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© Committee of Australian University Directors of I.T., 1996, 1997
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Issues covered:
The ABA's issues paper discussed the possibility of developing a peak representative body for on-line services which comprised representatives of the on-line community. There are a number of advantages which may flow from developing a peak representative body. It may act as a focus for the interests of industry members, manage industry-wide relations with government and the community, and develop, implement and manage codes of practice. The issues paper invited comment on the development of a representative on-line industry body and the holding of a national forum, whether at the initiative of the ABA or otherwise.
The ABA also consulted widely with various participants in the on-line services environment, including on-line service providers, content providers, educational bodies and users to assess their views about the appropriateness of developing a peak industry body.
A significant number of the submissions to the issues paper which addressed this issue were in favour of the development of a peak representative body. Many submitters suggested that such a body should include representatives from all stakeholders including content providers, service providers, users, infrastructure providers, along with consumer associations, educational bodies and libraries. The Office for the Status of Women suggested that any representative industry body should aim to be comprised of at least 35 per cent women (sub. 55)
Many of the submitters who supported the development of a peak representative bodies expressed a desire to participate in such a body.
The Centre for Research in Textual and Cultural Studies at the University of Wollongong, which researches the contribution by new communications to social change in Australia and internationally, stressed that it was important for a peak industry body to acknowledge that many members of the on-line community are non-commercial:
We recommend that in the event that a body is established to safeguard commercial interests, the interests of non-commercial users in schools, universities, and the home be safeguarded by the establishment of advocacy groups experienced in these specific contexts of Internet Use (sub. 148 ).
However, many who supported the idea of a peak representative body questioned whether it would in fact be possible to develop one body which could properly represent the diverse and often disparate segments of the on-line services environment. As the Censorship Office of Western Australia stated:
Experience with the 'on-line industry' suggests that it is composed of many independently minded individuals to whom the concept of a single governing body is an anathema (sub. 45 ).
Others stressed the need to ensure that any peak representative body was truly representative of the on-line environment and that government should not artificially create an entity which did not have grass roots support.
Those submitters who opposed the development of a key industry body generally did so on the basis that the matter should be left to the industry and not a government instrumentality. For example, Ms Irene Graham, an Internet user, stated:
This is not a role for the ABA nor the Government. If the industry wished to organise a representative body, let it do so. As the ABA acknowledges, there are already bodies representing sections of this emerging industry. In due course, a peak body will undoubtedly eventuate without government intervention. Australian taxpayers should not have to fund the development and the government in its apparent haste to regulate this emerging industry should not attempt to force the industry to also act in haste (sub. 132 ).
The PC Users Group said:
In our opinion, suitable representative bodies will evolve as the Australian on-line community evolves. Government will be involved as a matter of course, and properly so because Government is a part of the on-line community. However, we feel it is too early to be forcing particular arrangements at this stage (sub. 151 ).
Hunt and Hunt, Lawyers said:
We are aware that there are several entities already in existence, including the Internet Industry Association of Australia, the Electronic Messaging Forum and others. Given the rapid change in the on-line services industry and the differing activities of participants in these groups, we do not consider it appropriate for a national body to be imposed, but prefer the option of letting one or more of these emerge as the constituent voice of the industry. One method of doing so would be to take up the ABA's initiative of a national forum (sub. 86 ).
Significant support was expressed by submitters for the holding of a national forum to establish a consultative framework for the discussion of regulatory issues affecting on-line services.
The Australian Computer Society stated:
The ACS supports the ABA's proposal for a national forum to identify stakeholders and to bring them together to discuss the issues arising in the on-line environment. A key goal of such a forum would be the establishment of an effective consultative framework for industry participants and the public (sub. 142 ).
The ABA acknowledges that, whilst there are some similarities, the on-line environment is fundamentally different in structure to existing information and entertainment industries. Hence clearly defined and centralised industry associations along the lines of those that represent traditional broadcasting and computing industries are less likely.
Nevertheless organisations and associations may still represent the interests of particular types of on-line participants. Indeed a number of established organisations have expressed an intention to represent the interests of sections or types of participants in the on-line services industry and several new associations have also been recently formed. A list of some of these associations can be found in appendix 4. A number of these groups made submissions to the issues paper and/or met with the ABA staff during the course of the investigation.
