Laws 0230 - Content 1 Content Regulation and Restrictions on Free Speech (inc. censorship, gambling,...

Laws 0230 - Content 11

Content Regulation Content Regulation and and

Restrictions on Free SpeechRestrictions on Free Speech

(inc. censorship, gambling, (inc. censorship, gambling, spam…)spam…)

David VaileExecutive Director

Cyberspace Law and Policy Centre

http://www.cyberlawcentre.org/genl0230/


SummarySummary

ClassificationClassification Internet content regulationInternet content regulation Gambling and online servicesGambling and online services SpamSpam


ThoseThose cartoons… cartoons…

ABC Media Watch criticises both the ABC Media Watch criticises both the cartoons and the decisions in Australia not cartoons and the decisions in Australia not to print them (after fact)to print them (after fact)

www.abc.net.au/mediawatch/transcripts/s15www.abc.net.au/mediawatch/transcripts/s1568919.htm68919.htm

www.abc.net.au/mediawatch/transcripts/s15www.abc.net.au/mediawatch/transcripts/s1568881.htm68881.htm

What do you think?What do you think? Is it about law, ethics, free speech, Is it about law, ethics, free speech,

respect… ?respect… ?


GENERAL CENSORSHIP GENERAL CENSORSHIP


CENSORSHIP: CENSORSHIP: CLASSIFICATION of CONTENTCLASSIFICATION of CONTENT

• OFLC - Guidelines for the Classification of Films and Computer Games• www.oflc.gov.au/www.oflc.gov.au/

resource.html?resource=62&filename=62.pdfresource.html?resource=62&filename=62.pdf

• www.oflc.gov.auwww.oflc.gov.au

• EFA - censorship outline• www.efa.org.au/Issues/Censor/cens1.htmlwww.efa.org.au/Issues/Censor/cens1.html


INTERNET CONTENTINTERNET CONTENTRegulationRegulation


Content Regulation - Content Regulation - United StatesUnited States

‘‘Constitutional protection’ of free Constitutional protection’ of free speechspeech

First AmendmentFirst Amendment to the US to the US ConstitutionConstitution

“ “ Congress shall make no law... Congress shall make no law... prohibiting the free exercise... prohibiting the free exercise... or abridging the freedom of speech”. or abridging the freedom of speech”.


Communications Decency ActCommunications Decency Act 1996 (CDA)1996 (CDA)

• CDACDAhttp://http://www.epic.org/CDA/cda.htmlwww.epic.org/CDA/cda.html

• ‘ ‘On a screen near you: Cyberporn’ On a screen near you: Cyberporn’ xenia.media.mit.edu/~rhodes/Cyberporn/time.htmlxenia.media.mit.edu/~rhodes/Cyberporn/time.html

• Carnegie Mellon University studyCarnegie Mellon University study‘Marketing Pornography on the Information ‘Marketing Pornography on the Information Superhighway’ Superhighway’

• American Civil Liberties Union (ACLU) American Civil Liberties Union (ACLU) www.aclu.orgwww.aclu.org

• Citizens Internet Empowerment Coalition (CIEC) Citizens Internet Empowerment Coalition (CIEC) www.ciec.orgwww.ciec.org


Action challenging the Action challenging the constitutionality of the CDA constitutionality of the CDA

American Civil Liberties Union v Reno American Civil Liberties Union v Reno 929 F Supp 824 (1996) Philadelphia District Court929 F Supp 824 (1996) Philadelphia District Court

Plaintiffs’ opposed two key prohibitions in the Act: Plaintiffs’ opposed two key prohibitions in the Act: • s 233 (a) illegal to knowingly send a minor material s 233 (a) illegal to knowingly send a minor material

which is legally ‘obscene’ or ‘indecent’; and which is legally ‘obscene’ or ‘indecent’; and

• s 233 (d) prohibits knowing sending or displaying of patently s 233 (d) prohibits knowing sending or displaying of patently offensive messages, according to community standards in a offensive messages, according to community standards in a manner that is available to a person under 18 years. manner that is available to a person under 18 years.


