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1999
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
THE
SENATE
BROADCASTING SERVICES
AMENDMENT
(ONLINE SERVICES) BILL
1999
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be moved on behalf of the
Government
(Circulated by authority of
Senator the Hon. Richard Alston, Minister for Communications, Information
Technology and the Arts)
ISBN: 0642 400547
BROADCASTING SERVICES AMENDMENT
(ONLINE SERVICES) BILL 1999
OUTLINE
The Broadcasting Services Amendment (Online Services) Bill 1999 (the
Bill) amends the Broadcasting Services Act 1992 (BSA) to provide for the
regulation of online services. Schedule 2 to the Bill makes a consequential
amendment to the Crimes Act 1914.
The proposed Government
Amendments make amendments to the Bill to address issues that have arisen about
its operation primarily as a result of the recent inquiry of the Senate Select
Committee on Information Technologies.
In particular, the proposed
Government Amendments:
• clarify the wording of proposed subsection
4(3) of the BSA, which provides for the manner in which Parliament intends
Internet content hosted in Australia, and Internet carriage services supplied to
end-users in Australia, to be regulated (Amendments (1) to
(4));
• explain the context of the proposed regulation of online
services under the Bill within the proposed Australian scheme for dealing with
content on the Internet (Amendment (5));
• insert a definition of
‘business day’ for the purposes of Amendments (12), (13), (14), (22)
and (23) and ensure that Internet content does not include ordinary electronic
mail (Amendments (6) to (8));
• ensure that an ABA instrument
declaring a specified access-control system to be a restricted access system in
relation to Internet content will be a disallowable instrument, which must
accordingly be notified in the Commonwealth Gazette, tabled in the
Parliament and will be subject to Parliamentary disallowance (Amendment
(9));
• address concerns that the wording of subclause 20(1) of
proposed Schedule 5 to the BSA might imply that an Internet service provider is
in some way responsible for the nature of content available on the Internet
(Amendment (10));
• amend the anti-avoidance provisions in clauses
34, 43 and 44 of proposed Schedule 5 to make it clear that ‘similar
Internet content’ includes identical Internet content (Amendments (11),
(18) and (19));
• extend the time within which an Internet content
host will be required to comply with any interim-take down notice, final
take-down notice or special take-down notice that applies to the host, and the
time within which an Internet service provider will be required to comply with
any access-prevention notice that applies to the provider, from 24 hours to 6 pm
on the next business day (Amendments (12), (13), (14), (22) and
(23));
• put beyond doubt that notices in relation to Internet
content must identify a particular Internet site or part of such a site
(Amendments (15) and (24));
• clarify that technical and commercial
feasibility are particular matters to which regard must be had in determining
whether particular steps are reasonable for the purposes of paragraph 37(1)(c)
and subclause 44(1) of proposed Schedule 5 to the BSA (Amendments (16) and
(20));
• provide that an Internet service provider is not required
to comply with a standard access-prevention notice given under paragraph
37(1)(c), or with a special access-prevention notice given under subclause
44(1), of proposed Schedule 5 to the BSA in relation to a particular end-user if
access by the end-user is subject to a recognised alternative access-prevention
arrangement (Amendments (17) and (21));
• allow an industry code or
an industry standard to exempt an Internet service provider from taking steps to
prevent end-users from accessing prohibited content hosted outside Australia, or
content that is substantially similar to such prohibited content, if access is
subject to an arrangement that is declared by the code or standard to be a
designated alternative access-prevention arrangement (Amendment (25));
and
• ensure that the ABA cannot make an online provider
determination under clause 76 of proposed Schedule 5 to the BSA unless the
determination relates to a matter specified in the regulations (Amendment
(26)).
FINANCIAL IMPACT
STATEMENT
It is expected that the proposed amendments will not have any significant
financial impact on Commonwealth expenditure or revenue.
NOTES ON
AMENDMENTS
AMENDMENTS (1) TO (4)
Amendments (1) to (4) amend proposed subsection 4(3) of the BSA, which
provides for the manner in which Parliament intends Internet content hosted in
Australia, and Internet carriage services supplied to end-users in Australia, to
be regulated.