The ABA also notes that to date most of these organisations and associations have indicated a desire to co-operate with each other in establishing a co-ordinated approach in dealing with government on matters which affect the on-line services community. The ABA supports and encourages this approach.
The ABA is of the view that, as a long term strategy, these organisations and associations could productively work together to form a co-ordinated body or council of on-line associations. This body could provide an effective consultative framework for the on-line community.
It could assist in the development and management of codes of practice for on-line services pursuant to a substantially self-regulatory regime and might also perform an important role in liaising and advising government and the community generally with respect to on-line services.
[14] Members of the on-line services community be encouraged to develop associations which represent their interests.
[15] These associations liaise with and advise government on on-line issues generally and assist in any national co-ordinated educational strategy.
[16] Associations representing the various participants in the on-line services environment be encouraged to form a fully representative coalition or council which would provide an effective consultative framework for the whole on-line services community in Australia.
The ABA recommends the development of a substantially self-regulatory regime for on-line services in Australia. The main elements which might be included in the framework for developing comprehensive codes of practice for service providers are:
This framework could be based on broadcasting codes of practice where Parliament has identified a number of matters which may be covered by codes of practice for each particular industry sector. Although it is not compulsory for each matter to be included in any code, the matters listed in section 123(2) of the Broadcasting Services Act provide a guide to the broadcasting industry as to the types of matters which might appropriately be addressed in codes of practice for each sector. In a similar way codes could be developed to address the specific nature of on-line services.
In recommending this model the ABA stresses that it is not asserting that on-line services are the same as broadcasting services and acknowledges the very different nature of the relationships which exist in the on-line environment. With respect to content issues, the ABA also recognises that in most cases service providers will have no knowledge of the material which is accessible through their service unless it is specifically brought to their attention.
There is a wide range of matters which might be addressed in codes of practice for service providers. These include any practical steps which may be taken in relation to Objectionable material, standards of service, billing and credit management issues, methods of ensuring appropriate levels of privacy on-line, the provision of information relevant to users of the services and complaints handling procedures.
Codes of practice which have been developed to date by various industry associations vary enormously in terms of the topics covered and the responsibilities imposed on service providers.
The ABA's issues paper identified a number of matters which might be included in codes of practice to address community concerns and invited comments about these matters. There was considerable support for the list of matters which the ABA identified in the issues paper, with many submitters endorsing the list as a whole. However some submitters expressed reservations about particular issues.
The following is a discussion of the matters which the ABA has identified as being appropriate for inclusion in a code of practice for service providers and the discussion of the views of those submitters who addressed these issues. The ABA notes that a number of these matters might be incorporated in the terms of any contract entered into between service providers, users and content providers.
As discussed in chapter 5 of this report, the ABA takes the view that service providers should consider limiting accounts to subscribers who are 18 years or older. If account holders must be over the age of 18 years then the responsibility for children's use of on-line services will devolve to parents and other supervisors of adult status.
The ABA understands that the criminal offence provisions being canvassed by the State and Territory Governments make it an offence for a service provider to make available material which is Unsuitable for minors to a person under the age of 18. The adoption of procedures to verify that the holder of an account is an adult might be a relevant factor in considering defences to such a provision.
As noted in chapter 5, were a code to adopt age verification procedures this should not impose on service providers an obligation to guarantee that potential account holders were of the appropriate age. However, service providers may be able to adopt reasonable steps which aim to limit the holding of an account to a person who is over the age of 18 years. If a service provider can show that it had followed these practices then a service provider should not be in breach of the code if it transpired that the person who obtained the account was under the age of 18.
Appropriate exemptions might be introduced where the service being offered was a closed network with controls to guarantee the suitability of material for minors. Exemptions for other institutions such as schools and universities would also be appropriate.
The ABA's issues paper included the results of the OFLC's informal search of on-line material. The search found that approximately ninety per cent of the category 1 and category 2 level listings on the World Wide Web had some on-screen warnings of content and an age recommendation, varying between 18 and 21 years. The search found that no specific warning accompanied the site addresses in Usenet newsgroups but the names of the addresses themselves often gave an indication of the content of the site, e.g. alt.binaries.bondage.
