Extracts from Australian Broadcasting Authority Investigation Into The Content Of Online Services --- "Privacy and censorship - extracts from the ABA report" [1996] PrivLawPRpr 30; (1996) 3(3) Privacy Law & Policy Reporter 44

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PRIVACY AND CENSORSHIP -- EXTRACTS FROM THE ABA REPORT

Extracts from Australian Broadcasting Authority Investigation Into The Content Of Online Services --
Report To The Minister For Communications And The Arts, 30 June 1996 -- see http://www.dca.gov.au/aba/olsrprt.htm

These extracts have been edited as indicated, and subheadings used are not the same as in the ABA Report.

Private communications online

The basis for distinguishing between private and public communications is intent. That is to say, is it the intention of the sender that the content should be widely accessed or that only one individual, or a small group of individuals, has access to the content?

The ABA recognises that some communications are intended for individuals or groups of individuals. Examples of these types of communications are telephone calls, teleconferencing and e-mail. With these, the sender addresses their communication to the recipient by either dialling a telephone number or specifying an e-mail address to which the message is conveyed, with the intent that the content of the message only be made available to those persons specified in the address. It is this highly `addressed' or `directed' feature that demonstrates the intention of the sender that the communication is essentially a private transmission, and not a form of mass media communication. The latter is usually transmitted in a way that does not permit the sender to know who is receiving the message.

The ABA believes that private one-to-one communication, such as e-mail, should not be subject to any content regulatory framework developed by the ABA. However, it should be noted that persons who create and send e-mail messages may still be liable under criminal offence provisions in certain circumstances.

The ABA recognises that it is possible for an e-mail message to be `addressed' to a location which can potentially be accessed by all users at any given time. In these circumstances, the message may not be regarded as intrinsically a private communication. It is also possible that large mailing lists can take on the characteristics of a narrowcast, if not a broadcast. However, while the borders may be blurred to some degree the ABA believes that communications which are intended to be essentially private in nature, such as e-mail, should be exempt from content regulation. ...

Proposed regulatory framework

The ABA recommends that industry codes of practice be developed by online service providers. ... The ABA is also of the view that it should have a monitoring role in relation to codes of practice for service providers...

The ABA recommends that a complaints handling regime should be developed specifically for online services. As part of its role in monitoring the effectiveness of codes of practice, the ABA should perform an independent appeals function for any unresolved complaints.

The ABA is aware of moves to introduce specific criminal offence provisions for online services. ... The ABA is of the view that any codes of practice referred to in the model offence provisions which would provide a defence to a service provider should be the same codes which are registered by the ABA. ...

While codes of practice would set out the steps which service providers might take if and when they are aware of the availability of objectionable material, it must be recognised that in some circumstances the measures which service providers can take in relation to this material are limited. ...

Age verification for Internet accounts

In respect of online services a large proportion of submitters expressed the view that parents should be primarily responsible for what their children access on online services and the Internet, by means of direct supervision or the use of filter products. ...

While there was support for the introduction of age restrictions on holding an online account, most submitters made it clear that this was not intended to prevent minors from accessing the services themselves. Rather, it ensures that parents, guardians and school bodies hold the accounts with service providers and then take responsibility for providing appropriate access to minors for whom they are responsible. Direct supervision by carers and the use of filter products are the main ways in which submitters suggested this responsibility should be exercised. ...

The ABA takes the view that service providers should limit accounts to subscribers who are 18 years of age or older. If open online access is limited to password accounts for adults, responsibility for children's use of online services will devolve to parents and other supervisors. ...

It should be noted that, were a code to require age verification procedures, this should not impose on service providers an obligation to guarantee that potential account holders were of the appropriate age, but to put in place reasonable steps to verify the age of the person...

`Blocking' access -- Refused access lists (RALs)

In the light of the current practical difficulties in implementing a RAL [`refused access list'] it is clear that the concept requires reconsideration. In particular, the apparent ineffectiveness of attempting to block access to certain Web sites or Usenet newsgroups and the ease with which such blocks might be circumvented, would appear not to justify the possible `collateral damage' to the operation of the network and the imposition of additional administrative and financial costs on Australian service providers.

As a result of these considerations the ABA recognises that the control of access to content is more effectively carried out at the user end. The exercise of such control can be facilitated by the service providers and the increasing availability of effective client software...

The proposal for a Refused Access List to facilitate the comprehensive blocking of Objectionable material should not proceed.

The ABA convenes an Online Technical Task Force comprising industry experts and appropriate government representatives to investigate further the methods that may be utilised by the industry for dealing with such material. ...

The establishment of an e-mail hotline along the lines of that recommended by the PJC-NCA report entitled `Organised Criminal Paedophile Activity' is supported in principle.