Proposed subsection 4(3) expresses Parliament’s
intention in terms of Internet content hosted in Australia, and Internet
carriage services supplied to end-users in Australia, being regulated in a
manner that, in the opinion of the ABA:
• enables public interest
considerations (particularly those relating to offensive or unsuitable Internet
content) to be addressed in a way that does not impose unnecessary financial and
administrative burdens on Internet content hosts and Internet service
providers;
• will readily accommodate technological change;
and
• encourage the development of Internet technologies and their
application and the provision of services made practicable by those technologies
to the Australian community.
Amendment (3) is a technical amendment consequential on Amendment (4).
The effect of Amendment (4) is that Parliament’s intention will
include an intention that Internet content hosted in Australia, and Internet
carriage services supplied to end-users in Australia, be regulated in a manner
that encourages the supply of Internet carriage service services at performance
standards that reasonably meet the social, industrial and commercial needs of
the Australian community. An aim of this amendment is to make it clear that the
Government does not intend that the regulation of Internet content should result
in a degradation of network performance to a point where the Internet no longer
meets the needs of the Australian community.
AMENDMENT (5)
Concerns have been raised that the Bill, taken in isolation, creates the
impression that Internet service providers and Internet content hosts are to
bear the prime burden in relation to offensive material rather than those who
create and upload such material.
To address this concern, Amendment (5)
inserts a new explanatory statement at the beginning of proposed Schedule 5 to
the BSA. This statement puts the Bill in the context of a national scheme
already agreed to by the Commonwealth, State and Territory
Attorneys-General.
The first component of the proposed scheme is proposed
Schedule 5 to the BSA contained in the Bill as proposed to be amended. Under
this component, the Commonwealth will be responsible for regulating Internet
content service providers and Internet content hosts. This component does not
impose any obligations on producers of content on the Internet or persons who
upload or access such content.
The second component of the proposed
scheme is proposed uniform State and Territory laws that will create offences
for the publication and transmission of proscribed material by producers of
content on the Internet or persons who upload or access such content. It is
intended under the national scheme that the States and Territories will be
primarily responsible for regulating the activities of persons who create,
upload or access content.
The second component of the proposed scheme
will also include section 85ZE of the Crimes Act 1914 (Cth) as proposed
to be amended by the Bill. Section 85ZE, as proposed to be amended, will
prohibit a person from knowingly or recklessly:
(a) using a carriage
service supplied by a carrier to menace or harass another person;
or
(b) using a carriage service supplied by a carrier (except where that
use is to carry Internet content) in such as way as would be regarded by
reasonable persons as being, in all the circumstances, offensive.
The
third component of the proposed scheme will be a range of non-legislative
initiatives directed towards monitoring content on the Internet and educating
and advising the public about content on the Internet.
One such
initiative is reflected in clause 54 of proposed Schedule 5 to the BSA which
provides for the establishment of a designated body. It is intended that the
designated body will be a community based organisation established to monitor
material, operate a ‘hotline’ to receive complaints about illegal
material and pass this information to the ABA and police authorities, and advise
the public about options such as filtering software that are available to
address concerns about online content.
Another such initiative is
reflected in clause 90 of proposed Schedule 5 to the BSA which sets out the
ABA’s functions for the purposes of proposed Schedule 5 to the BSA. These
functions are additional functions of the ABA for the purposes of section 159 of
the BSA. The ABA’s additional functions under clause 90
are:
• to monitor compliance with industry codes and standards
registered under Part 5 of proposed Schedule 5 to the BSA;
• to
advise and assist parents and responsible adults in relation to the supervision
and control of children’s access to Internet content;
• to
conduct and/or co-ordinate community education programs about Internet content
and Internet carriage services, in consultation with relevant industry and
consumer groups and government agencies;
• to conduct and/or
commission research into issues relating to Internet content and Internet
carriage services;
• to liaise with regulatory and other relevant
bodies overseas about co-operative arrangements for the regulation of the
Internet industry, including (but not limited to) collaborative arrangements to
develop multilateral codes of practice and Internet content labelling
technologies;
• to inform itself and advise the Minister on
technological developments and service trends in the Internet industry.
AMENDMENTS (6) TO (8)
Amendment (6) inserts a definition of the term ‘business day’ as
a consequence of the use of that term in Amendments (12), (13), (14), (22) and
(23).