A number of submitters commented positively on the use of warnings in relation to adult material located in the on-line environment.
The code of practice for content providers developed by the University of Sydney includes a provision that content providers should not publish material:
in such a manner that it could be accessed unwittingly without a warning being provided as to the nature of the material ... [content providers] should use the National Classification Code for Publications as developed by the Office of Film and Literature Classification (OFLC) for guidance when assessing the need for ... material to carry warnings (sub. 46 ).
A copy of the OFLC National Classification Code was also provided in the code.
Telstra also supported the promotion of warnings on material which might be Unsuitable for minors and considered its application to controlled environments and content providers, as well as to material which is sourced overseas:
Telstra supports the concept of displaying warnings where this can be applied practically to material that is controlled (pre-screened) by an Australian access provider before it is made available from a server site. However, the onus should be on the content provider where ever possible and the primary responsibility for the classification of material rests with the publisher, rather than the network operator or access provider. There are practical limitations on the effectiveness of any classification system which can be applied to material which is sourced overseas and where information transfers are immediate (sub. 150 ).
The ABA is of the view that codes of practice for service providers should address methods of encouraging content providers to display appropriate warnings on material which may be Unsuitable for children.
One way in which service providers could encourage the use of warnings in on-line material is by encouraging the use of warnings in any contract between service providers, users and content providers.
Proposals for a labelling scheme for on-line material, using the PICS platform is discussed in detail in chapter 9.
The ABA is of the view that information about how these schemes work and how they might be used by content providers should be addressed in codes of practice for on-line service providers.
As with warnings, one way in which service providers might encourage content providers to label material in accordance with accepted ratings systems is addressing the issue in the terms and conditions of any contract between service providers, users and content providers.
The issues paper acknowledged that service providers will often have no knowledge of the material which is accessible through their service unless it is specifically brought to their attention. Many submitters nevertheless sought to stress this fact in their responses to the issues paper.
Criminal offence provisions which have either been introduced or proposed, including the draft offence provisions developed by the NSW Parliamentary Counsel at the request of the Censorship Ministers, include criminal offences in relation to Objectionable material. In all Australian jurisdictions in any form the possession of child pornography is a criminal offence.
The draft offence provisions proposed by the NSW Parliamentary Counsel include compliance with a code of practice among the defences available to service providers. The ABA takes the view that the identification of any practical and workable steps which service providers could take if and when they are made aware of the availability of this material through their server should be included in codes of practice registered by the ABA. It is not desirable that these defences be developed under separate codes relating only to the offence provisions.
In developing this aspect of the codes it will be critical to consult closely with industry on the practicality of any steps which may be required for service providers to be availed of the defence. It will be necessary to take into account that Objectionable material may be sourced from any location in the network. For example, it may be located on an identifiable Australian server, on an identifiable overseas server, or on an unidentified source.
It will also be important to recognise that it is only when a service provider is aware of the existence of this material that attempts can be made to deal with it.
If practical steps can be taken in relation to the material then a code may require that this occur within a reasonable and specified time of a service provider being given notice by either a user or an independent complaints handling body. However, it must be recognised that in some cases there may be limited measures which service providers can take in relation to Objectionable material.
The filter software products which are currently available and developments with labelling and selection software, including the PICS system, are discussed in chapter 9. Also discussed in that chapter is the role that service providers might play in providing information about these products.
Many of the submissions indicated strong support for these forms of technology to address some of the concerns about access by minors to inappropriate material. Submitters also recognised the role which service providers could play in encouraging the use of these products. For example, the Australian Consumers' Association stated:
OAPs [on-line access providers] also have a central role in supplying information on and/or access to any products or on-line services which are available for those consumers who wish to restrict access to material which they consider unsuitable (sub. 178 ).
The South Australian Independent Schools Board (ISB) also supported such a role for service providers:
The ISB is supportive of all of the matters which the ABA believes should be addressed in a code of practice. It believes the provision of information to content providers on legislation, the provision of information to users on filter software and methods of classifying material are seen as particularly important (sub. 30 ).
To enable parents and guardians to be fully informed about their options in relation to filter software products the ABA is of the view that codes of practice for service providers should provide information about the availability of filter products and services to their customers.
