Updated as at 14/8/2001.

1.Telecommunications law and the Internet

Commonwealth telecommunications legislation applies to the provision of telecommunications networks such as the Internet. Internet Service Providers (ISPs) and website operators are regulated to the extent they use a telecommunication network to provide their services. The nature of that regulation is discussed below.

2. Australian Competition and Consumer Commission (ACCC)

Oversees the economic and some consumer regulation of the telecommunications industry including:

* monitoring and enforcing the telecommunications-specific competition provisions in the Trade Practices Act 1974 (Cth) (TPA) ; and
* monitoring and enforcing the telecommunications-specific access regime in the TPA.

3. Australian Communications Authority (ACA)

Oversees technical regulation of the telecommunications industry and is responsible for:

* the co-ordination, development and enforcement of industry codes of practice, industry standards and technical standards;
* investigating telecommunications related incidents and holding public inquiries; and
* giving directions to carriers and service providers (including ISPs).

4. Other regulatory bodies with limited powers over telecommunications

The Australian Communications Industry Forum ( ACIF) , the Telecommunications Access Forum ( TAF) , the Australian Transactions Report Analysis Centre ( AUSTRAC) , the Australian Securities and Investments Commission ( ASIC) and the Telecommunications Industry Ombudsman’s Scheme.

5. Regulation of carriers and service providers

Legislation regulates and distinguishes between carriers and service providers on the basis of differing ownership, control or access to telecommunication facilities.

6. What is a carrier?

An entity that owns or controls the facilities or infrastructure that supply public carriage services.

7. What is a service provider?

An entity that requires authorised access to the facilities owned or controlled by carriers to provide carriage or content services to the public. Service providers are further broken down into content providers and carriage service providers.

8. What is a content provider?

An entity that uses a listed carriage service to supply a ‘content service’ to the public. A content service includes a broadcasting service or an online service (whether for the provision of information, entertainment or educational material). It is likely a person operating a website would be considered to be a content service provider.(1)

9. What is a carriage service provider?

As distinct from carriers, a carriage service provider supplies a ‘listed carriage service’ to the public using one or more network units owned by one or more carriers and is subject to different licence requirements.

10. What is a listed carriage service?

A listed carriage service is a service for carrying communications by means of guided or unguided electromagnetic energy between two or more points, as least one of which is in Australia.(2)

11. What is a network unit?

Generally, a ‘network unit’ comprises the line links and transmission facilities necessary to establish connections between distinct places.

12. Regulation of ISPs

An ISP providing internet access services only (Internet Access Provider or IAP) will be regulated as a carriage service provider. An ISP that provides access to or maintains a publicly available website or mirror site may be regulated as both a carriage and content service provider.

13. General rights and obligations of ISPs

ISPs generally:

* must protect the confidentiality of information routed through a network. A use or disclosure of confidential information will not be an offence if made under lawful authorisation. The lawful authorisation must be in connection with the person’s duties as a telecommunications contractor as a witness in a judicial proceeding, for law enforcement purposes, the protection of public revenue or to avert a threat to a person’s life. A record must be kept of such disclosures in certain cases;(3)

* must not connect unlabelled or incorrectly labelled, unauthorised or dangerous equipment to a telecommunications network. The manager of a telecommunications network who suffers loss as a consequence may seek damages, an account of profits, injunctive relief or a disconnection order;

* are under a general obligation to assist Commonwealth, State and Territory authorities for the purposes of enforcing the criminal law, protecting the public revenue and safeguarding national security;(4)

* must keep detailed records and books enabling the separate identification of charges and services; and

* may, as new entrants to the telecommunications industry, obtain access on an equitable basis to certain declared telecommunications services such as telephone services, public pay phones and certain prescribed carrier services.

14. An Internet Access Provider (IAP) must provide interception capability

Provided the Federal Attorney General does not require an IAP to provide specific ‘interception capabilities’ or ‘special assistance capabilities’ pursuant to a ministerial determination, the IAP is simply obliged to ensure their network or facilities will enable a communication passing over them to be intercepted in accordance with a warrant issued under the Telecommunications (Interception) Act 1979 (Cth) . The obligation is to ensure interception capability is developed, installed and maintained to the relevant standard.(5)

An IAP may be required to decrypt messages that have been encrypted by the IAP but is not obliged to decrypt communications that have been encrypted by customers before being carried over a network.