ACLU’s request for injunction ACLU’s request for injunction against enforcement grantedagainst enforcement granted

Attorney General (Janet Reno) Attorney General (Janet Reno) appealed to the Supreme Court appealed to the Supreme Court • 117 S Ct 2329 (1997)117 S Ct 2329 (1997)

supct.law.cornell.edu/supct/html/96-511.ZO.htsupct.law.cornell.edu/supct/html/96-511.ZO.htmlml

• CommentaryCommentarywww.reed.edu/~gronkep/webofpolitics/fall2001www.reed.edu/~gronkep/webofpolitics/fall2001/casons/ch2.html/casons/ch2.html


Child Online Protection ActChild Online Protection Act 1998 (COPA)1998 (COPA)

Second attemptSecond attempt www.epic.org/free_speech/censorship/cwww.epic.org/free_speech/censorship/c

opa.htmlopa.html

www.reed.edu/~gronkep/webofpolitics/www.reed.edu/~gronkep/webofpolitics/fall2001/casons/ch3.htmlfall2001/casons/ch3.html


ACLU v Reno IIACLU v Reno II 217 F 3d 162 (2000)217 F 3d 162 (2000)

www.epic.org/free_speech/copa/3d_cir_opinion.htwww.epic.org/free_speech/copa/3d_cir_opinion.htmlml

• became became ACLU v Ashcroft ACLU v Ashcroft when John Ashcroft when John Ashcroft became the new Attorney-Generalbecame the new Attorney-General

www.ca3.uscourts.gov/recentop/week/991324.pdfwww.ca3.uscourts.gov/recentop/week/991324.pdf

• March 2003 March 2003 Third Circuit Court of Appeals Third Circuit Court of Appeals struck down COPA as unconstitutional struck down COPA as unconstitutional


CDA and COPA casesCDA and COPA cases

“ “ ... ... make it clear that to be make it clear that to be constitutionally valid, US laws constitutionally valid, US laws attempting to regulate Internet content attempting to regulate Internet content must be very narrowly drafted and must be very narrowly drafted and highly specific to maintain the delicate highly specific to maintain the delicate balance between the protection of balance between the protection of children and freedom of speech and children and freedom of speech and expression.expression. ” ”

Sutter, ‘Nothing new under the Sun: Sutter, ‘Nothing new under the Sun: Old fears and the new mediaOld fears and the new media’’ (2000) (2000) IJLITIJLIT


Useful links -Useful links -American content regulationAmerican content regulation

‘‘Communications Decency ActCommunications Decency Act’ –’ –www.epic.org/cdawww.epic.org/cda

‘‘The Legal Challenge to the The Legal Challenge to the Child Online Child Online Protection ActProtection Act’ ’ www.epic.org/free_speech/copawww.epic.org/free_speech/copa. .

‘‘Internet Regulation: Governmental v Internet Regulation: Governmental v Individual;’ Individual;’ www.reed.edu/~gronkepwww.reed.edu/~gronkep/webofpolitics/fall2001/casons/ch1.html/webofpolitics/fall2001/casons/ch1.html

‘‘Content Regulation on the Internet’ Content Regulation on the Internet’ iml.jou.ufl.edu/projects/fall01/song/page5.htmliml.jou.ufl.edu/projects/fall01/song/page5.html


Content Regulation in AustraliaContent Regulation in Australia

Online content regulated by both Cth and State legislation. Online content regulated by both Cth and State legislation. Commonwealth regime: framework for regulating Commonwealth regime: framework for regulating

Internet Service ProvidersInternet Service Providers (ISPs) and (ISPs) and Internet Content HostsInternet Content Hosts (ICHs). (ICHs).

• ISP:ISP: a person who supplies an a person who supplies an Internet carriage serviceInternet carriage service, consisting of , consisting of service points within Australia, which enable end-users service points within Australia, which enable end-users (members of public) to access the Internet. (members of public) to access the Internet.

Corporate intranets not generally regarded as ISPs Corporate intranets not generally regarded as ISPs because not accessible to the public. because not accessible to the public.

• ICHICH: person who hosts Internet content in Australia. : person who hosts Internet content in Australia. Eg, a person with own website or server in Australia, and Eg, a person with own website or server in Australia, and

hosts content provided by a range of contributorshosts content provided by a range of contributors


Cth legislative instrumentsCth legislative instruments Classification (Publications, Films andClassification (Publications, Films and

Computer Games) Act 1995 Computer Games) Act 1995 (Cth)(Cth)

National Classification CodeNational Classification Code Schedule 5Schedule 5 and Schdule 7 to the and Schdule 7 to the

Broadcasting Services Act 1992Broadcasting Services Act 1992


Content regulation in Australia (2) Content regulation in Australia (2) the Statesthe States

Content providers, creators and users are regulated by Content providers, creators and users are regulated by State laws: the intentional publication and transmission State laws: the intentional publication and transmission of proscribed material online.of proscribed material online.