The ABA recognises that one of the compelling features of on-line services is that it provides the opportunity for many individuals to communicate and to make content available to others in a way which has not been previously possible. Traditional media outlets have long been accustomed to receiving legal advice in relation to the publication of content and in many cases have trained staff who are familiar with the law's various requirements.
In contrast, many participants in the on-line community do not have the same level of knowledge of the laws which may apply in the on-line environment, nor the resources necessary to obtain legal advice in relation to content which they may wish to make available.
Telstra acknowledged the important educative role which codes of practice might play in the on-line environment:
Codes of Practice could usefully play an educative role in informing Australian and international users about the community values Australia places on public information (sub. 150 ).
The Australian Broadcasting Corporation (ABC) also acknowledged the role which codes of practice may play in promoting awareness of laws which apply on-line:
Many issues or practices which might be addressed in codes of practice are already subject to the general law but could be clarified in codes of practice as a statement of principles (sub. 184 ).
Similarly, Optus Vision noted that:
Provision of information to content providers on legislation which may be relevant in an on-line environment is an important goal (sub. 185 ).
The Australian Consumers' Association (ACA) also stated that:
Information on legislation which may be relevant in an on-line environment should be available in an accessible form to anyone who wishes to access it on the Internet. OAP's [on-line access providers] should be required to draw the attention of all clients to this site as part of any code of practice. .... Where OAPs have offered an individual or organisation an opportunity to act as a content provider (CP) they should be responsible for ensuring that the CP is aware of the provisions and penalties of both the law and the relevant industry code (sub. 178 ).
The ABA is of the view that the provision of information about the laws which may apply on-line should be appropriately included in codes of practice for service providers.
It will be important to make clear that that the mere provision of such information in codes of practice would not render a service provider liable for any breach of civil or criminal law for which it would not otherwise be liable.
A number of submitters recognised that issues of billing, support services, privacy and credit management will need to be appropriately addressed in codes of practice if the Australian public are to use on-line services to their full potential.
Discussions between the ABA and a number of service providers during the course of the investigation indicated that some service providers receive complaints about billing, speed of access, service difficulties, credit management issues and the method and speed with which complaints are dealt with.
The ACA submitted that matters relating to technical and service support, and information about service charges, are key consumer issues for an industry code of practice (sub. 178). The ACA also considered quality of service assurances and mechanisms for dealing with service difficulties to be important considerations for a code.
Many submitters raised the issue of privacy and the security of personal data and expressed the view that these matters should be addressed in the on-line environment. The ACA described privacy protection as 'an issue of paramount importance'.
The Federal Privacy Commissioner stressed a number of issues in relation to this matter:
There should be a requirement for on-line service providers to provide secure communications channels and to ensure individuals are aware of the extent to which their communications will be public or accessible to other users (sub. 153 ).
The Federal Privacy Commissioner also submitted that a code of practice should address the storage and security of information collected on-line:
The code should deal with the collection of personal information by on-line service providers which is necessary to provide the service. It should include requirements about notifying individuals of the purpose of collection and any likely disclosures of the information (e.g. to other participants in the provision of the service, e.g. content providers, and other users). The code should set standards for the storage and security of information about people's use of on-line services. It should provide mechanisms for people to have access to their own personal information and to challenge it, should they wish. Disclosure of personal information should be addressed. People should be in a position to know what the data transfer or exchange implications are when they sign up for a service. Their personal details should be prevented from being passed on to others in the chain unless they have expressly agreed that this may happen, or they were notified this was a usual disclosure at the time of applying for the service and were given an opportunity not to have their information so disclosed (sub. 153 ).
The Federal Privacy Commissioner also pointed out that service providers may qualify as credit providers in some circumstances and may be subject to obligations under the Privacy Act:
The Code could also make reference to the fact that there are privacy rules under Part IIIA of the Privacy Act 1988, concerning credit reporting. These rules apply to credit providers' as defined, and credit reporting agencies. On-line service providers may be credit providers for the purposes of the Act, in which case they would need to comply with the relevant requirements of the Act (sub. 153 ).
