Updated as at 4/11/02

1. Introduction

Online content is regulated by both Commonwealth and State legislation. The Commonwealth regime establishes a framework for regulating Internet Service Providers (ISPs) and Internet Content Hosts (ICHs). An ISP is a person who supplies an internet carriage service, consisting of service points within Australia, which enables end-users (members of the public) to access the internet. A corporate intranet for example, would not generally be regarded as an ISP as it is not accessible to the public. ICHs are persons who host internet content in Australia. For example, a person who has their own website or server in Australia and hosts content provided by a range of contributors is an ICH.

Content providers, creators and users are regulated by the laws of several States. Such laws generally regulate the intentional publication and transmission of proscribed material online.

2. State and Territory Regulation

As at 4 November 2002, legislation regulating the publication and transmission of proscribed material online by CPs and CCs exists in Victoria , the Northern Territory , and Western Australia . South Australia has a Bill in parliament to allow regulation of online content that passed the House of Assembly on 27 August 2002.(1) Relevant NSW amendments are contained in Schedule 2 to the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 . A commencement date has not yet been proclaimed for Schedule 2. The NSW Parliamentary Standing Committee on Social Issues recommended in July 2002 that Schedule 2 be repealed. (2) The Government response is awaited. Queensland and Tasmania have yet to enact any relevant legislation.

In relation to offline material, such as films, videos, books and magazines, all states and territories have agreed to follow the classification guidelines made by the Commonwealth Classification Board.(3) For details see the various Office of Film and Literature Classification (OFLC) Classification Guidelines.

3. Commonwealth Regulation

The Broadcasting Services Amendment (Online Services) Act 1999 became law on 16 July 1999. The Act inserted a new Schedule 5 to the Broadcasting Services Act 1992. Schedule 5 establishes a national scheme for the regulation of prohibited content on the internet.

The scheme is based on the principle that what is restricted offline should also be restricted online (ie access to online content which is or would be likely to be refused classification or classified X or R by the OFLC Board should be restricted in the same way as access to offline material.)

The Act is intended to establish a co-regulatory scheme under which the Australian Broadcasting Authority (ABA) and the internet industry share responsibility for the regulation of internet content. More specifically, the scheme is underpinned by industry developed codes of practice which the ABA can supplement using its reserve powers. In general however, activity by the ABA under the scheme is complaints-driven.(4)

4. Main Elements of Commonwealth Scheme

The main elements of the scheme are summarised below:

(a) Industry codes of practice

The Codes of Practice constitute the main basis of regulating ISPs and ICHs under the scheme. The three Codes were drafted by the Internet Industry Association (IIA) and registered by the ABA, in response to a requirement in the Act that this be done by 1 January 2000, failing which the ABA would impose a standard on the industry.(5) The Code have been updated several times with the latest version being registered by the ABA in May 2002. The ABA can direct ISPs and ICHs to comply with the provision of the Code that is being contravened.(6) The ABA also has a number of other reserve powers it can use if the Codes fail to provide the appropriate community safeguards.(7)

In March 2002, the IIA launched the " IIA Family Friendly ISP Program" under which the ISPs who are compliant with the Codes can display a special seal known as the "Ladybird Logo".

(b) ABA administered complaints system

Under the scheme, any Australian resident or company can complain to the ABA about offensive online content. The ABA provides a telephone hotline as well as an online complaints form. The ABA is required to investigate all bona fide complaints, and decide whether the material complained about falls into prohibited categories. For ABA action, see the ABA complaints scheme below.

(c) Community Education

This is the responsibility of the ABA and a community advisory body established by the Federal Government called NetAlert . Their role is to educate and inform the public and the industry about managing access to prohibited content on the internet.

