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Content Regulation and Restrictions on Free Speech (inc. censorship, gambling, spam…)

Content Regulation and Restrictions on Free Speech (inc. censorship, gambling, spam…). David Vaile Executive Director Cyberspace Law and Policy Centre http://www.cyberlawcentre.org/genl0230/. Summary. Classification Internet content regulation Gambling and online services Spam.

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Content Regulation and Restrictions on Free Speech (inc. censorship, gambling, spam…)

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  1. Content Regulation and Restrictions on Free Speech(inc. censorship, gambling, spam…) David Vaile Executive Director Cyberspace Law and Policy Centre http://www.cyberlawcentre.org/genl0230/

  2. Summary • Classification • Internet content regulation • Gambling and online services • Spam

  3. Those cartoons… • ABC Media Watch criticises both the cartoons and the decisions in Australia not to print them (after fact) • www.abc.net.au/mediawatch/transcripts/s1568919.htm • www.abc.net.au/mediawatch/transcripts/s1568881.htm • What do you think? • Is it about law, ethics, free speech, respect… ?

  4. GENERAL CENSORSHIP

  5. CENSORSHIP: CLASSIFICATION of CONTENT • OFLC - Guidelines for the Classification of Films and Computer Games • www.oflc.gov.au/resource.html?resource=62&filename=62.pdf • www.oflc.gov.au • EFA - censorship outline • www.efa.org.au/Issues/Censor/cens1.html

  6. INTERNET CONTENTRegulation

  7. Content Regulation - United States • ‘Constitutional protection’ of free speech • First Amendment to the US Constitution “ Congress shall make no law... prohibiting the free exercise... or abridging the freedom of speech”.

  8. Communications Decency Act1996 (CDA) • CDAhttp://www.epic.org/CDA/cda.html • ‘On a screen near you: Cyberporn’ xenia.media.mit.edu/~rhodes/Cyberporn/time.html • Carnegie Mellon University study‘Marketing Pornography on the Information Superhighway’ • American Civil Liberties Union (ACLU) www.aclu.org • Citizens Internet Empowerment Coalition (CIEC) www.ciec.org

  9. Action challenging the constitutionality of the CDA • American Civil Liberties Union v Reno 929 F Supp 824 (1996) Philadelphia District Court • Plaintiffs’ opposed two key prohibitions in the Act: • s 233 (a) illegal to knowingly send a minor material which is legally ‘obscene’ or ‘indecent’; and • s 233 (d) prohibits knowing sending or displaying of patently offensive messages, according to community standards in a manner that is available to a person under 18 years.

  10. ACLU’s request for injunction against enforcement granted • Attorney General (Janet Reno) appealed to the Supreme Court • 117 S Ct 2329 (1997)supct.law.cornell.edu/supct/html/96-511.ZO.html • Commentarywww.reed.edu/~gronkep/webofpolitics/fall2001/casons/ch2.html

  11. Child Online Protection Act1998 (COPA) • Second attempt • www.epic.org/free_speech/censorship/copa.html • www.reed.edu/~gronkep/webofpolitics/fall2001/casons/ch3.html

  12. ACLU v Reno II217 F 3d 162 (2000) • www.epic.org/free_speech/copa/3d_cir_opinion.html • became ACLU v Ashcroft when John Ashcroft became the new Attorney-General • www.ca3.uscourts.gov/recentop/week/991324.pdf • March 2003 Third Circuit Court of Appeals struck down COPA as unconstitutional

  13. CDA and COPA cases “ ... make it clear that to be constitutionally valid, US laws attempting to regulate Internet content must be very narrowly drafted and highly specific to maintain the delicate balance between the protection of children and freedom of speech and expression. ” Sutter, ‘Nothing new under the Sun: Old fears and the new media’ (2000) IJLIT

  14. Useful links -American content regulation • ‘Communications Decency Act’ –www.epic.org/cda • ‘The Legal Challenge to the Child Online Protection Act’ www.epic.org/free_speech/copa. • ‘Internet Regulation: Governmental v Individual;’ www.reed.edu/~gronkep/webofpolitics/fall2001/casons/ch1.html • ‘Content Regulation on the Internet’ iml.jou.ufl.edu/projects/fall01/song/page5.html