Amendment (7) amends the definition of ‘Internet
content’ to ensure that it does not include ordinary electronic mail. The
use of the term ‘ordinary electronic mail’ is intended to make it
clear that the exclusion only applies to what an ordinary user of the Internet
would regard as being email, and that the exclusion does not apply to other
forms of postings of material, such as postings to newsgroups. The term is also
intended to minimise the scope for technical arguments about the ‘outer
boundaries’ of the term ‘email’ within the Internet community.
Amendment (8) is intended specifically to make it clear that ordinary electronic
mail will not include a posting to a newsgroup. These amendments are intended
to ensure that personal email is not caught by the definition of ‘Internet
content’.
AMENDMENT (9)
Amendment (9) addresses a concern raised by the Senate Standing Committee for
the Scrutiny of Bills.
Under subclause 3(1) of proposed Schedule 5 to the
BSA, the ABA will be able to declare by written instrument that a specified
access-control system or a class of such system is a restricted access system in
relation to Internet content for the purposes of the Schedule. A declaration
under subclause 3(1) will have effect accordingly.
An example of the use
of the term ‘restricted access system’ is clause 8 of proposed
Schedule 5 to the BSA.
In making an instrument under subclause 3(1), the
ABA will be required to have regard to the objective of protecting children from
exposure to Internet content that is unsuitable for children as well as other
relevant matters such as those dealt with in the sections 3 and 4 of the BSA as
proposed to be amended (which deal with the objects and regulatory policy of the
BSA) (subclause 3(2)).
Subclause 3(3) states that a copy of any such
instrument must be tabled in Parliament within 15 sitting days after the date on
which the instrument was made. The Senate Standing Committee for the Scrutiny
of Bills, in Alert Digest No. 7 of 1999, has noted that no provision seems to
have been made for the disallowance of such an instrument.
To address
the Committee’s concern, Amendment (9) provides that such an instrument
will be a disallowable instrument. Accordingly, the instrument will be required
to be notified in the Commonwealth Gazette, tabled in the Parliament and
will be subject to Parliamentary disallowance.
AMENDMENT (10)
Subclause 20(1) of proposed Schedule 5 to the BSA provides that if a person
has reason to believe that an Internet service provider is supplying an Internet
carriage service that enables end-users to access prohibited content or
potential prohibited content, the person will be able to make a complaint to the
ABA about the matter.
Concern has been expressed that the wording of
subclause 20(1) can be read as implying that an Internet service provider is in
some way responsible for the nature of content available on the Internet.
To address this concern, Amendment (10) replaces subclause 20(1) and
its heading by a new subclause 20(1) and a new heading. The new subclause omits
the reference to an Internet service provider. It provides that if a person has
reason to believe that end-users in Australia can access prohibited content or
potential prohibited content (as defined in clauses 8 and 9 of proposed Schedule
5 to the BSA) using an Internet carriage service, the person may make a
complaint to the ABA about the matter.
AMENDMENT (11)
Amendment (11) amends the anti-avoidance provision in clause 34 of
proposed Schedule 5 to make it clear that ‘similar Internet content’
includes identical Internet content. This will address avoidance by moving
Internet content without modification.
AMENDMENTS (12) TO (14)
Subclauses 35(1) to (3) of proposed Schedule 5 to the BSA require an
Internet content host to comply with any interim-take down notice, final
take-down notice or special take-down notice that applies to the host (see
clauses 28 and 34) as soon as practicable, and in any event within 24 hours,
after the notice was given to the host.
Concern has been expressed that
the requirement to take action within 24 hours may in effect require Internet
content hosts to be on call 7 days per week, 365 days per
year.
Amendments (12) to (14) amend subclauses 35(1) to (3) to address
this concern. As a result of these amendments, an Internet content host will be
required to comply with any interim-take down notice, final take-down notice or
special take-down notice that applies to the host as soon as practicable, and in
any event by 6 pm on the next business day, after the notice was given to the
host. As a result of Amendment (6), the term ‘business day’ will be
defined in clause 2 of proposed Schedule 5 to the BSA to mean a day that is not
a Saturday, a Sunday or a public holiday in the place concerned.