• While slightly out of date Volume 6, Number 1 (2000) While slightly out of date Volume 6, Number 1 (2000) of UNSW Law Journal is a good resource of UNSW Law Journal is a good resource http://www.austlii.edu.au/au/journals/UNSWLJ/2000http://www.austlii.edu.au/au/journals/UNSWLJ/2000

• The article ‘The Government's Regulatory Framework The article ‘The Government's Regulatory Framework for Internet Content’ is was written by Senator for Internet Content’ is was written by Senator Richard Alston, former Minister for Communications, Richard Alston, former Minister for Communications, Information Technology and the Arts.Information Technology and the Arts.


State and Territory Content State and Territory Content Regulation (3)Regulation (3)

Legislation regulating publication and transmission Legislation regulating publication and transmission of proscribed material online by content providers of proscribed material online by content providers and content creators is different in each state and and content creators is different in each state and territory; some states are yet to regulate. territory; some states are yet to regulate.

1999 Standing Committee of Attorneys-General’s 1999 Standing Committee of Attorneys-General’s group of State and Territory Censorship Minsters group of State and Territory Censorship Minsters released draft model legislation released draft model legislation http://www.efa.org.au/Publish/actdraft1.htmlhttp://www.efa.org.au/Publish/actdraft1.html

Aim: standardising censorship across statesAim: standardising censorship across states However, consistent model could not be agreed However, consistent model could not be agreed

upon and movement has since been abandoned. upon and movement has since been abandoned.


States which have enacted States which have enacted censorship legislation include:censorship legislation include:

VictoriaVictoria – – Classification (Publications, Films & Computer Classification (Publications, Films & Computer Games) (Enforcement) Act Games) (Enforcement) Act 1995 (Vic) 1995 (Vic) www.austlii.edu.au/au/legis/vic/consol_act/cfacga1995596/www.austlii.edu.au/au/legis/vic/consol_act/cfacga1995596/

Northern TerritoryNorthern Territory – – Classification of Publications, Films and Classification of Publications, Films and Computer Games Act Computer Games Act 1996 (NT) 1996 (NT) www.austlii.edu.au/au/legis/nt/consol_act/copfacga508/index.htmlwww.austlii.edu.au/au/legis/nt/consol_act/copfacga508/index.html

Western AustraliaWestern Australia – – Censorship Act Censorship Act 1996 (WA) 1996 (WA) www.austlii.edu.au/au/legis/wa/consol_act/ca1996137/index.htmlwww.austlii.edu.au/au/legis/wa/consol_act/ca1996137/index.html

South AustraliaSouth Australia – – Classification (Publications, Films and Classification (Publications, Films and Computer Games) (On-line Services) Amendment Act Computer Games) (On-line Services) Amendment Act 2002 2002 (SA) in force December 2002 based largely on 1999 draft (SA) in force December 2002 based largely on 1999 draft www.parliament.sa.gov.au/dbsearch/legislation_search.aspwww.parliament.sa.gov.au/dbsearch/legislation_search.asp


States (cont)States (cont) NSWNSW - - Classification (Publications, Films & Computer Games) Act Classification (Publications, Films & Computer Games) Act 1995 1995

(NSW) did not include regulating content on online services(NSW) did not include regulating content on online services Amendments in Schedule 2 Amendments in Schedule 2 Classification (Publications, Films and Classification (Publications, Films and

Computer Games) Enforcement AmendmentComputer Games) Enforcement Amendment Act 2001 based on 1999 Act 2001 based on 1999 draft draft www.austlii.edu.au/au/legis/nsw/consol_act/cfacgeaa2001676/sch2.htmlwww.austlii.edu.au/au/legis/nsw/consol_act/cfacgeaa2001676/sch2.html

• Commencement dateCommencement date not proclaimed for Schedule 2. not proclaimed for Schedule 2. • NSW Parliamentary Standing Committee on Social Issues inquiry into NSW Parliamentary Standing Committee on Social Issues inquiry into

Bill recommended Schedule 2 be Bill recommended Schedule 2 be repealedrepealed http://www.parliament.nsw.gov.au/prod/parlment/Committee.nsf/Loohttp://www.parliament.nsw.gov.au/prod/parlment/Committee.nsf/LookUp/Committee/StandingCommitteeonSocialIssues?OpenkUp/Committee/StandingCommitteeonSocialIssues?Open

• 9 December 2002, NSW Attorney General announced 9 December 2002, NSW Attorney General announced "the Act will neither be commenced nor repealed "the Act will neither be commenced nor repealed untiluntil [Commonwealth Government's review of Commonwealth censorship [Commonwealth Government's review of Commonwealth censorship legislation] has been completed and the findings have been legislation] has been completed and the findings have been considered." considered."

