The draft Bill has attracted a great deal of criticism, and there is developing a great deal of discussion, at least on the internet, about the extent to which a combination of technology and parent/teacher self-help can provide a better solution to any problems of minors accessing unsuitable material.
The comments in this paper are largely directed to the draft Bill's treatment of the providers of `on-line services' (as the Bill calls them). The Bill is fundamentally ambiguous in its definitions of 'on-line service' and `on-line service provider'[2]. Prima facie, it imposes the same liabilities equally on everyone from Telstra (as carrier) to access providers, to content hosts, and to content creators, irrespective of their roles in relation to particular content. That is one of its main flaws. It then attempts to ameliorate this by providing two main defences (complying with an `industry code' or taking `reasonable steps'), which may differentiate in their operation between different types of `on-line service providers' - but how, no one yet knows.
The Bill's real content is unknown because all offences by `on-line service providers' are subject to a defence of compliance with a (misnamed) 'industry code of practice' (cl 5). Such 'codes' are really just regulations issued by 'participating Ministers', and need have no connection with any 'industry' views. The nature of the offences are unknown while the content of the defences remain unknown. Honest legislation would at least include an 'Interim Code' which would operate until replaced by a negotiated Code - disallowable by Parliament. The draft Bill is a licence to create serious criminal offences by regulation, and is inappropriate in a society governed by the rule of law. Parliament should define criminal offences, not 'participating Ministers', or (just as bad) 'industry' representatives.
The alternative defence available to providers of 'on-line services', that of taking 'reasonable steps' (cl 4), encourages by the matters that it says a Court may take into account, a range of practices which in many contexts will be undesirable, particularly in relation to privacy:
(a) Undertakings by users can only be obtained where identifiable details of users are obtained;
(b) Random monitoring of material transmitted, including e-mail, encourages disdain for the privacy of employees, students and others[3];
(c) Requiring identification and age verification by those accessing age-restricted material, as well as being unreasonable in many contexts, will encourage the commercial re-use of such identification details collected at considerable expense (and with no privacy laws applying to the private sector to stop this);
(d) Encouraging server operators to delete content following complaints (irrespective of whose content it is) encourages arbitrary and unchallengeable censorship by those who control the most resources, to the detriment of content providers.
In the absence of an easy-to-comply with, liberal, and guaranteed watertight Code of Practice, any on-line service provider providing access to content that they do not create will inevitably 'play safe' and take the maximum steps available to it to ensure that a 'reasonable steps' defence would be upheld. This will hasten the demise of both freedom of expression on the net, and what remains of any anonymity there is in using the net. It will increase the extent of surveillance in cyberspace, and the commercial use of such surveillance.
In relation to material which might be 'refused classification' (RC), the draft Bill criminalises genuinely 'private' (person to person) communications in a way which is not done for voice telephony or the post (snail mail). There is no 'RC' classification for what consenting adults say or write to each other, nor should there be.
The Bill's existence as a draft to be considered for uniform national implementation by SCAG undercuts what might otherwise be the development of a rational national debate following the release of the Australian Broadcasting Authority's report, also scheduled for July. SCAG would be better off waiting for the ABA report, and then asking for a draft Bill to be drawn up on more considered foundations.
In ACLU v Reno[4]http://www.epic.org/CDA/], decided 12 June 1996, the American Civil Liberties Union (ACLU) and a coalition of other plaintiffs succeeded in obtaining from the Court of Appeals for the Third Circuit a preliminary injunction against enforcement of the US Communications Decency Act (CDA) (1996). The Court declared it unconstitutional principally on the grounds of its inconsistency with the First Amendment to the US Constitution protecting freedom of speech, and also Fifth Amendment claims concerning lack of due process. The matter will now be appealed to the Supreme Court.
The US Constitution does not protect `obscene' speech, but does require any limitations on `indecent' speech to be supported by compelling government interests and must be `narrowly tailored' or `use the least restrictive means' to achieve such objectives. The government asserted that shielding minors from access to indecent materials is the compelling interest supporting the CDA, but (even accepting this) the Court concluded that the means employed were not appropriately narrow.
What is most significant is that the members of the Court described the nature of the internet or cyberspace in such a way that (if adopted by the Supreme Court) it may make it virtually impossible for any revised legislation to achieve the aim of shielding minors by limiting the distribution of content. The following quotations indicate the Court's approach:
Sloviter, Chief Judge:
* Whatever the strength of the interest the government has
demonstrated in preventing minors
from accessing "indecent" and "patently offensive" material online, if the means it
has chosen sweeps more broadly than necessary and thereby chills the expression of
adults, it has overstepped onto rights protected by the First Amendment.
* Thus one of the factual issues before us was the likely effect of
the CDA on the free
availability of constitutionally protected material. A wealth of persuasive evidence, referred
to in detail in the Findings of Fact, proved that it is either technologically impossible or
economically prohibitive for many of the plaintiffs to comply with the CDA without
seriously impeding their posting of online material which adults have a constitutional right
to access.
* We have also found that there is no effective way for many
Internet content providers to
limit the effective reach of the CDA to adults because there is no realistic way for many
providers to ascertain the age of those accessing their materials.
* I do not believe a statute is narrowly tailored when it subjects
to potential criminal penalties
those who must depend upon third parties for the effective operation of a statutory defense.
