.
If content providers can be successfully prosecuted for making
available “films” that consist of text and static images (e.g. Web
pages), then under existing Classification law librarians and teachers
(and others) who manage or supervise premises containing
computers connected to the Internet could be prosecuted for events
beyond their ability to control, they say. These include
“screening”/”exhibiting” objectionable matter and matter unsuitable
for minors.
The SA Bill does not give content providers an opportunity to take
material down when they have inadvertently mis-guessed the
classification.
The Bill will also cover online newsgroups and e-mails, which are
archived on Web sites, as “Internet content” has the same meaning
as in the Commonwealth Broadcasting Services Act (BSA).
“Internet content therefore does not include ‘ordinary electronic
e-mail’ which is not defined other than that it ‘does not include a
posting to a newsgroup.’ The SA Bill thus criminalises the on-line
equivalents of some conversations in a pub, on a street corner, or at
the local shopping centre. Posting material unsuitable for minors to a
newsgroup, or any chat/discussion forum that is stored on the web,
such as email discussion lists that are archived, is a criminal offence
under the Bill whether or not the material is made available to
minors.”
EFA conclude 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.”