Queensland and Tasmania have yet to enact any relevant legislation. Queensland and Tasmania have yet to enact any relevant legislation. More information about state and territory content regulation: Electronic More information about state and territory content regulation: Electronic

Frontiers Australia’s Frontiers Australia’s Internet Censorship in AustraliaInternet Censorship in Australia http://www.efa.org.au/Issues/Censor/cens1.htmlhttp://www.efa.org.au/Issues/Censor/cens1.html. .


ISP and ICH ExemptionsISP and ICH Exemptions Important: ISPs and ICHs cannot be held responsible under Important: ISPs and ICHs cannot be held responsible under

State or Territory law or under common law or a rule of State or Territory law or under common law or a rule of equity for carrying or hosting particular material on Internet equity for carrying or hosting particular material on Internet if they were if they were not aware of the nature of the contentnot aware of the nature of the content (Sch 5 cl 91 (Sch 5 cl 91 Broadcasting Services ActBroadcasting Services Act 1992 (Cth)). 1992 (Cth)).

• For example, if an ISP carries material which is For example, if an ISP carries material which is defamatory or in contempt of court, but is not aware defamatory or in contempt of court, but is not aware that the material is carried on its service, ISP that the material is carried on its service, ISP cannotcannot be be sued or prosecuted for carrying this material. sued or prosecuted for carrying this material.

• Intention of law: Intention of law: content providerscontent providers or or usersusers liable liable

• But, if ISP becomes aware of illegal or infringing material But, if ISP becomes aware of illegal or infringing material on its service and on its service and takestakes no actionno action to have it removed to have it removed within reasonable time, protections not apply.within reasonable time, protections not apply.


Commonwealth Regulation Commonwealth Regulation

Broadcasting Services Amendment (Online Broadcasting Services Amendment (Online Services) ActServices) Act 1999 (Cth): 1 January 2000 1999 (Cth): 1 January 2000

www.austlii.edu.au/au/legis/cth/num_act/www.austlii.edu.au/au/legis/cth/num_act/bsasa1999n901999476/bsasa1999n901999476/

The Act inserted new Schedule 5 to The Act inserted new Schedule 5 to Broadcasting Services ActBroadcasting Services Act 1992 (Cth) 1992 (Cth) scaletext.law.gov.au/html/comact/8/4013/top.htmscaletext.law.gov.au/html/comact/8/4013/top.htm

Schedule 5 established the ‘Online Content Schedule 5 established the ‘Online Content Co-Regulatory Scheme’ for regulation of Co-Regulatory Scheme’ for regulation of prohibited content on the Internetprohibited content on the Internet


The Commonwealth Scheme (1)The Commonwealth Scheme (1)

Principle: what’s restricted Principle: what’s restricted offlineoffline should also be restricted should also be restricted onlineonline

Access to online content which is, or would Access to online content which is, or would be likely to be, be likely to be,

• Refused Classification (RC), or Refused Classification (RC), or

• Classified X or R Classified X or R by the Office of Film and Literature by the Office of Film and Literature

Classification (OFLC) Board Classification (OFLC) Board should be restricted in the same way should be restricted in the same way as access to offline materialas access to offline material


The Scheme (cont 2)The Scheme (cont 2) Act establishes co-regulatory scheme: Act establishes co-regulatory scheme:

Australian Communications & Media Authority Australian Communications & Media Authority ((ACMAACMA, former ABA) , former ABA) www.acma.gov.au www.acma.gov.au and Internet industry and Internet industry www.iia.net.auwww.iia.net.au ( (IIAIIA) share ) share responsibility for regulating Internet contentresponsibility for regulating Internet content• Scheme underpinned by industry-developed Scheme underpinned by industry-developed

Codes of PracticeCodes of Practice• ACMA can supplement using reserve powers ACMA can supplement using reserve powers

Activity by ACMA is Activity by ACMA is complaints-drivencomplaints-driven: : Sch 5 cl 2Sch 5 cl 2 Broadcasting Services Act Broadcasting Services Act 1992 1992 • Department of Communications, Information Technology Department of Communications, Information Technology

and the Arts (and the Arts (DCITADCITA) overview of scheme, insight into ) overview of scheme, insight into Commonwealth’s aims Commonwealth’s aims www.dcita.gov.au/__data/assets/file/32781/online_contentwww.dcita.gov.au/__data/assets/file/32781/online_content_co-reg_scheme_report_Sept_2005.rtf_co-reg_scheme_report_Sept_2005.rtf