AMENDMENT (15)
Clause 36 of proposed Schedule 5 to the BSA provides that Internet
content may be identified in a notice under Division 3 of Part 4 of Schedule 5
(which deals with action to be taken in relation to a complaint about prohibited
content hosted in Australia) by setting out the content, describing the content,
or in any other way.
For the purposes of greater clarity, Amendment (15)
inserts a new clause 36A to put beyond doubt that notices under Division 3
should identify a particular Internet site or a distinct part of such a
site.
AMENDMENT (16)
Amendment (16) is intended to put it beyond doubt that technical and
commercial feasibility are particular matters to which regard must be had in
determining whether particular steps are reasonable for the purposes of
paragraph 37(1)(c) of proposed Schedule 5 to the BSA.
AMENDMENT (17)
Amendment (17) addresses a further concern about the operation of
paragraph 37(1)(c). This concern is that there will be many users, including
schools and major businesses, that will already have their own blocking
technologies in place such as firewalls and filtering software. It has been
argued that it would be inefficient to be ‘double filtering’ such
material by also requiring Internet service providers to filter all requests
coming from such users and that the processing overheads from filtering
requirements could be reduced significantly if such users could be exempted from
the filtering requirements.
To address this concern, Amendment (17)
inserts new subclauses 37(3A) to (3D) of proposed Schedule 5 to the
BSA.
New subclause 37(3A) provides that an Internet service provider will
not be required to comply with a standard-access prevention notice under
paragraph 37(1)(c) in relation to a particular end-user of Internet content if
access by the end-user is subject to a recognised alternative access-prevention
arrangement that is applicable to the end-user.
New subclause 37(3B)
defines the term ‘recognised alternative access-prevention
arrangement’. The ABA will be able, by written instrument, to declare
that a specified arrangement or a specified class of arrangement is a recognised
alternative access-prevention arrangement for the purposes of the application of
Division 4 of Part 4 of proposed Schedule 5 to the BSA (which deals with action
to be taken in relation to a complaint about prohibited content hosted outside
Australia) to one or more specified end-users. The ABA will be able to do so if
it is satisfied that the arrangement is likely to provide a reasonably effective
means of preventing access by those end-users to prohibited content (as defined
by clause 8) and potential prohibited content (as defined by clause
9).
New subclause 37(3C) provides examples of arrangements that could be
declared to be recognised alternative access-prevention arrangements under
subclause 37(3B). These include an arrangement that involves the use of
regularly updated Internet content filtering software and an arrangement that
involves the use of a ‘family-friendly’ filtered Internet carriage
service. These examples are not intended to be exhaustive.
New subclause
37(3D) provides that the ABA’s instrument declaring that a specified
arrangement or specified class of arrangement is a recognised alternative
access-prevention arrangement under subclause 37(3B) will be a disallowable
instrument. The instrument must accordingly be notified in the Commonwealth
Gazette, tabled in the Parliament and will be subject to Parliamentary
disallowance.
AMENDMENTS (18) AND (19)
Amendments (18) and (19) amends the anti-avoidance provision in clauses 43 and 44 of proposed Schedule 5 to make it clear that ‘similar Internet content’ includes identical Internet content. This will address avoidance by moving Internet content without modification.
AMENDMENTS (20) AND (21)
Amendment (20) provides that technical and commercial feasibility are
additional matters to which regard must be had in determining whether particular
steps are reasonable for the purposes of subclause 44(1) of proposed Schedule 5
to the BSA.
Subclause 44(1) of proposed Schedule 5 to the BSA, as
currently drafted in the Bill, provides that if:
• a standard
access-prevention notice (see paragraph 37(1)(c)) relating to particular
Internet content is applicable to a particular Internet service provider;
and
• the ABA is satisfied that the provider is supplying an
Internet carriage service that enables end-users to access Internet content that
is substantially similar to the Internet content identified in the standard
access-prevention notice; and
• the ABA is satisfied that the
similar Internet content is prohibited content or potential prohibited
content;
the ABA will be able to give the provider a written notice known
as a special access-prevention notice directing the provider to take all
reasonable steps to prevent end-users from accessing the similar Internet
content at any time when the standard access-prevention notice is in force.
In determining whether particular steps are reasonable for the purposes
of subclause 44(1), regard will be required to be had to the matters set out in
the statement of Parliamentary intention in proposed subsection 4(3) of the BSA
(see item 4 of Schedule 1 to the Bill as proposed to be amended by Amendments
(1) to (4)) and such other matters as are relevant (subclauses 44(2) and
(3)).