The scheme does not apply to private or restricted distribution communications such as Intranets or email.(8) Also it does not apply to chatrooms or live audio or video streaming.(9) However it does apply to material contained in newsgroups.(10)

5. ISP and ICH responsibilities under the Codes of Practice

Under the Codes of Practice ISPs and ICHs have responsibilities as follows:

*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;

*Provide Scheduled Filters for subscribers in Australia at a charge determined by the ISP (although in the case of individual subscribers this charge cannot exceed the cost to the ISP of providing the filter). The obligation on ISPs to provide approved filters does not apply in instances where there is already an effective mechanism in place to filter content (the ‘designated alternative access prevention arrangement’);

*Take reasonable steps to inform subscribers about their right to, and the procedures for, making complaints to the ABA about online content.

Examples of the ways in which these obligations can be fulfilled are set out in the relevant IIA code.

6. Scheduled Filters

Under the Code, a Scheduled Filter is one that is assessed as satisfactory by the IIA and the ABA, on the basis of the following criteria:

*ease of installation (where applicable);
*ease of use;
*configurability;
*ability for updates in respect of content to be filtered having regard to the requirements of the designated; notification scheme; and
*availability of support.(11)

The Codes recognize the limitations of present filtering technologies and the impracticality of filtering all internet content. Nevertheless, the Codes endorse end user empowerment including education, the provision of information, and filtering methods as the most practical means by which responsible adults can facilitate appropriate controls, particularly in the case of children.

The list of Scheduled Filters can be found in Schedule 1 to the Codes.

7. What is Prohibited Content?

Under the scheme, the meaning of ‘prohibited content’ differs depending on whether the site is hosted in Australia or overseas.(12)

* For sites hosted in Australia prohibited content is internet content that has been refused classification (RC) or classified X by the OFLC. It is also internet content that is rated R where access to the internet content is not subject to a restricted access system (the term ‘restricted access system’ is explained shortly).

* For sites hosted overseas prohibited content is only material that would be refused classification (RC) or classified X by the OFLC.

Potential prohibited content is internet content which has not been classified by the OFLC, but would be likely to be prohibited content if it were to be classified. (13)

8. Restricted Access System (‘RAS’)

A RAS is a system for preventing access by childen to R-rated content.(14) Minimum requirements for RAS's are set out in the ABA's Restricted Access Systems Declaration 1999 In order to qualify as a Restricted Access System, the system must perform three functions:

(a) Registration

The system must receive applications for registration in either hard copy or electronically. In order to be registered, the potential subscriber must supply her/his name, declare that s/he is 18 years of age or older and provide credit card details or other evidence of age.

(b) Qualification/Validation

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

(c) 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.

9. The ABA complaints scheme

Any person who is an Australian resident or an Australian company can make a complaint to the ABA about objectionable material on the Internet or about a contravention of the Codes by an ICH.(15)

The complaint must be made either in writing to the ABA, or via an online complaints form.

Upon receiving a complaint, the ABA must investigate it unless the ABA views the complaint as frivolous, misguided or designed to undermine the scheme.(16)

The ABA must take action where it is satisfied that the content complained of is prohibited content or potential prohibited content.

The action taken by the ABA will depend on whether the content complained of is hosted in Australia or overseas.

10. ABA action where material is hosted in Australia

Prohibited Content

If the content is hosted in Australia and is classified RC, X or R (where there is no RAS in place), the ABA must issue a final take-down notice directing the ICH to cease hosting the relevant content by 6.00 pm the next business day.

Potential Prohibited Content

Where content has not been classified, but the ABA is satisfied it would be substantially likely to be classified RC, X or R (where there is no RAS in place), the ABA must refer it to the OFLC for classification. An interim take-down notice must also be issued where the material is likely to be classified RC or X. This notice directs the recipient to cease hosting the content until the ABA has notified them of the classification of the content determined by the OFLC. The notice requires that the content be taken down no later than 6.00pm the following business day.(17)

The ABA must give the ICH written notice of the OFLC’s decision. If the OFLC classifies the content RC, X or R (where there is no RAS in place) then the content is prohibited content and must be dealt with accordingly by the ABA (see above).