  15. Content Regulation in Australia • Online content regulated by both Cth and State legislation. • Commonwealth regime: framework for regulating Internet Service Providers (ISPs) and Internet Content Hosts (ICHs). • ISP: a person who supplies an Internet carriage service, consisting of service points within Australia, which enable end-users (members of public) to access the Internet. • Corporate intranets not generally regarded as ISPs because not accessible to the public. • ICH: person who hosts Internet content in Australia. • Eg, a person with own website or server in Australia, and hosts content provided by a range of contributors

  16. Cth legislative instruments • Classification (Publications, Films and Computer Games) Act 1995(Cth) • National Classification Code • Schedule 5 and Schdule 7 to the Broadcasting Services Act 1992

  17. Content regulation in Australia (2) the States • Content providers, creators and users are regulated by State laws: the intentional publication and transmission of proscribed material online. • While slightly out of date Volume 6, Number 1 (2000) of UNSW Law Journal is a good resource http://www.austlii.edu.au/au/journals/UNSWLJ/2000 • The article ‘The Government's Regulatory Framework for Internet Content’ is was written by Senator Richard Alston, former Minister for Communications, Information Technology and the Arts.

  18. State and Territory Content Regulation (3) • Legislation regulating publication and transmission of proscribed material online by content providers and content creators is different in each state and territory; some states are yet to regulate. • 1999 Standing Committee of Attorneys-General’s group of State and Territory Censorship Minsters released draft model legislation http://www.efa.org.au/Publish/actdraft1.html • Aim: standardising censorship across states • However, consistent model could not be agreed upon and movement has since been abandoned.

  19. States which have enacted censorship legislation include: • Victoria – Classification (Publications, Films & Computer Games) (Enforcement) Act 1995 (Vic) www.austlii.edu.au/au/legis/vic/consol_act/cfacga1995596/ • Northern Territory – Classification of Publications, Films and Computer Games Act 1996 (NT) www.austlii.edu.au/au/legis/nt/consol_act/copfacga508/index.html • Western Australia – Censorship Act 1996 (WA) www.austlii.edu.au/au/legis/wa/consol_act/ca1996137/index.html • South Australia – Classification (Publications, Films and Computer Games) (On-line Services) Amendment Act 2002 (SA) in force December 2002 based largely on 1999 draft www.parliament.sa.gov.au/dbsearch/legislation_search.asp

  20. States (cont) • NSW - Classification (Publications, Films & Computer Games) Act 1995 (NSW) did not include regulating content on online services • Amendments in Schedule 2 Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 based on 1999 draft www.austlii.edu.au/au/legis/nsw/consol_act/cfacgeaa2001676/sch2.html • Commencement date not proclaimed for Schedule 2. • NSW Parliamentary Standing Committee on Social Issues inquiry into Bill recommended Schedule 2 be repealedhttp://www.parliament.nsw.gov.au/prod/parlment/Committee.nsf/LookUp/Committee/StandingCommitteeonSocialIssues?Open • 9 December 2002, NSW Attorney General announced "the Act will neither be commenced nor repealed until [Commonwealth Government's review of Commonwealth censorship legislation] has been completed and the findings have been considered." • Queensland and Tasmania have yet to enact any relevant legislation. • More information about state and territory content regulation: Electronic Frontiers Australia’s Internet Censorship in Australiahttp://www.efa.org.au/Issues/Censor/cens1.html.

  21. ISP and ICH Exemptions • Important: ISPs and ICHs cannot be held responsible under State or Territory law or under common law or a rule of equity for carrying or hosting particular material on Internet if they were not aware of the nature of the content(Sch 5 cl 91 Broadcasting Services Act1992 (Cth)). • For example, if an ISP carries material which is defamatory or in contempt of court, but is not aware that the material is carried on its service, ISP cannot be sued or prosecuted for carrying this material. • Intention of law: content providers or users liable • But, if ISP becomes aware of illegal or infringing material on its service and takesno action to have it removed within reasonable time, protections not apply.

