1. Laws regulating online content
Federal, State and Territory law regulate online content in different ways as follows:
(a) ISPs and ICHs are governed by Commonwealth broadcasting services legislation, and
(b) State and Territory laws govern online content providers, creators and users.
An example of state legislation is the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Victoria). It targets content creators or providers and users. The legislation makes it an offence for individuals or companies to publish certain prohibited material in Victoria, including publishing on the internet. The Victorian legislation does not apply to an internet service provider, unless that provider creates or knowingly downloads or copies objectionable material.(1) This means an internet service provider (ISP) or internet content host (ICH) will not break the law unless it knows it is making prohibited material available.
As at 1 March 2001, relevant State laws existed in Victoria, the Northern Territory and Western Australia and pending in South Australia. See Online Content Regulation fact sheet.
Three internet industry codes of practice (Codes) meeting the requirements of the broadcasting services legislation and registered by the Australian Broadcasting Auhtority (ABA) constitute the main basis of regulation of ISPs and ICHs. The ABA has a number of reserve powers it can use if the Codes do not meet the aims of the legislation.
The legislation does not apply to private or restricted distribution communications such as intranets or email(2) and does not apply to chatrooms or live audio or video streaming.(3) It does apply to material contained in newsgroups.(4)
2. What is Prohibited Content?
(a) For sites hosted in Australia
Prohibited content is material that:
* would be refused classification (RC) or classified X by the Commonwealth Office of Film and Literature Classification (OFLC); or
* is rated R where access to the internet content is not subject to a restricted access system (RAS) (see below).
(b) For sites hosted overseas
Prohibited content is material that would be refused classification (RC) or classified X by the OFLC.
Material is classified by the OFLC on the basis of offensive language, sex and nudity and levels of violence. Factors involved in RC, X and R categories can be found in the Classification Guidelines at http://www.oflc.gov.au.
3. What is a restricted access system (RAS)?
An RAS is an access control system preventing access by children to R rated content. The ABA has set minimum requirements for a RAS in the ABA's Restricted Access Systems Declaration 1999 (No. 1) at http://www.aba.gov.au.
A system will qualify as a RAS if it performs the following functions:
Registration: the system must receive applications for registration in either hard copy or electronic form. To be registered the potential subscriber must supply her or his name, declare that he or she is 18 years of age or older and provide credit card details or other evidence of age.
Validation: the system must verify the potential subscriber's age. Upon verification of age, the system must issue a personal identification number or password to the applicant on condition the security information is not revealed to anyone else.
Access: the potential subscriber will be required to input a password or PIN to access internet content. Prohibited content should not be encountered until the PIN or password has been verified.
4. ISPs and ICHs are exempt from State and Territory laws when not aware of illegal or prohibited content
ISPs and ICHs are not responsible under a State or Territory law for carrying or hosting particular material on the internet if they were not aware of the nature of the content.(5)
For example, an ISP carrying prohibited content, defamatory material or material in contempt of court cannot be prosecuted if unaware of that material.
When an ISP becomes aware of illegal or infringing material on their service and takes no action to remove it within a reasonable time, the above protection may not apply.
5. Enforcement
Breach of a Code is not an offence under the legislation. The ABA may issue formal directions to an ISP or ICH to comply with any Code provision or take remedial action.
Failure to comply with an ABA direction or take down notice is an offence carrying a penalty of up to $5,500 for individuals or $27,500 for corporations. Contravention of an ABA direction or notice is a continuing offence carrying a penalty of up to 10% of the above penalties per day.
6. ISP and ICH obligations
Under the Codes, ISPs and ICHs have the following obligations:
(a) Take reasonable steps to make sure children do not become internet subscribers without the consent of an adult.
(b) Encourage subscribers who are commercial content providers to label content that might be unsuitable for children.
(c) Advise subscribers who are commercial content providers about their legal responsibilities in relation to content.
(d) Inform users about ways they can supervise and control their children's access to internet content.
(e) Help subscribers block unwanted and undesirable email.
(f) On becoming aware that an ICH is hosting prohibited content, advise them about the prohibited content.
(g) Provide Approved Filters for subscribers in Australia at a charge determined by the ISP.
(h) Take reasonable steps to inform subscribers of their procedural rights to complain to the ABA about online content.
Examples of how these obligations can be fulfilled are set out in the relevant Code.(6)
7. What is an approved filter?
An Approved Filter is a filter assessed as satisfactory by the Internet Industry Association (IIA) and the ABA on the basis of the following:
* 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.
The list of Approved Filters can be found in Schedule 1 to the Codes.