The ABC noted that billing and credit management issues may affect content providers as well as service providers and that codes of practice would need to address their different roles:
Industry codes of practice should clearly distinguish between the different responsibilities of the various categories of participants and the codes applicable to each category. One area where functions may be indistinct is that of billing and credit management. Access providers would seem to be primarily responsible for billing and credit arrangement with consumers, however, content providers may also sell subscriptions or goods on-line. In these cases, it is likely that content providers will have arrangements in place for access providers or some similar agent to carry out the functions of billing and credit management. This should also be taken into consideration in codes of practice so that the obligations of, and codes applicable to each category of provider are clearly set out (sub. 184 ).
The ABA is of the view that appropriate methods of dealing with customers including billing, support services, privacy and credit management are matters which could be addressed in codes of practice for service providers.
The ABA considers that users with particular requirements for privacy should be able to obtain advice from their service providers on the use of encryption and the availability of suitable products to render messages unreadable by unauthorised persons.
However, any codes should make it clear that responsibility for the security of content transmitted via on-line services rests with content providers and users.
If appropriate practices and safeguards are introduced for these matters then Australians will be encouraged to pursue the benefits offered by on-line services with greater confidence. The adoption of these consumer safeguards may also make the services offered by Australian service providers more attractive in the international marketplace.
Most submitters agreed that a complaint handling process should be adopted for on-line services. A more detailed discussion of this can be found in chapter 8.
If a complaints handling regime is introduced it is appropriate that details about the way the regime operates should be widely publicised. This would include information on how to lodge a complaint and any appeal processes.
Authentication has been defined as:
Ensuring that a message is genuine, has arrived exactly as it was sent and came from the stated source (Davies & Price 1984).
A number of submissions raised authentication of content or source of material as an important matter which needed to be addressed in the on-line environment. Appropriate authentication procedures can be used to verify that a message or other information received has been sent by the person or organisation named and that the content has not been altered.
In the context of authentication of content, the NSW Department of School Education said:
The nature of current on-line technologies allows for easy modification and re-distribution of material. Many consumers - especially those involved in education - are concerned about the quality and validity of the material available on-line. More rigid authentication of content would increase the consumer's confidence in on-line services as an important educational tool ... and reduce the potential for breach of copyright (sub. 169 ).
Authentication procedures also form an essential component of electronic commerce.
The ABA is of the view that the codes of practice for service providers might include notifying customers that the sources and content of messages and other items could possibly be manipulated before receipt. Customers with particular security needs could be advised to implement systems to check the authenticity of the information they receive. This advice could extend to drawing such customers' attention to specialist products and services that can be used in co-operation with the relevant content providers to automatically carry out the required authentication procedures.
However, the ABA believes it should be made clear in any code that responsibility for the authenticity of content transmitted via on-line services rests with content providers and users.
During the course of the investigation many members of the on-line community stressed the importance of 'netiquette' in promoting effective communication on-line. Netiquette can be described as a commonly accepted set of rules which the on-line community has adopted to govern communications, particularly in relation to newsgroups. Many users gave examples of how the principles of netiquette have been used to chastise or even discipline recalcitrant participants.
New users of on-line services may know little about the practices adopted by the on-line environment and particularly about netiquette. The issues paper included the provision of information on netiquette as one of the matters which might be included in a code of practice and invited submissions on this matter.
A number of submitters, including the Australian Consumers' Association, supported the inclusion of information on the principles of netiquette in a code of practice. Mr Greg Lewis (an Internet user) submitted that the suggestion was an 'excellent idea' and stated that 'A quick look at the decrease in "signal" to "noise" ratio on Usenet over the past year will indicate the advantages of making such information available'. (sub. 144)
Others, such as the Australian Broadcasting Corporation, agreed that information on netiquette should be made available to users but argued that it should not be in codes of practice:
Information on the principles of 'netiquette' should be supplied to users by access providers as part of a connection package. As Internet netiquette is continually evolving and being modified it would be impractical to include it in codes of practice (sub. 184 ).
The ABA acknowledges that principles of netiquette play a very important role in promoting effective communication in the on-line environment and recommends that service providers make available to account holders information about these principles.
However, it is the ABA's view that the principles of netiquette do not address community concerns to the extent that they should be included in codes of practice. Further, the evolving nature of netiquette might render it inappropriate for inclusion in a code of practice.