  22. Commonwealth Regulation • Broadcasting Services Amendment (Online Services) Act 1999 (Cth): 1 January 2000 • www.austlii.edu.au/au/legis/cth/num_act/bsasa1999n901999476/ • The Act inserted new Schedule 5 to Broadcasting Services Act 1992 (Cth) scaletext.law.gov.au/html/comact/8/4013/top.htm • Schedule 5 established the ‘Online Content Co-Regulatory Scheme’ for regulation of prohibited content on the Internet

  23. The Commonwealth Scheme (1) • Principle: what’s restricted offlineshould also be restricted online • Access to online content which is, or would be likely to be, • Refused Classification (RC), or • Classified X or R • by the Office of Film and Literature Classification (OFLC) Board should be restricted in the same way as access to offline material

  24. The Scheme (cont 2) • Act establishes co-regulatory scheme: Australian Communications & Media Authority (ACMA, former ABA) www.acma.gov.auand Internet industry www.iia.net.au (IIA) share responsibility for regulating Internet content • Scheme underpinned by industry-developed Codes of Practice • ACMA can supplement using reserve powers • Activity by ACMA is complaints-driven: Sch 5 cl 2 Broadcasting Services Act 1992 • Department of Communications, Information Technology and the Arts (DCITA) overview of scheme, insight into Commonwealth’s aims www.dcita.gov.au/__data/assets/file/32781/online_content_co-reg_scheme_report_Sept_2005.rtf

  25. Sen. Alston The Government's Regulatory Framework for Internet Content (2000) • Looks at Government’s reasoning behind 1999 amendments (http://www.austlii.edu.au/au/journals/UNSWLJ/2000/#V6N1FORUM) • some government aims (for example consistent laws among States, Territories and Commonwealth) yet to materialise

  26. 1999 Amendments • Required review of legislative provisions establishing online content scheme by 1 January 2003 • September 2002 DCITA published Issues Paper ‘A review of the operation of Schedule 5 to the Broadcasting Services Act 1992’ www.dcita.gov.au/media_broadcasting/consultation_and_submissions/a_review_of_schedule_5_to_the_broadcasting_services_submissions_closed

  27. Submissions • Mood of the Paper revealed support for stricter content regulation • One option considered by Minister: a central system to filter all local and overseas internet traffic through a "proxy" server. • But fears it would slow down overall Internet • Favours approach to toughen regulations on internet service providers, already obliged to filter out offensive material. • See also ‘Canberra clamp on net porn’ March 5 2003 Australian IT (Factiva)

  28. Elements of the Commonwealth Scheme Main elements of the Scheme: • Industry codes of practice • ACMA-administered complaints system • Community education

  29. 3 Codes of Practice regulating ISPs & ICHs under Cth Scheme • ISP Obligations in Relation to Internet Access Generally • ISP Obligations in Relation to Access to Content Hosted Outside Australia • Internet Content Host Obligations in Relation to Hosting of Content Within Australia Codes drafted by Internet Industry Association (IIA) (http://www.iia.net.au/codes.html) and registered by ABA, in response to requirement in Act this be done by 1 January 2000; failing this ABA would have imposed a standard on industry (Sch 5 cls 59 and 68 Broadcasting Services Act).

  30. ACMA administered complaints system • Under Scheme, any Australian resident or company can complain to the ACMA about offensive online content • ACMA provides telephone hotline as well as online complaints form: www.aba.gov.au/what/online/complaints/ • ACMA required to investigate all bona fide complaints, and decide whether material complained about falls into any prohibited category

  31. Community Education • Responsibility of ACMA and community advisory body established by Fed Govt NetAlert (http://www.netalert.net.au/) • Role: educate and inform public and industry about managing access to prohibited Internet content • Scheme does NOT apply to private or restricted distribution comms such as Intranets or email (definition of ‘Internet content’ under Sch 5 cl 3 Broadcasting Services Act). • Does NOT apply to chatrooms or live audio or video streaming • Does apply to material contained in newsgroups (page 18 Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill 1999 http://scaleplus.law.gov.au/html/ems/0/1999/0/0642404224.htm)