11. ABA action where material is hosted outside Australia

If the ICH is not in Australia then the ABA only takes action if the prohibited content or potential prohibited content is either in the RC or X category. If the ABA forms the view that the content complained of is or would be classified RC or X then the ABA must notify suppliers of Scheduled Filters and internet service providers of the location of the content.(18)

Notification is usually by email. This notification happens pursuant to the Designated Notification Scheme set out in the IIA Codes. This scheme is similar to a substituted service regime and is deemed to provide adequate notice. The ABA may notify the 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.

12. Finalisation of Complaints

The ABA is required to inform all complainants of the outcome of their complaint.(19)

13. Enforcement

Failure to comply with an ABA take-down notice or a direction to comply with a Code is an offence carrying a maximum penalty of $5,500 for individuals or $27,500 for corporations.(20) A contravention of an ABA direction or notice is considered to be a continuing offence each day during which the contravention continues and thus can attract up to 10% of the above penalties per day.(21)

14. ISPs and ICHs are exempt from State or Territory laws when they are not aware of nature of content

Importantly for ISPs and ICHs, they can not be held responsible under State or Territory law or under the common law or a rule of equity for carrying or hosting particular material on the internet if they were not aware of the nature of the content . (22)

For example, if an ISP carries material which is defamatory or in contempt of court, and is not aware that the material is carried on its service, the ISP cannot be sued or prosecuted for carrying this material. The intention of the law is that the content providers or users should bear this liability.

However, if an ISP becomes aware of illegal or infringing material on its service and takes no action to have it removed within a reasonable time, the protections afforded by law will not apply.



Other relevant Fact Sheets:

Sources of Law
Broadcasting Services Act 1992 (Cth), Schedule 5
Internet Industry Association Codes of Practice
Classification (Publications, Films and Computer Games)(Enforcement) Act 1995 (Vic)
Classification of Publications, Films and Computer Games Act 1998 (NT)
Censorship Act 1996 (WA)

End Notes
1. Classification (Publications, Films and Computer Games) (On-Line Services) Amendment Bill (No. 47)
2. See the " Safety Net: Inquiry into the Classification (Publications, Films & Computer Games) Enforcement Amendment Bill 2001: Final Report: On-line Matters".
3. Classification decisions are made in accordance with the National Classification Code in the Schedule to the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
4. Broadcasting Services Act 1992 (Cth), Sch 5, cl 2.
5. Broadcasting Services Act 1992 (Cth), Sch 5, cls 59 and 68.
6. Broadcasting Services Act 1992 (Cth), Sch 5, cl 66.
7. Eg, the ABA can implement industry standards where there are no codes or codes are deficient. Broadcasting Services Act 1992 (Cth), Sch 5, cls 68 - 71.
8. See Broadcasting Services Act 1992 (Cth), Sch 5, cl 3, definition of 'Internet content' .
9. See Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill 1999, page 18. For an online version of the Explanatory Memorandum click here.
10. See Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill 1999, page 18. For an online version of the Explanatory Memorandum click here.
11. IIA Code, cl 4.6.
12. Broadcasting Services Act 1992 (Cth), Sch 5, cl 10.
13. Broadcasting Services Act 1992 (Cth), Sch 5, cl 11.
14. Broadcasting Services Act 1992 (Cth), Sch 5, cl 4 15. Broadcasting Services Act 1992 (Cth), Sch 5, cls 22 - 25.
16. Broadcasting Services Act 1992 (Cth), Sch 5, cl 26.
17. Broadcasting Services Act 1992 (Cth), Sch 5, cl 30.
18. Broadcasting Services Act 1992 (Cth), Sch 5, cl 40.
19. Broadcasting Services Act 1992 (Cth), Sch 5, cl 26(3).
20. Broadcasting Services Act 1992 (Cth), Sch 5, Part 6.
21. Broadcasting Services Act 1992 (Cth), s 213.
22. Broadcasting Services Act 1992, Sch 5, cl 91.