In the next decade legislation, not technology, will be the defining factor. There is a huge, burgeoning world market forming online, one of the few marketplaces in which we are not subject to the tyranny of distance. Bad or premature legislation will destroy us as players altogether; ground and opportunities lost now will never be regained. We urge restraint - keep new legislation to a minimum, participate in local and international debate, and develop applicable law alongside the technological and social changes that are happening.
In a market currently containing every variety of provider, from the worst of cowboys to the most staid of institutions, codes of practice will become one of the ways in which providers of access and services will distinguish themselves, and a tool that consumers can use in their purchasing decisions.
Codes of practice will evolve; they should be fostered but not forced.
We are concerned at the lack of attention being paid by the ABA to the issues of privacy and intellectual property. In an information economy, these two matters are paramount. We urgently request that greater attention be paid to them.
We would like our submission to the Department of Community and the Arts to be considered as part of this submission.
We thank the ABA for this opportunity to contribute.
This paper is also available on the World Wide Web at
http://www.biplane.com.au/~kauer/regulation/aba1.htm
If you are reading the World Wide Web version of this submission, please note that none of the hyperlinks you see were in the Issues Paper; they have been added here to provide further information or related papers on points of interest.
Much material (email and Usenet news are the canonical examples) is made available via systems which are entirely automated; it would be neither practical nor possible for the administrators of these systems to know the nature or content of the material so provided.
We prefer the term "originator" for any person who with full knowledge of its nature and content, makes material available to others. This may be the creator or the material, or a service provider of some description.
We agree that the originator of material should bear the primary responsibility for the material.
However, in any context where the material being originated must be deliberately sought out (that is, by voluntarily selecting it in some way and then electing to view or otherwise use the material) the user or consumer must also bear some responsibility in the event that the material causes offence or other harm.
If clear guidelines were to be provided, we would be cautiously in agreement with the idea that, having become aware of objectionable material, an access provider may be required to take certain steps in regard to that material.
We do not accept, and would caution against, any requirement that access providers should seek to identify objectionable material with a view to controlling it. Quite apart from practical difficulties in vetting the vast amount of material typically made available by access providers, such requirements would almost certainly be at odds with providers' duty to users' privacy, and would also require that the provider make unskilled value judgements about a wide range of materials - judgements for which the provider might then be legally liable.
While the supply of authoring services could be seen as "publishing" in some circumstances, the provision of "secure systems for payments" is typically a fully automated mechanism. It is inappropriate to consider any automated mechanism "publishing", because the owner or administrator of such systems does not (and typically cannot) be aware of the content and nature of the transactions made.
We refer to our definition of "originator" above, and repeat that no responsibility for material (or in this case transactions) should be placed on providers in cases where they are not specifically aware of the nature and content of the material involved.
It should be noted that users should bear a high degree of responsibility for what they choose to view or otherwise consume, provided that mechanisms are provided for them to make informed choices.
In our opinion, the controlling factor of the next decade will not be technological, but legislative. The wrong choices made now may have disastrous effects in both economic and social terms.
We do not believe that the technological changes to come can be predicted with a useful degree of accuracy. We recommend strongly that legislative steps taken now be as minimally intrusive as is possible, consistent with community, industry and administrative needs.
We consider it debatable whether there is, at grass roots level, any deep concern at all. Certainly none of the currently active or recently completed investigations have carried out suitable surveys or enquiries which would reveal the extent of community concern. We urge that the ABA or any other suitable body arrange some form of survey or other enquiry to gauge the actual extent of this "community concern".
While we wholeheartedly support the rights of all people and organisations to state their views in this debate, we respectfully suggest that the Australian community encompasses many viewpoints, and that the most strident are not necessarily the most widespread. While it may be politically safe to take righteous action against the "filthy pornographers", the potential for collateral damage to this country's citizenry and economy should be most carefully considered.
The issues mentioned under "community concerns" in the Issues Paper are certainly issues that need to be given thought. However, with the exception of privacy and intellectual property rights, all the issues mentioned are far better dealt with via education and the provision of the means by which people can protect themselves.