  32. Prohibited Content • Site hosted in Australia or overseas? (Sch 5 cl 10 Broadcasting Services Act). • Hosted in Australia: ‘prohibited content’ is Internet content Refused Classification (RC) or classified X by OFLC • also Internet content rated R, where not subject to ‘Restricted Access System’ • Hosted overseas: ‘prohibited content’ only that which would be Refused classification (RC) or classified X by OFLC • ‘Potential prohibited content’ is Internet content not classified by OFLC, but likely to be prohibited content if it were(Sch 5 cl 11 Broadcasting Services Act).

  33. Restricted Access System • RAS is system for preventing access by children to R-rated content (Sch 5 cl 4 BSA) • Minimum requirements for RAS's are in ABA's Restricted Access Systems Declaration 1999 http://www.aba.gov.au/newspubs/news_releases/archive/1999/130nr99.shtml • To qualify as a ‘Restricted Access System’, the system must perform three functions: • Registration • Qualification/Validation • Access

  34. Registration • The system must receive applications for registration in hard copy or electronically • To be registered, potential subscriber must • supply her/his name, • declare s/he is 18 years of age or older • provide credit card details or other evidence of age

  35. Qualification/Validation • The system must verify the potential subscriber’s age • Upon verification, issue a personal identification number (PIN) or password to applicant • on condition the security information is not revealed to anyone else

  36. Access • The system must require the applicant to input a valid password or PIN • before granting access to content which is, or would be likely to be, classified R.

  37. ACMA Complaints Scheme (1) • Any person who is an Australian resident or an Australian company can make a complaint to the ACMA about • objectionable material on the Internet or • about a contravention of the Codes by an ICH (Sch 5 cls 22 – 25 BSA). • The complaint must be made either in writing to the ACMA, or • via the online complaints form www.aba.gov.au/what/online/complaints/www.asp

  38. Complaints Scheme (cont 2) • Upon receiving a complaint, ACMA must investigate it unless the ACMA views the complaint as frivolous, misguided or designed to undermine the scheme (Sch 5 cl 26 BSA). • ACMA must take action where it is satisfied that the content complained of is prohibited content or potential prohibited content. • Action taken by the ACMA will depend on whether content complained of is hosted in Australia or overseas. • ACMA is required to inform all complainants of the outcome of their complaint (Sch 5 cl 26(3) BSA).

  39. ACMA action where material is hosted in Australia • If prohibited content hosted in Australia and classified RC, X or R (where no RAS in place): ACMA must issue a final take-down notice directing ICH to cease hosting relevant content by 6.00 pm next business day. • Where potential prohibited content has not been classified, but ACMA is satisfied it would be substantially likely to be classified RC, X or R (where no RAS in place): ACMA must refer it to OFLC for classification. • An interim take-down notice must also be issued where material is likely to be classified RC or X. • Notice directs recipient to cease hosting content until ACMA has notified of classification of content determined by OFLC. Requires that content be taken down no later than 6.00pm following business day (Sch 5 cl 30 BSA).

  40. ACMA action where material is hosted in Australia (2) • ACMA must give ICH written notice of OFLC’s decision. • If OFLC classifies content RC, X or R (where no RAS in place: content is prohibited content and must be dealt with accordingly by ACMA (see above). • This means that hosting R rated content hosted in Australia will be banned, unless there is an RAS in place.

  41. ACMA action where material is hosted outside Australia • If ICH is not in Australia, ACMA only takes action if (potential) prohibited content is RC or X category. • If ACMA forms view that content complained of is or would be classified RC or X: ACMA must notify suppliers of Scheduled Filters and ISPs of location of content (Sch 5 cl 40 BSA). • Notification is usually by email. • notification happens pursuant to Designated Notification Scheme set out in the IIA Codes. • ACMA may notify content to an Australian police force, if it thinks such action is warranted. • For example, such material might be that which contravenes a State Crimes Act such as child pornography, or matter instructive in the commission of a crime.