8. Making a complaint to the ABA
An Australian resident or an Australian company can make a written or online complaint to the ABA about material on the internet (see http://www.aba.gov.au/what/online/complaints.htm)
Upon receiving a complaint the ABA must investigate it, unless it considers the complaint to be frivolous, misguided or designed to undermine the scheme.
The ABA must determine whether the content is potential prohibited content or prohibited content and refer the issue to the OFLC for classification.
The ABA must also determine whether the content complained of exists at an IP address in Australia or overseas.
9. Where material is hosted in Australia
Where the ABA forms the view that the content would be classified RC or X, it must give the relevant ISP or ICH an Interim Take-Down Notice. This Notice directs the recipient not to host the content until the ABA has notified them of the final classification of the content, as determined by the OFLC. The Notice further requires that the content be taken down no later than 6.00pm the following business day.
The ABA must at the same time refer the content to the OFLC for classification.
If the ABA forms the view that the content would be classified R the ABA must refer the content to the OFLC and inform the ICH of this. No Interim Take-Down Notice is issued. If the OFLC classifies the material R, then the ABA must issue a notice requiring that the content be taken down OR a restricted access system be put in place by 6.00pm the next business day.
For all material that is confirmed as prohibited content, the ABA will issue a final Take Down Notice regardless of whether the content has already been taken down.
10. Where material is hosted outside Australia
If the ICH is outside Australia the ABA only takes action if the potential prohibited content is classified RC or X. R rated material is not considered potential prohibited content if it is hosted outside Australia.
The ABA must refer the content complained of to the OFLC if it forms the view that it would be classified RC or X.
On receiving the classification decision from the OFLC, the ABA must notify ISPs and makers of Approved Filters of the prohibited content. Notification occurs pursuant to the Designated Notification Scheme set out in the Codes.
The ABA can inform an Australian police force about the content if it is appropriate. For example, the material might contravene State criminal legislation (eg child pornography).
The ABA is required to inform all complainants about the outcome of their complaint.
11. Defining objectionable content at an international level
The publication and storage of objectionable content can lead to civil or criminal liability. It can also be severely disruptive to business activity as servers, hard drives or computers may be seized as evidence.
Given the international nature of the internet, clear-cut rules cannot be provided to avoid prosecution for illegal content in all jurisdictions. Content regulation varies between state, territory and country. Whether or not content is illegal depends on which state, territory or country it is published in.
Although there is no precise definition of what constitutes objectionable content it would generally include the following:
(a) The storage or publication of obscene or pornographic content such as material involving the instruction or promotion of crime, violence or sexually degrading acts.
(b) The publication of content that portrays racial, gender or religious stereotypes.
(c) The publication of content that encourages the breach of a particular commercial contract or agreement.
12. Management of legal liability
(a) Businesses should implement conditions and procedures to limit the accessibility of their website to those jurisdictions they intend to deal with. If a business intends for its site to be accessible over a wide range of jurisdictions it should seek legal advice on how to minimise the risk of objectionable content in those jurisdictions.
(b) Consideration should be given to implementing the following procedures:
* complaints about material or questionable material are referred to an appropriate person;
* obscene, pornographic or other criminal material is forwarded to the police if appropriate;
* all information made available over the internet is audited periodically to ensure there is no objectionable content.
(c) Where users may upload or post material to the site (eg a bulletin board or chat room) the associated legal risk of objectionable content can be reduced as follows:
(i) Specify in terms and conditions of website use:
* the business is authorised to remove the uploaded files, content or works without permission;
* the business is not responsible for determining content uploaded to the website;
* people posting material to the site must indemnify the business for any loss arising from their posting; and
* non-liability to readers for objectionable content.
(ii) Implement procedures to remove infringing material upon notification and consider implementing an audit policy to review and remove infringing material.
(d) A business may be liable to its customers for breach of contract where actions taken to comply with the legislation go further than what is required. For example, a business becomes aware that content may breach the legislation and removes it. On closer inspection only some of the content is objectionable. The customer may then sue the business for failure to provide services under the contract.
Other relevant Articles on this site:
Other ISP liability
Terms and conditions of website
Other relevant Fact Sheets:
Jurisdiction
Online Content Regulation
End Notes
1. Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Victoria) section 57
2. See definition of Internet Content in Broadcasting Services Act 1992 (Cth) Schedule 5, clause 3
3. Broadcasting Services Act 1992 (Cth) Schedule 5, clause 3
4. Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Victoria)
5. Broadcasting Services Act 1992 (Cth) Schedule 5, clause 91
6. Full text of codes at http://www.iia.net.au/index2.html