Amendment (21) addresses a further concern about the operation of
subclause 44(1). This concern is that there will be many users, including
schools and major businesses, that will already have their own blocking
technologies in place such as firewalls and filtering software. It has been
argued that it would be inefficient to be ‘double filtering’ such
material by also requiring Internet service providers to filter all requests
coming from such users and that the processing overheads from filtering
requirements could be reduced significantly if such users could be exempted from
the filtering requirements.
To address this concern, Amendment (21)
inserts a new subclause 44(4) of proposed Schedule 5 to the BSA. This provides
that an Internet service provider will not be required to comply with a
special-access prevention notice under subclause 44(1) in relation to a
particular end-user of Internet content if access by the end-user is subject to
a recognised alternative access-prevention arrangement that is applicable to the
end-user.
New subclause 37(3B), to be inserted by Amendment (17), defines
the term ‘recognised alternative access-prevention arrangement’.
The ABA will be able, by written instrument, to declare that a specified
arrangement or a specified class of arrangement is a recognised alternative
access-prevention arrangement for the purposes of the application of Division 4
of Part 4 of proposed Schedule 5 to the BSA (which deals with action to be taken
in relation to a complaint about prohibited content hosted outside Australia) to
one or more specified end-users. The ABA will be able to do so if it is
satisfied that the arrangement is likely to provide a reasonably effective means
of preventing access by those end-users to prohibited content (as defined by
clause 8) and potential prohibited content (as defined by clause 9).
New
subclause 37(3C) provides examples of arrangements that could be declared to be
recognised alternative access-prevention arrangements under subclause 37(3B).
These include an arrangement that involves the use of regularly updated Internet
content filtering software and an arrangement that involves the use of a
‘family-friendly’ filtered Internet carriage service. These
examples are not intended to be exhaustive.
Subclauses 45(1) and (2) of proposed Schedule 5 to the BSA require an
Internet service provider to comply with a standard access-prevention notice
(see paragraph 37(1)(c)) or a special access-prevention notice (see clause 44)
that applies to the provider as soon as practicable, and in any event within 24
hours, after the notice was given to the provider.
Concern has been
expressed that the requirement to take action within 24 hours may in effect
require Internet content providers to be on call 7 days per week, 365 days per
year.
Amendments (22) and (23) amend subclauses 45(1) and (2) to address
this concern. As a result of these amendments, an Internet content provider
will be required to comply with any standard or special access-prevention notice
that applies to the provider as soon as practicable, and in any event by 6 pm on
the next business day, after the notice was given to the provider. As a result
of Amendment (6), the term ‘business day’ will be defined in clause
2 of proposed Schedule 5 to the BSA to mean a day that is not a Saturday, a
Sunday or a public holiday in the place concerned.
Clause 46 of proposed Schedule 5 to the BSA provides that Internet
content may be identified in a notice under Division 4 of Part 4 of Schedule 5
(which deals with action to be taken in relation to a complaint about prohibited
content hosted outside Australia) by setting out the content, describing the
content, or in any other way.
For the purposes of greater clarity,
Amendment (24) inserts a new clause 46A to put beyond doubt that notifications
under Division 4 (see paragraphs 37(1)(b) and (c)) should identify a particular
Internet site or a distinct part of such a site.
Clause 56 of proposed Schedule 5 to the BSA provides that it is the
intention of the Parliament that for both the Internet service provider and
Internet content host sections of the Internet industry, there should be an
industry code or an industry standard that deals with or an industry code and an
industry standard that together deal with the specified matters. These matters
include procedures directed towards the achievement of the objective of ensuring
that customers have the option of subscribing to a filtered Internet carriage
service.
Subclause 56(2) provides that it is the intention of the
Parliament that, for the Internet service provider section of the Internet
industry, there should be an industry code or an industry standard that deals
with or an industry code and an industry standard that together deal with each
of the following matters:
• the formulation of a designated
notification scheme (see clause 2);
• procedures to be followed by
Internet service providers in dealing with overseas hosted Internet content
notified to them by the ABA in accordance with a designated notification scheme
(for example, procedures to be followed by a particular class of Internet
service providers for the filtering, by technical means, of such
content).