Sen. Alston Sen. Alston The Government's Regulatory The Government's Regulatory Framework for Internet ContentFramework for Internet Content (2000) (2000)

Looks at Government’s reasoning Looks at Government’s reasoning behind 1999 amendments (behind 1999 amendments (http://www.austlii.edu.au/au/journals/http://www.austlii.edu.au/au/journals/UNSWLJ/2000/#V6N1FORUMUNSWLJ/2000/#V6N1FORUM))

some government aims (for example some government aims (for example consistent laws among States, consistent laws among States, Territories and Commonwealth) yet Territories and Commonwealth) yet to materialise to materialise


1999 Amendments 1999 Amendments Required review of legislative provisions Required review of legislative provisions

establishing online content scheme by 1 establishing online content scheme by 1 January 2003 January 2003

September 2002 DCITA published Issues September 2002 DCITA published Issues Paper ‘A review of the operation of Paper ‘A review of the operation of Schedule 5 to the Schedule 5 to the Broadcasting Services Broadcasting Services Act Act 1992’ 1992’ www.dcita.gov.au/media_broadcasting/conwww.dcita.gov.au/media_broadcasting/consultation_and_submissions/a_review_of_scsultation_and_submissions/a_review_of_schedule_5_to_the_broadcasting_services_suhedule_5_to_the_broadcasting_services_submissions_closedbmissions_closed


SubmissionsSubmissions• Mood of the Paper revealed support for stricter Mood of the Paper revealed support for stricter

content regulationcontent regulation

• One option considered by Minister: a central One option considered by Minister: a central system to filter all local and overseas internet system to filter all local and overseas internet traffic through a "proxy" server. traffic through a "proxy" server.

• But fears it would slow down overall InternetBut fears it would slow down overall Internet• Favours approach to toughen regulations on Favours approach to toughen regulations on

internet service providers, already obliged to internet service providers, already obliged to filter out offensive material. filter out offensive material.

• See also ‘Canberra clamp on net porn’ March 5 See also ‘Canberra clamp on net porn’ March 5 2003 2003 Australian IT Australian IT (Factiva)(Factiva)


Elements of the Elements of the Commonwealth SchemeCommonwealth Scheme

Main elements of the Scheme:Main elements of the Scheme:

• Industry codes of practice Industry codes of practice

• ACMA-administered ACMA-administered complaints systemcomplaints system

• Community educationCommunity education


3 Codes of Practice 3 Codes of Practice regulating ISPs & ICHs under Cth Schemeregulating ISPs & ICHs under Cth Scheme

• ISP Obligations in Relation to Internet ISP Obligations in Relation to Internet Access GenerallyAccess Generally

• ISP Obligations in Relation to Access to ISP Obligations in Relation to Access to Content Hosted Outside AustraliaContent Hosted Outside Australia

• Internet Content Host Obligations in Internet Content Host Obligations in Relation to Hosting of Content Within Relation to Hosting of Content Within AustraliaAustraliaCodes drafted by Internet Industry Association (IIA) (Codes drafted by Internet Industry Association (IIA) (http://http://www.iia.net.au/codes.htmlwww.iia.net.au/codes.html) and registered by ) and registered by ABA, in response to requirement in Act this be done by 1 ABA, in response to requirement in Act this be done by 1 January 2000; failing this ABA would have imposed a January 2000; failing this ABA would have imposed a standard on industry (Sch 5 cls 59 and 68 standard on industry (Sch 5 cls 59 and 68 Broadcasting Broadcasting Services ActServices Act).).


ACMA administered ACMA administered complaints systemcomplaints system

Under Scheme, any Australian resident or Under Scheme, any Australian resident or company can complain to the ACMA about company can complain to the ACMA about offensive online contentoffensive online content

ACMA provides telephone hotline as well as ACMA provides telephone hotline as well as online complaints form: online complaints form: www.aba.gov.au/what/online/complaints/www.aba.gov.au/what/online/complaints/

ACMA required to investigate all bona fide ACMA required to investigate all bona fide complaints, and decide whether material complaints, and decide whether material complained about falls into any prohibited complained about falls into any prohibited categorycategory


Community EducationCommunity Education Responsibility of ACMA and community advisory body Responsibility of ACMA and community advisory body

established by Fed Govt NetAlert (established by Fed Govt NetAlert (http://http://www.netalert.net.auwww.netalert.net.au//)) Role: educate and inform public and industry about Role: educate and inform public and industry about

managing access to prohibited Internet contentmanaging access to prohibited Internet content Scheme does NOT apply to private or restricted Scheme does NOT apply to private or restricted

distribution comms such as Intranets or email distribution comms such as Intranets or email (definition of (definition of ‘Internet content’ under Sch 5 cl 3 ‘Internet content’ under Sch 5 cl 3 Broadcasting Services ActBroadcasting Services Act).).

