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The Regulation of Obscene Material on On-Line Information Services
SUBMISSION
by Roger Clarke, Chair, Economic, Legal and Social
Implications Committee of the Australian Computer Society

29 August 1995

SUMMARY

I understand the proposal to be for a regulatory regime affecting networks of all kinds, in relation to obscene materials. The mechanism is to be self-regulation by the industry (through a code of practice, a complaints procedure and an education program), with a formal control (comprising criminal offence provisions, to which a defence will be 'compliance with the code of practice').

I draw attention to the substantial amount of material already made available by myself and others to the two Departments and the Senate Select Committee on Community Standards. I understand that the information we have provided is cumulative, and that the process has been one of convergence towards a common position. This understanding is particularly important in view of the impending change in organisational responsibility for the matter, and in staff dealing with it.

I draw attention in the body of this submission to a number of areas of concern to the electronic community.

The largest single concern relates to the scope of the 'censorship' being imposed. The terms 'offensive', 'objectionable' and 'restricted' are all used at various points in the document. This has caused some people to infer that the government proposes to intrude to a considerable extent on free expression and on open public access to documents.

I have intentionally used the word 'obscene' in this submission. My understanding has been that the only material which is to be subject to the offence provisions is that which would be obscene under current laws relating to other media such as magazines and videos. It is critical that the proposal be limited to this class of material, and that it be clearly communicated to the public as relating only to these extreme kinds of material, and not to materials which would be considered by many people to be tasteless, but which are not generally regarded as obscene.

Subject to these concerns being satisfactorily addressed, I believe that the approach the government is proposing to adopt is a sensible application of mixed-market-economy principles. The key features are that it is firm-but-flexible, will not enshrine technical definitions within legislation and thereby create more problems in the future than it solves at present, and places a clear onus on industry associations to address the issue.

Roger Clarke

29 August 1995

BODY OF THE SUBMISSION

1. Background

During the last two years, I (in common with several other people) have made a succession of submissions on this matter to, and held a succession of discussions with, the Attorney-General's Department and the Department of Communications and the Arts, and provided a presentation to the Senate Select Committee on Community Standards. I have written this document on the presumption that the reader is familiar with those previous documents.

The document comprises discussions of matters of concern arising from the Consultation Paper dated 7 July 1995.

2. The Scope of the Regulated Material

Many different terms are used in the document to describe the material to be subjected to regulation, including:

• 'offensive' (e.g. Introduction, page 2, line 1, Background, page 5, at (c), Scope, page 9, 2nd para.);
• 'harmful' (e.g. Introduction, page 2, 2nd bullet);
• 'unsuitable' (e.g. Introduction, page 2, 2nd bullet, Proposed Strategy, page 6, 2nd bullet, Proposed Strategy, page 7, 5th para.);
• 'contentious' (e.g. Introduction, page 3, 2nd para.);
• 'material corresponding to' the 'refused classification' and 'restricted classification' (e.g. Background, page 4, 2nd bullet, Proposed Strategy, page 6, middle para.);
• 'material likely to harm or disturb [minors]' (e.g. Background, page 5, at (b));
• 'depictions that condone or incite violence, particularly secual violence' (e.g. Background, page 5, at (d)(i));
• 'the portrayal of persons in a demeaning manner' (e.g. Background, page 5, at (d)(ii));
• 'child pornography' (e.g. Background, page 5, 2nd last para.);
• 'objectionable' (e.g. Proposed Strategy, page 6, 3rd last para., Proposed Strategy, page 7, 2nd last para., Scope, pages 7-8 generally, Offences);
• 'restricted' (e.g. Scope, page 8, 3rd last para., Offences);
• 'inappropriate' (e.g. Proposed Strategy, page 8, 3rd bullet);

There is also explicit reference to the existing censorship laws (Introduction, page 2, second para., and page 5) and 'existing classification systems' (e.g. Introduction, page 3, 3rd para.); although these are not clearly explained.

My understanding is that the object of concern is what the public calls 'obscene' materials, and I urge that this be the term used.

In any case, the definition of 'objectionable' used in the draft legislation on page 15 needs attention due to an apparent mis-typing at the end of the first line of (ii), and the apparently very different degree of (iv) compared with (i)-(iii).

The definition of 'restricted material' on page 15 also requires attention. Sub-clause (i) should be simply deleted, because it implies a serious degree of government intervention, and is open to wide interpretation; whereas (ii) embodies some guidance as to how the definition should be interpreted.

It is critical that the scope of regulated material be expressly discussed, the intent explained, and the number of adjectives reduced. This would significantly lower the current public confusion about the extent to which censorship is justified.

3. The Scope of the Regulated Persons

There are benefits in using a meaningful but not unduly specific term, i.e. 'on-line information service' rather than 'bulletin board system'. However there remain problems:

• the primary term used in the document is 'on-line information service', but the slightly different term 'on-line computer-based information service' is used on several occasions;
• the definition of 'on-line information service' is highly inclusive. It probably encompasses bulletin boards, ftp sites, web-servers, and electronically-accessible databases of all kinds made available on both a commercial and a community-service basis; and possibly even includes email, EDI, CALS, chat, video-phone, video-conferences, remote login, CD-I, electronic shopping and video-on-demand. It might also apply to electronically-accessible databases which are used only within a corporation or agency, although I gather that this may be subject to some constitutional limitations.
• the term 'bi-directional transfer of files and messages' is not in common usage in the information technology industry, and is subject to a variety of possible interpretations. Would it be feasible to couch the definition in terms of the provision of 'documents in electronic form'?
• as a result of these factors, it is unclear just what services are and are not to be regulated. It is essential that the scope be clarified before any legislation to brought before Parliament.

