The Broadcasting Services Amendment (Online Services) Bill 1999 contains an insidious little section which has been almost completely neglected by those fighting against its passage:
21(2) To avoid doubt, sections 10, 19, 20, 22, 25, 26, 27 and 28 of the Classification (Publications, Films And Computer Games) Act 1995 do not apply to a classification under this Schedule.
Section 21(2) of the BSA explicitly says that various sections of the Classification Act DO NOT apply to Internet content. Let's see what that means:
The lack of notification and reporting required by the OFLC as a result of section 21(2) of the BSA is truly frightening. The fact that the OFLC has no grounds to decline to classify if they aren't provided with an unfettered copy of the material in question is patently ridiculous.
I'm especially concerned by what will happen if someone is prosecuted for hosting content which was prohibited because the OFLC wasn't provided with context when it was forced to provide a classification, and the defendants are unable to tender a classification certificate to prove their innocence because the OFLC hasn't been required to write one.
For all the noise Alston has made about bringing the 'net in line with other forms of media (which ignores the fact that the 'net isn't media anyway), it seems strange that the BSA forces the OFLC to operate in a manner which is totally different to its normal activities when Internet content is in question. Alston's hatred of the Internet couldn't have been made more obvious.
I had a telephone conversation with a gentleman from the National Office
of the Information Economy on the morning of June 24, followed up by email that
afternoon. I won't publish his name here because I'm sure he has work
to do and won't take kindly to getting bombarded with phone calls.
The thrust of the telephone conversation started with a discussion of the material on this web page. NOIE seems to think that there are adequate safeguards in the bill as it stands, and that an appeal to the Administrative Appeals Tribunal (AAT) would be adequate protection in the event of abuse of process by the ABA.
I do not believe that's the case. As the material above points out, section 21(2) severely reduces both the documentation requirements of the OFLC and its ability to refuse to deal with a classification application in cases where adequate context is not provided (films are usually classified in context; the relaxation of section 19 of the Classification Act means that that won't be the case for a web page: The OFLC will have to judge the merits of whatever the ABA gives it in isolation).
This is a big deal: For example, the normal classification guidelines for film include the stipulation that legitimate sex education and health related material merits a PG or M rating, never an R rating. Yet under this law, the ABA could submit a single sexually-explicit image to the OFLC for classification, and the OFLC would have to deal with that image in isolation -- Even if it comes from a legitimate sex education site or safe sex information site. Furthermore, if a "special access prevention notice" is served by the ABA which demands that every ISP in Australia block access to a certain image based on its visual description (which the Act permits -- Section 49(b) and 49(c) permit an access prevention notice to specify content in basically any way at all), then that image would be criminalized even if it was on a sex education site -- Something which is clearly much, much more onerous than any other censorship legislation in Australia.
When I pointed this out, the conversation moved on to interpretation and appeals. The NOIE advisor pointed to section 46 of the Acts Interpretation Act, and said that due to the inclusion of that reference the AAT would be sympathetic to an appeal if an access prevention notice placed an undue burden on ISPs. But section 46 doesn't say that at all: As I read it, it limits Government authorities (such as the ABA) to only generating legal instruments which are within their power as defined by the parliament (so that, for example, the ABA can't punish you for speeding). In this case, the parliament has been quite explicit in its intention that the ABA should be able to ban almost anything at all on the net, as long as it has been subjected to a complaint at some point in the past, and if that's an undue burden on industry than so be it.
The way the bill currently stands at the moment, every ISP in Australia would become liable for fines if the ABA ever issues one access prevention notice. The ABA would then be able to pursue prosecution against any ISP it pleases; ISPs would either have to pay the fines, or engage in lengthy and expensive legal proceedings to prove that compliance with the access prevention notice is economically unviable or technically infeasible. The potential for political abuse of this unprecedented censorship law is beyond belief. The onus of proof is on the defendent; What kind of law is this?
I have invited the NOIE person to supply a statement representing NOIE's official position on this matter, and I will publish it on this web page if it's ever forthcoming. Meanwhile, the dialogue continues (one hopes).