15. Interception of data transmissions prohibited

The interception of communications passing over a telecommunications system or network is prohibited unless performed:(6)

* by an employee of a carrier and the information concerns the operation or maintenance of a network or supply of services by the carrier;
* by an officer of an agency issued with a valid warrant;
* pursuant to the Australian Security Intelligence Organisation’s (ASIO) functions;
* in connection with an investigation of the Australian Federal Police or National Crime Authority;
* by an employee of a carrier or licensed service provider or any other person in the course of carrying out their duty and connected with routine line or equipment installations;
* by an employee tracing a person who is suspected of contravening the Crimes Act 1914 (Cth) Pt VIIB pursuant to a valid warrant issued by the Attorney General or Director General of Security;
* in the course of duties by an ASIO officer, a federal or state police officer when party to a communication (or with the consent of a party who is in communication) with a person reasonably suspected of being in the process of committing a serious offence or suicide.

Subject to specified exemptions, the further communication, use, recording or use in evidence of information obtained from intercepted communications (whether legally obtained or unlawfully) is prohibited.

16. Industry Codes of Conduct affecting ISPs

The ACA may prepare a legally enforceable ‘industry standard’ if, after requesting the preparation of an industry code, no code satisfactory to the ACA has been developed. Civil penalties attach to industry participants who fail to comply with an industry standard.(7)

In the event an Industry Code of Conduct is developed, the ACA retains a power to impose sanctions for failure to comply with an industry code. The legislation sets out various matters industry codes of practice may deal with.

The Protection of Personal Information of Customers of Telecommunications Providers Code (registered 1 May 2000) (Code) applies to all carriers, carriage service providers and content service providers. If a website operator is considered a content provider for the purposes of the Code, the website operator will be subject to ACA regulation (eg ‘formal warnings’, written directions to comply and penalties for non-compliance) despite not being a signatory to the code.

The Code expands on but does not override the privacy provisions in the Telecommunications Act 1997 (Cth) or in any other relevant legislation.

17. Telecommunications Industry Ombudsman Scheme

Carriers and eligible ISPs must enter into the Telecommunications Industry Ombudsman (TIO) Scheme.(8)

Subject to various guidelines and consultations, the ACA can direct (or exempt) specified carriers or eligible ISPs to join the TIO Scheme.(9)

Members of the TIO Scheme must comply with the TIO Scheme. An ISP member who fails to comply with the TIO Scheme breaches the service provider rules.(10)

The TIO must maintain a register of scheme members open for public inspection at all reasonable times.(11)

18. Complaints against ISPs

Disputes between ISPs and consumers may be referred to the TIO. (See http//:www.tio.com.au) The TIO has the power to investigate, determine and give directions relating to complaints made by end users.

19. Telecommunications offences under the Crimes Act 1914 (Cth)

It is an offence to:

* tamper or interfere with facilities belonging to a telecommunications carrier;

* hinder the normal operations of a carriage service by manipulating, tampering or interfering with a facility operated by a carrier;

* use communications for improper purposes;

* intentionally or recklessly cause communications to be received by a person or service other than to whom it is directed;

* send signals to satellite without lawful authority or excuse;

* obtain carriage services with the intention of defrauding the carrier of any rental, fee or charge duly payable;

* possess or operate a call switching device without appropriate authorisation; or

* use equipment in relation to a network for unlawful purposes.

20. Consumer protection

Consumers are entitled to the following legislative protection:

* continuation of untimed local calls;
* participants must give customer service guarantees;
* protection against the non-provision of standard carriage services; and
access to the TIO Scheme for advice and limited relief.



Other relevant Fact Sheets:

Sources of Law
Telecommunications Act 1997 (Cth)
Telecommunications (Interception) Act 1979 (Cth)
Crimes Act 1914 (Cth)
Protection of Personal Information of Customers of Telecommunications Providers Code (registered 1 May 2000)

End Notes
1. Telecommunications Act 1997 (Cth) section 15
2. Telecommunications Act 1997 (Cth) sections 7,
3. Telecommunications Act 1997 (Cth) Part 13
4. Telecommunications Act 1997 (Cth) sections 47, 63
5. Telecommunications Act 1997 (Cth) Parts 14, 15
6. Telecommunications Act 1997 (Cth) Parts 14, 15
7. Telecommunications Act 1997 (Cth) Part 6
8. Telecommunications Act 1997 (Cth) sections 245, 246
9. Telecommunications Act 1997 (Cth) sections 247, 248, 249
10. Telecommunications Act 1997 (Cth) sections 98, 250
11. Telecommunications Act 1997 (Cth) section 251