The Consultation Paper on the Regulation of On-Line Information Services, jointly published in 1995 by the Attorney-General's Department and the Department of Communications and the Arts, discussed the role of codes of practice in relation to a criminal offence regime:
To provide an incentive for self-regulation, the proposed offence provisions will recognise adherence to an approved code of practice as evidence that a person has taken all reasonable steps to control the existence or transmission of objectionable material. This will encourage on-line information service providers, and their representative bodies, to develop and implement appropriate procedures under a code of practice (p.6 ).
As discussed in chapter 3, the ABA is aware that the various Australian State and Territory governments have either introduced or are proposing to introduce criminal offence provisions in relation to on-line services, in accordance with the approach taken in the consultation paper.
In respect of the proposed criminal offence provisions, the ABA is of the view that the steps which a service provider might take to ensure the availability of a defence under the proposed provisions should be given priority in the development of codes of practice.
It will be critical that appropriate consultation with industry on the practicality of any such steps be undertaken. In this way compliance is more likely to be achieved.
Codes would not be registered by the ABA unless they spelt out the actions which would need to be taken in order to constitute a defence to prosecutions.
The ABA is of the view that those aspects of the codes which should constitute a defence could be developed by the time the model provisions come into effect.
A breach of a code would not itself be an offence. However, a breach of a relevant clause of a code might deprive a service provider of one of the defences available to them.
In this way the codes registered by the ABA could operate as part of a co-ordinated regulatory and enforcement strategy applicable to the on-line industry.
The ABA believes that in an emerging on-line environment it is appropriate to develop a self-regulatory framework which encourages the development of and compliance with codes of practice rather than a mandatory statutory regime which provides penalties for non-compliance.
The requirement that codes be registered with the ABA would provide an incentive for service providers to develop codes of practice which addressed community concerns. Registration is intended to encourage the development of responsible and appropriate codes and to enable service providers or industry associations who have developed a code of practice to implement it with confidence that it complies with appropriate standards.
Service providers who complied with registered codes of practice would be entitled to market their commitment to the matters addressed by the code to consumers.
Codes of practice would be registered with the ABA if it was satisfied that a code had:
The matters which the ABA has identified above as being appropriate to be included in codes of practice for service providers indicate the types of community safeguards that would need to be addressed in a code in order for it to be registered by the ABA.
It is important for service providers to obtain the support of the community, including the on-line community, in the development and registration of any code of practice. If a code of practice has been developed in a manner which has given the community an adequate opportunity to comment on it the ABA may register the code.
It would be appropriate to use the Internet as part of the strategy for generating discussion and obtaining input from the users of on-line services, who may be located in Australia or overseas, in order to gain support for a code.
It is envisaged that codes of practice will be developed in the main by industry associations whose members include service providers. These associations may require compliance with the association's code of practice as a term of membership.
As stated in the previous chapter, while it would be desirable for Australian service providers to agree on one code it is likely that several equally acceptable codes may emerge. Therefore, while the ABA hopes that a co-operative approach to the development of codes avoids unnecessary duplication, the ABA recommends that registration should be available to any code which adequately addresses all or most of the matters identified as being appropriate for inclusion in the codes.
Over time a system of accreditation might be developed by the on-line services industry based on compliance with registered codes of practice.
The ABA is recommending the development and registration of codes of practice for service providers because such a regime offers an acceptable balance between the imposition of standards on the one hand and the complete absence of any form of regulation on the other.
But on-line services are part of a rapidly evolving environment which has and will continue to undergo major changes in terms of the services which it offers and the technological framework in which they are offered.
Accordingly it will be necessary to monitor the proposed regulatory regime to ensure that the framework is and remains effective and appropriate to the on-line services environment.
There are a number of methods by which the effectiveness of the regulatory regime can be monitored. These include the collection by an independent government agency of quarterly, bi-annual or annual records of:
An understanding of the extent to which codes of practice are an effective form of regulation for on-line services can also be enhanced by undertaking appropriate research amongst the on-line community, including users.
[17] A substantially self-regulatory regime for on-line service providers in Australia be developed which:
[18] The ABA not register a code unless that code clearly details the conduct required which could constitute a defence to an offence of the kind proposed by the Censorship Ministers' model offence provisions.
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Created: 26 October 1996, Last Amended: 3 April 1997