SA Introduce First State-Based Net Bill

AUSTRALIA -- The South Australian parliament will next month debate a range of amendments to their state-based Classification Bill to include online content, in line with the Federal Government's Online Censorship Amendment. The Amendment focuses on individuals responsible for uploading "offensive" content and will include online discussion groups and e-mail.

The SA Government is believed to be the first of the State/Territory Governments to act on the Commonwealth Government's request that they enact complementary enforcement legislation applicable to Internet users and content providers.

The Australian Classification (Publications, Films and Computer Games) (Miscellaneous) Amendment Bill 2000, is expected to be debated by the South Australian Parliament during its sittings commencing 13 March 2001.

"Among other things, the Bill criminalises making available content unsuitable for children online," Electronic Frontiers Australia (EFA) says, "even if the content is only made available to adults."

In other words, if a person places "matter unsuitable for minors" on a Web page, even on a password protected section of a site and the password is given only to adults, that person could be prosecuted under criminal law.

The maximum penalty planned is $10,000 and the Bill covers content placed on the web (including archived mailing lists), messages to newsgroups, and so on.

"The Bill complements the Commonwealth's laws passed last year, allowing concerned members of the public to complain about offensive Internet sites," South Australian Attorney-General Trevor Griffen says. "Access to these sites can be removed through the Australian Broadcasting Authority (ABA). The proposed State laws will allow prosecution of the persons who upload this content. They do not catch the service provider, who is already covered by the Commonwealth law."

While the drafters of the SA Bill have made minor changes to the draft model national legislation issued in August 1999 for public comment by the South Australian Attorney-General and some others, EFA believe the SA Bill is a "profoundly flawed document."

EFA disagree with Griffen, saying "the provision is also inconsistent with Commonwealth law. The ABA has no power to issue a take down notice to Internet Content Hosts (ICH) relative to content it considers "would be" classified R. However, the SA Bill enables prosecution of an Internet user to commence prior to the material being classified during which time it is legal for the ICH to continue to make the material available to both minors and adults. (ICH activities are regulated by Commonwealth law, not SA law.)"

Rather than address the intention that "what is illegal or controlled offline should also be illegal or controlled online," the SA Bill criminalises material online that is not illegal offline, the group add.

The South Australian Internet Association (SAIA) agree. President Simon Hackett says "Internet censorship laws should be the consistent with laws in the 'offline' realm. The laws differ in several ways, including larger fines for 'online' offences and using a different approach to assess whether content is illegal prior to commencing a prosecution."

Hackett believes the Bill "is 'well meaning' but "overshoots in its effort to protect people from online indecency." He says the legislation, if passed, would affect Internet content creators in South Australia and risked driving skilled IT workers out of the State to avoid punitive laws.

"Many of the flaws in the document appear to arise from the attempt to force Internet content into a censorship regime developed for an entirely different medium, that is commercial sale and exhibition of movies and videotapes," add the EFA.

EFA argue the classification of online content as a film creates a number of serious anomalies and unintended consequences.

If content providers can be successfully prosecuted for making available "films" that consist of text and static images (e.g. Web pages), then under existing Classification law librarians and teachers (and others) who manage or supervise premises containing computers connected to the Internet could be prosecuted for events beyond their ability to control, they say. These include "screening"/"exhibiting" objectionable matter and matter unsuitable for minors.

The SA Bill does not give content providers an opportunity to take material down when they have inadvertently mis-guessed the classification.

The Bill will also cover online newsgroups and e-mails, which are archived on Web sites, as "Internet content" has the same meaning as in the Commonwealth Broadcasting Services Act (BSA). "Internet content therefore does not include 'ordinary electronic e-mail' which is not defined other than that it 'does not include a posting to a newsgroup.' The SA Bill thus criminalises the on-line equivalents of some conversations in a pub, on a street corner, or at the local shopping centre. Posting material unsuitable for minors to a newsgroup, or any chat/discussion forum that is stored on the web, such as email discussion lists that are archived, is a criminal offence under the Bill whether or not the material is made available to minors."

EFA conclude that legislative attempts to regulate content on the Internet should be abandoned. "Publication of globally agreed illegal material can already be prosecuted under existing law, and regulations concerning contentious material are inappropriate in a world where cultural differences cannot be easily reconciled."


E Ink Grabs Philips Deal
Yahoo & Despegar.com Pen Travel Services Deal