Amendment (25) addresses a concern about the operation of
clause 56. This concern is that there will be many users, including schools and
major businesses, that will already have their own blocking technologies in
place such as firewalls and filtering software. It has been argued that it
would be inefficient to be ‘double filtering’ such material by also
requiring Internet service providers and Internet content hosts to filter all
requests coming from such users and that the processing overheads from filtering
requirements could be reduced significantly if such users could be exempted from
the filtering requirements.
To address this concern, Amendment (25)
inserts new subclauses 56(2A) to (2F) of proposed Schedule 5 to the
BSA.
New subclause 56(2A) provides that an industry code or an industry
standard will be able to exempt an Internet service provider from taking steps
to prevent end-users from accessing prohibited content hosted outside Australia,
or content that is substantially similar to such prohibited content, if access
is subject to an arrangement that is declared by the code or standard to be a
designated alternative access-prevention arrangement for the purposes of the
application of clause 56 to those end-users.
New subclause 56(2B)
provides that the body or association developing an industry code will not be
able to able to declare that a specified arrangement, or a class of specified
arrangement, is a designated alternative access-prevention arrangement for the
purposes of the application of clause 56 to one or more specified end-users, or
classes of specified end-users, unless the body or association is satisfied that
the arrangement is likely to provide a reasonably effective means of preventing
access by those end-users to prohibited content (as defined by clause 8) and
potential prohibited content (as defined by clause 9).
Similarly, new
subclause 56(2C) provides that the ABA, in making an industry standard, will not
be able to able to declare that a specified arrangement, or a class of specified
arrangement, is a designated alternative access-prevention arrangement for the
purposes of the application of clause 56 to one or more specified end-users, or
classes of specified end-users, unless the ABA is satisfied that the arrangement
is likely to provide a reasonably effective means of preventing access by those
end-users to prohibited content and potential prohibited content.
New
subclause 56(2D) provides examples of arrangements that could be declared to be
designated alternative access-prevention arrangements under subclause 56(2A).
These include an arrangement that involves the use of regularly updated Internet
content filtering software and an arrangement that involves the use of a
‘family-friendly’ filtered Internet carriage service. These
examples are not intended to be exhaustive.
New subclause 56(2E) and (2F) provide that for the purposes of proposed
Schedule 5 to the BSA, if an industry code or an industry
standard:
• deals to any extent with procedures to be followed by
Internet service providers in dealing with prohibited content hosted outside
Australia, or content that is substantially similar to such prohibited content;
and
• makes provision for a designated alternative
access-prevention arrangement;
then
• the code or standard
is deemed to have dealt with the requirements of paragraph 56(2)(d) (which
requires codes and standards to deal with procedures, including filtering
procedures, to be followed by Internet service providers in dealing with
prohibited content hosted outside Australia, or content that is substantially
similar to such prohibited content); and
• the code or standard is
deemed to be consistent with subclause 56(2).
AMENDMENT (26)
Clause 76 of proposed Schedule 5 to the BSA will allow the ABA to make a
written determination setting out rules that apply to Internet service providers
in relation to the supply of Internet carriage services and to Internet content
hosts in relation to the hosting of Internet content in Australia.
Determinations made under this clause will be known as online provider
determinations. They will be will be disallowable instruments for the purposes
of the Acts Interpretation Act 1901 and accordingly will be required to
be notified in the Commonwealth Gazette, tabled in the Parliament and
will be subject to Parliamentary disallowance.
Clause 75 provides that
each of the rules (if any) set out in an online provider determination in force
under clause 76 will be an online provider rule. Under clauses 78 and 82, a
person subject to an online provider rule who contravenes the rule will be
guilty of an offence and a continuing offence for each day during which the
contravention continues.
Concerns have been expressed that clause 76 gives the ABA undue powers to
create rules attracting criminal sanctions, even if the online provider
determination is subsequently disallowed.
Amendment (26) addresses this
concern by adding a qualification to clause 76 (new subclause 76(4A)) along the
lines of subsection 99(3) of the Telecommunications Act 1997. This will
ensure that the ABA cannot make an online provider determination unless the
determination relates to a matter specified in regulations made under the
BSA.