  42. Enforcement • Failure to comply with ACMA take-down notice or direction to comply with Code is an offence • Maximum penalty of $5,500 for individuals or $27,500 for corporations (Sch 5 Part 6 BSA). • A contravention of an ACMA direction or notice is considered to be a continuing offence • Each day during which the contravention continues and can attract up to 10% of the above penalties per day (s 213 BSA).

  43. Criticisms of the Commonwealth Scheme • 2003 Australia Institute study revealed current scheme is a “manifest failure”. • Youth and Pornography in Australia: Evidence on the extent of exposure and likely effects revealed 84% of teenage boys and 60% of girls accidentally came across Internet sex sites and 38% of boys and 2% of girls deliberately visited such sites. • drastic recommendation: all ISPs filter all net content http://www.tai.org.au/WhatsNew_Files/WhatsNew/DP52sum.pdf • view close to Federal Govt position, announced look at reducing access to hardcore pornography from PCs • ‘Net porn controls useless: study’ March 4, 2003 cnn.comhttp://edition.cnn.com/2003/WORLD/asiapcf/auspac/03/03/australia.netporn/index.html

  44. EFA criticised ineffectiveness of online regulation scheme • “failed dismally insofar as its alleged objective of making the Internet safer for children is concerned” (http://www.efa.org.au/Issues/Censor/cens1.html). • Unlike AI, EFA condemns current regime as infringement on adult free speech both generally, and in light of offshore publications not receiving same level of censorship. • Urges those who value freedom of speech to lobby Parliament repeal 1999 amdts to Broadcasting Services Act. • 2002 EFA response to DCITA’s Review of Operation of Schedule 5 to Broadcasting Services Act 1992 noted failings of regulatory scheme and review paper itself: Alston stmt trumpeting success of scheme were by own admission based on erroneous statistics. • “ABA's refusal to provide URLs of taken-down Australian hosted web pages, on ground that such information would enable a person to access prohibited content, indicates the ACMA believes such content has not been taken down from the Internet”. (http://www.efa.org.au/Publish/efasubm_bsa2002.html)

  45. Codes of Conduct • Internet Industry Association (IIA) Internet Industry Codes of Practice (version 7.2) http://www.iia.net.au/ContentCode7_2.rtf • Operates as part of a co-regulation scheme: • While voluntary, Broadcasting Services Act provides that if ACMA directs an ISP or ICH to comply with this code, they are required to do so

  46. ISPs and ICHs responsibilities (2) • Take reasonable steps to make sure that children do not become Internet subscribers without the consent of an adult; • Encourage subscribers who are commercial content providers to label content that might be unsuitable for children; • Advise subscribers who are commercial content providers about their legal responsibilities in relation to content; • Inform users about ways they can supervise and control their children’s access to Internet content; • Help subscribers block unwanted and undesirable email; • On becoming aware that an ICH is hosting Prohibited Content advise them about the Prohibited Content;

  47. Codes (cont 3) • Provide Scheduled Filters for subscribers in Australia at charge determined by ISP (although in case of individual subscribers this charge cannot exceed cost to the ISP of providing filter). • Obligation on ISPs to provide approved filters not apply where already an effective mechanism in place to filter content ( ‘designated alternative access prevention arrangement’); • Take reasonable steps to inform subscribers about their right to, and procedures for, making complaints to the ACMA about online content.

  48. Codes (cont 4) • Codes also recognise limitations of present filtering technologies and impracticality of filtering all Internet content • Nevertheless, Codes endorse end user empowerment including education, provision of information, and filtering methods as most practical means by which responsible adults can facilitate appropriate controls, particularly children • To encourage adoption of best practice standards IIA launched Family Friendly ISP Seal scheme. ISPs compliant with IIA codes to display a special seal known as ‘Ladybird Logo’.

  49. IIA Codes of Practices • IIA Content Regulation Code of Practice Webpage • http://www.iia.net.au/contentcode.html • Guide for ISPs:  Information About Online Content • http://www.iia.net.au/guide.html • Guide for Internet Users:  Information About Online Content • http://www.iia.net.au/guideuser.html

  50. INTERACTIVE GAMBLING

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