* [Congress] could have chosen to assist and support the development
of technology that
would enable parents, schools, and libraries to screen such material from their end. It did not
do so, and thus did not follow the example available in the print media where non-obscene but
indecent and patently offensive books and magazines abound. . . . Instead, in the CDA
Congress chose to place on the speakers the obligation of screening the material ...
Buckwalter, District Judge:
* This conflict [about the meaning of `indecent'] will undoubtedly
cause Internet users to
"steer far wider of the unlawful zone" than if the community standard to be applied were
clearly defined. The chilling effect on the Internet users' exercise of free speech is obvious.
* Thus, individuals attempting to comply with the statute presently
have no clear indication
of what actions will ensure that they will be insulated from criminal sanctions under the
CDA.
Dalzell, District Judge
* These Findings lead to the conclusion that Congress may not
regulate indecency on the
Internet at all.
* Four related characteristics of Internet communication have a
transcendent importance to
our shared holding that the CDA is unconstitutional on its face.
(1) the Internet presents very low barriers to entry.
(2) these barriers to entry are identical for both speakers and listeners.
(3) as a result of these low barriers, astoundingly diverse content is available on the
Internet.
(4) the Internet provides significant access to all who wish to speak in the medium, and
even creates a relative parity among speakers.
* The CDA will, without doubt, undermine the substantive,
speech-enhancing benefits that
have flowed from the Internet. . . . Barriers to entry to those speakers affected by the Act
would skyrocket, especially for non-commercial and not-for-profit information providers.
. . . The diversity of the content will necessarily diminish as a result. . . .The CDA will
also skew the relative parity among speakers that currently exists on the Internet . . . This
change would result in an Internet that mirrors broadcasting and print, where economic
power has become relatively coterminous with influence.
* Perversely, commercial pornographers would remain relatively
unaffected by the Act,
since we learned that most of them already use credit card or adult verification anyway.
* ... the Internet deserves the broadest possible protection from
government-imposed,
content-based regulation.
* Any content-based regulation of the Internet, no matter how benign
the purpose, could
burn the global village to roast the pig.
* The Internet is a far more speech-enhancing medium than print, the
village green, or the
mails. Because it would necessarily affect the Internet itself, the CDA would necessarily
reduce the speech available for adults on the medium. This is a constitutionally intolerable
result.
* Parents, too, have options available to them. As we learned at the
hearing, parents can
install blocking software on their home computers, or they can subscribe to commercial
online services that provide parental controls.
* Cutting through the acronyms and argot that littered the hearing
testimony, the Internet
may fairly be regarded as a never-ending worldwide conversation. The Government may
not, through the CDA, interrupt that conversation. As the most participatory form of mass
speech yet developed, the Internet deserves the highest protection from governmental
intrusion.
In the absence in Australia of a constitutional provision similar to the First Amendment, the relevance of ACLU v Reno to Australia is mainly indirect:
* If the Supreme Court takes the view that `Congress may not regulate
indecency on the Internet at all' (Dalzell DJ), then the United States, the
current home of by far the bulk of internet content, will not be able to
criminalise the provision of content to minors, lending powerful support to the
development of technologies to assist parents and teachers to block content.
Attempts to criminalise access and content providers in relation to access by
minors is far less likely to become an international standard, whereas
international standards to filter content, such as PICS (Platform for Internet
Content Selection), will develop.
* The language of the Court adds a powerful argument to those who argue on
policy grounds that legislation like the draft Australian internet censorship
law will cause enormous and undesirable distortions to the desirable
development of the internet.
* The general thrust of the judgments that such over-broad laws as the CDA
carry the danger of an unconstitutional `chilling effect on the Internet users'
exercise of free speech' (Buckwalter DJ) may be relevant to Australian
constitutional considerations. Any legislation which requires - or perhaps even
encourages by way of defences - extensive monitoring of internet communications
(with a 'chilling effect'), or blocking of communications ('refused access
lists'), in such a way that political speech is caught up by over-broad
restrictions, may have constitutional implications. It could be argued that
such legislation interferes with the implied constitutional freedom of
political speech[5], if it is done in a way
which is disproportionate to any 'legitimate' censorship goals to be achieved.
[1] The (leaked) text of the draft () explains: 'This draft has been prepared by the NSW Parliamentary Counsel's Office at the request of Censorship Officers. It takes into account the provisions included in the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) and the Censorship Bill 1995 (WA) and model provisions prepared for discussion by the Parliamentary Counsel's Committee (PCC). The draft is in the form of a Part suitable for inclusion in the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) and may be a suitable model for adoption by other jurisdictions. While it has been circulated to the PCC and some members of that Committee have commented on it, it has not been settled by that Committee.'
[2] `on-line service means a service provided by or through the facilities of a computer communications
system and accessed through the public telecommunications network that allows for:
(a) the input, output or examination of computer data or computer programs, or
(b) the transmission of computer data or computer programs from one computer to another, or
(c) the transmission of computer data or computer programs from a computer to a terminal service.'
`on-line service provider means a person who owns, or who has the control and management of the
operation of, an on-line service.'
[3] .Such `reasonable steps' would, of course, be illegal where they conflict with the Telecommunications (Interception) Act 1979 - but as explained below, where this is so in the internet context is most uncertain.
[4] see for the full text of the decision, summary of highlights, and analysis.
[5] see Nationwide News v Wills (1992) 177 CLR 1 and subsequent High Court decisions on this right