In a multicultural and eclectic society such as ours, there can be no one standard by which to measure all material. This is even more so in the online environment, which is a transnational, transborder, global community.
In our opinion, the guiding principles for legislation in this area should include:
For example, it is tempting to make access providers responsible for the material they make available. This is because they are reasonable static, easily identified, and most inappropriate material will probably flow through an access provider on its way to its final destination.
However, in many cases (Usenet news, private email, connections to remote services, inter-user transactions and so on) the access provider is incapable, for all practical purposes, of realistically taking responsibility for the nature or content of the material.
Legislating to place the burden of responsibility on the access
provider will force the provider to either continue in blind hope
that nothing actionable is discovered on his/her system (thus
making the provider a target for malicious "stings"),
or to dramatically reduce the services offered, to the point where
all material can be checked before distribution. In the first
case, no effect would be had on the transfer and accessibility
of objectionable material; in the second case, the reduction would
in most cases represent a trivialisation of the services offered.
Neither outcome is particularly desirable.
Comment on whether a code of practice is appropriate for the
on-line services industry, or sections of it, is invited.
Although in our
initial response to the Senate Select Committee
we favoured a code of practice, this view has changed.
While codes of practice are a useful mechanism for informing and protecting consumers and for achieving uniformity of approach within a group of similar industry entities, they are not a substitute for appropriate legislation, and should not, except in the most general way, be linked to legislation. Linking codes of practice to legislation will only result in jurisdictional confusion and form an impediment to the flexible evolution of appropriate codes.
A code of practice, in our view, should be a supplementary matter, which suppliers within the online services industry could choose to use and identify with or not. This would allow a form of "value adding" over and above the legal requirements imposed on suppliers. It would also allow suppliers to form groups, each with a code appropriate to that group.
There is a large difference between the options available to a large supplier and the options available to a small supplier. A regulatory requirement with which a larger company might easily comply could be beyond the capabilities of a smaller supplier.
There is also a risk that in evolving one code of practice for the entire industry, the larger companies involved might be able through larger economic and political influence to unduly affect the nature of any code of practice in order to advantage themselves. This might well affect the abilities of smaller companies to compete in the industry.
If codes of practice are to be required, we recommend that they be allowed to evolve freely according to only the most general regulatory guidelines and that suppliers be free to group themselves under codes of practice most suited to their areas of supply and other relevant factors.
We do not believe that codes of practice should be required. In our opinion that they will arise naturally, as competing suppliers seek to make themselves and their services more attractive to consumers and as they form strategic alliances amongst themselves.
We recommend that this process be allowed to run its natural course, though we would welcome any opportunities that could be offered by Government or the industry for structured debate on the issues involved.
We are not convinced that a ratings system would be viable or appropriate; because of the heavily international context in which the online community operates, we suspect that any rating scheme would be essentially irrelevant.
Certainly no local ratings scheme would be enforceable without somehow pre-processing all overseas material, a task which is probably impossible and (in our view) certainly unacceptably intrusive.
Any attempt to apply mandatory ratings or to restrict the access of Australian consumers to rated content only (particularly if this restricted access to material sources overseas) would be devastatingly bad for our international reputation and our local well-being.
Beyond that truism, we have no comment on this matter.
It could be argued that the interests of the online public would be served by having suitable Government representatives on any such body or at such forums. We disagree; without some mechanism for direct, broadly based public input to the processes of such bodies or forums, they could not be in any real sense representative of the online community.
We also disagree strongly with the statement in the Issues Paper that the only solutions are "an industry body and codes of practice" or "direct regulatory intervention", with the strong implication that the choice is up to the industry.
In strong contrast to the remainder of a largely well-presented Issues Paper, this section uses the obscurist language of the politically correct management consultant - "stakeholders", "key goals", "consultative framework". Such a highly structured approach is utterly inappropriate in terms of starting to come to grips with an industry and a community which is riding the wave of extremely new technology. The online industry and the online community, both in Australia and internationally, is using and evolving activities, products, services, interactions and ways of communication that are completely new.