4. The Process of Formation of the Code of Practice

The Proposed Strategy on page 6 and the detail on page 9, 1st para. contain a rendition of the proposal different from that which I understood from prior discussions. The statement is that the code of practice is to be "developed / determined in consultation with the industry and the community" (the two instances differ). I understood that it is to be "developed by the industry, in consultation with the government and the broader community".

If it is to be genuine self-regulation, and companies operating in the industry are to be genuinely committed to it, then the industry must be the driver, but subject to a real need to consult with relevant representatives of government and multiple representatives of the broader community.

In addition, it is important to acknowledge that the differences in perspective inherent within a free society are such that it will not be possible to entirely satisfy the wishes of all parties, and at any point in time the code will have to embody compromise judgements, and practicable mechanisms and solutions.

5. Reversal of the Onus of Proof

The offences are phrased in such a manner that the onus of proof is placed not on the prosecutor to prove that the defendant was not in compliance with the code of conduct, but rather on the defendant to prove that he/she was.

This is a dangerous and inappropriate change in the approach to criminal law, and should be reverted to the norm. This can be most readily achieved by adopting a formulation in the draft Section 2 such as "must not have 'obscene' material on an on-line service under his or her control ..." "unless the defendant complied with an industry code of practice ...".

6. Compliance with the Code of Practice a Sufficient Defence

There is a loose expression on page 7 which causes concern (2nd last para.). Rather than compliance with a code of practice merely being one step to achieve safety from prosecution, it is essential that compliance with the code of practice be a sufficient condition to protect against prosecution (and not just conviction) under draft Sections 2 and 5. This is consistent with the subsequent discussion on page 8, and the use of the word "or" in the draft Sections 2 and 5.

An additional expression which causes concern is that "there is no intention to prosecute operators who ... conduct their systems ... with reference to the code of practice" (page 12, 1st para.). The statement should be that there is no possibility of prosecution of persons whose operations are so compliant.

The requirements relating to restricted material (draft Sections 3-5) are highly onerous, and essentially impractical, because it will probably never be possible to verify age over the net. It is therefore especially important that Section 5(2)(b) provide effective protection from prosecution in the event of compliance with a code of practice.

7. Control over 'Obscene' Material

For those service providers who act as publishers, a requirement that they exercise control over 'obscene' material is reasonable. But for those many providers who simply rent out storage space, and do not take responsibility for content, it is not reasonable to impose such a requirement. The mention of "random checks of material available through [a defendant's] information service" (page 12, 2nd para.), and the phrase "objectionable material on an on-line service under his or her control" in the draft Section 2 appear to conflict with that principle.

Renters of space should not be forced to inspect materials stored in that space unless reasonable grounds for suspicion arise that the space is being used to store 'obscene' material. Their contract with the storer needs to empower them to, under such circumstances, inspect the materials in question and require that they be removed or amended in the event that they infringe.

8. The Interplay Between Information Technology and Social Patterns

Consideration should be given to the question as to whether the current round of information technologies is in the process of influencing social norms, and hence the existing classification scheme for 'obscene' materials should be re-considered.

The new media's greater immediacy, quality and interactivity may be heightening concerns about 'obscene' materials (or even 'offensive' materials more generally), in which case the public might seek a more restrictive regulatory regime. Most members of contemporary electronic communities, however, would be likely to judge tighter controls as futile, and damaging, both socially and economically.

On the other hand, the new media might be in the process of encouraging a more permissive view to predominate, i.e. 'the images can't be avoided, so work harder to educate people, especially the young, co cope with them'.

9. Occasional Lapses into Paternalism

There are a few points at which the Consultation Paper appears to adopt a perspective inconsistent with the self-determination which Australians expect to be able to exercise:

• it is not the role of Parliament, nor of government agencies exercising Parliament's authority, to make judgements on matters of taste. Only those materials which are repulsive to a preponderant majority of the public are proper subject-matter for censorship (and even then the existence of offending materials needs to remain public knowledge);
• on page 5 at (b), the principle that "minors should be protected from material likely to harm or disturb them" is phrased in a manner consistent with decision-making by the State on behalf of its subjects. A much more appropriate phrasing of the principle would be "mechanisms should be devised such that carers for minors (such as parents and teachers) should be able to implement such forms and levels of protection from offensive materials as they judge to be appropriate";
• on page 5 at (c), it is illogical to protect "everyone" from "exposure to unsolicited material that they find offensive". For a person to find something offensive, that person has to have first been exposed to it;
• on page 7, the possibility is floated of an accreditation scheme, to assist schools and parents in selecting service providers. Given the dynamic nature of the services, and the contentious nature of accreeditation, it would be at best premature to establish such procedures;
• there is also some misunderstanding of the role of the EdNA initiative (page 7, 5th para). This has been conceived as not just a service for K-6, or even K-12, but as a comprehensive primary, secondary and post-secondary service. There are therefore distinctly different levels of protection which will need to be implemented within EdNA.

Roger Clarke

29 August 1995

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