In our opinion, suitable representative bodies will evolve as the Australian online community evolves. Government will be involved as a matter of course, and properly so because Government is part of the online community. However, we feel it is too early to be forcing particular arrangements at this stage.
We refer to our earlier comments regarding codes of practice, and note that suitable mechanisms for dealing with breaches of codes of practice will evolve along with the codes.
We agree that issues of appeal and accountability would be paramount in the operation of any such body; we also note that the composition of the body (ie., its members) would be a most important factor in these issues.
The TIO deals almost exclusively with issues of access to telecommunications infrastructure and breaches of implied or actual contractual arrangements. These arrangements are usually between carriers and their clients and are concerned chiefly with the carriage of information, not with the nature of the information carried.
The ABA has hitherto been chiefly concerned with broadband issues (hence its name) and has to a very large extent not had to contend with transborder, transjurisdictional content matters, nor for the most part with narrow-band bidirectional communication.
The emerging international online community of which the Australian public and Australian industry is a major part fits none of these models particularly well - the first two not at all. However well they may carry out their functions with respect to the fields in which they operate, the issues and challenges that the online community poses go well beyond anything these models can offer.
Enforcement has at least two aspects which are relevant to this discussion:
If codes of practice are to have any value at all, entities electing to subscribe to them will be agreeing also to a range of sanctions in the event that the code is breached. In a very real sense, the quality of the code can be measured by the effectiveness and appropriateness of the sanctions it allows for. Thus the industry will tend to self-select appropriate and effective sanctions.
Subscribing to a code of practice is (or may be) equivalent to entering a contractual arrangement with the body sponsoring the code. This will provide the legal backing required to impose the sanctions if necessary.
The downsides identified by the Issues Paper are very real. We would also point out that providers who vet material for presentation to (for example) minors are perforce drastically reducing the amount of information they present. This diminution is itself of concern.
When cars were first invented, some countries had laws requiring each vehicle to have a person walking ahead holding a red warning pennant. This seems laughable now, because this requirement clearly defeats the very purpose of such a vehicle. Unfortunately, most current thinking, particularly on issues of children, education and the online community, is at about the same level as the red pennant idea.
The perceived threat to young people from objectionable material is far, far greater than the actual threat - we refer to the OFLC's informal search and note that the experience of the OFLC is very much the norm. Education of both parents and children is needed; parents so that they know what is out there and how to avoid it, and children so that they know who to turn to if they encounter objectionable material or individuals online.
In our opinion, the realities of the online community should be accepted in the same ways that the realities of the road system or the electrical grid are accepted. They are useful and dangerous at the same time, so we put up barriers where we must, signs where appropriate and we educate our children from a very early age about how to handle them safely and effectively.
Quite apart from the enormous technical burden, the vast administrative effort and the very dubious censorship issues that are raised by the proposal, any individual could simply obtain any desired material directly via an international telephone call.
We expect to see the emergence of more detailed contractual arrangements between service providers and their clients. This process will be driven both by the increasing technical sophistication of consumers and by increased understanding on the part of providers about the nature of what it is they are selling.
Government has a role to play here in terms of education and support for consumers in a new and rapidly changing marketplace.
Privacy and intellectual property are "consumer" issues. The growth of the online market poses several challenges in these issues - for example, who owns the text of email messages stored on a provider's machine? Who owns the call details and billing records of an access provider? If the provider owns them, can he or she sell them, and if so what impact does this have on the privacy rights of the consumer?
These matters aside, we do not feel that the nature of the online community brings anything new in terms of basic consumer issues.
This famous cartoon caption makes the point that in the virtual world of the online community, physical differences between individuals are irrelevant and people are judged on what they say. The online community is the ultimate level playing field for intellectual and artistic expression.
If Government wishes to encourage Australian expression, it needs only help keep the costs of participation down. This means encouraging the provision of cheap national network infrastructure, encouraging the provision of more international network infrastructure, encouraging competition and diversity in service provision and avoid unnecessary regulatory barriers to free exchange of digital information.