Does NOT apply to chatrooms or live audio or video Does NOT apply to chatrooms or live audio or video streamingstreaming

Does apply to material contained in newsgroups (page 18 Does apply to material contained in newsgroups (page 18 Revised Explanatory Memorandum, Broadcasting Services Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill Amendment (Online Services) Bill 1999 1999 http://scaleplus.law.gov.au/html/ems/0/1999/0/0642404224.htmhttp://scaleplus.law.gov.au/html/ems/0/1999/0/0642404224.htm) )


Prohibited ContentProhibited Content Site hosted in Australia or overseas? Site hosted in Australia or overseas?

(Sch 5 cl 10 (Sch 5 cl 10 Broadcasting Services ActBroadcasting Services Act).). • Hosted in Australia: Hosted in Australia: ‘prohibited content’ is ‘prohibited content’ is

Internet content Refused Classification (RC) or Internet content Refused Classification (RC) or classified X by OFLCclassified X by OFLC

also Internet content ratedalso Internet content rated R R, where not , where not subject to ‘subject to ‘Restricted Access SystemRestricted Access System’’

• Hosted overseas: Hosted overseas: ‘prohibited content’ only ‘prohibited content’ only that which would be Refused classification (RC) that which would be Refused classification (RC) or classified X by OFLCor classified X by OFLC

‘‘Potential prohibited content’ Potential prohibited content’ is Internet content is Internet content not classified by OFLC, but likely to be prohibited not classified by OFLC, but likely to be prohibited content if it werecontent if it were (Sch 5 cl 11 (Sch 5 cl 11 Broadcasting Services Broadcasting Services ActAct).).


Restricted Access SystemRestricted Access System RAS is system for preventing access by children RAS is system for preventing access by children

to R-rated content (Sch 5 cl 4 to R-rated content (Sch 5 cl 4 BSABSA)) Minimum requirements for RAS's are in ABA's Minimum requirements for RAS's are in ABA's

Restricted Access Systems DeclarationRestricted Access Systems Declaration 1999 1999 http://www.aba.gov.au/newspubs/news_releases/http://www.aba.gov.au/newspubs/news_releases/archive/1999/130nr99.shtmlarchive/1999/130nr99.shtml

To qualify as a ‘Restricted Access System’, the To qualify as a ‘Restricted Access System’, the system must perform three functions:system must perform three functions:• RegistrationRegistration• Qualification/ValidationQualification/Validation• AccessAccess


RegistrationRegistration The system must receive applications The system must receive applications

for registration in hard copy or for registration in hard copy or electronically electronically

To be registered, potential subscriber To be registered, potential subscriber must must • supply her/his name, supply her/his name,

• declare s/he is 18 years of age or olderdeclare s/he is 18 years of age or older

• provide credit card details or other provide credit card details or other evidence of ageevidence of age


Qualification/ValidationQualification/Validation The system must verify the potential The system must verify the potential

subscriber’s age subscriber’s age Upon verification, issue a personal Upon verification, issue a personal

identification number (PIN) or identification number (PIN) or password to applicant password to applicant

on condition the security information on condition the security information is not revealed to anyone elseis not revealed to anyone else


AccessAccess The system must require the The system must require the

applicant to input a valid password applicant to input a valid password or PIN or PIN

before granting access to content before granting access to content which is, or would be likely to be, which is, or would be likely to be, classified R. classified R.


ACMA Complaints Scheme (1)ACMA Complaints Scheme (1) Any person who is an Australian resident or an Any person who is an Australian resident or an

Australian company can make a complaint to the Australian company can make a complaint to the ACMA about ACMA about • objectionable material on the Internet or objectionable material on the Internet or

• about a contravention of the Codes by an ICH about a contravention of the Codes by an ICH (Sch 5 cls 22 – 25 (Sch 5 cls 22 – 25 BSABSA). ).

The complaint must be made either in writing to The complaint must be made either in writing to the ACMA, or the ACMA, or

via the online complaints form via the online complaints form www.aba.gov.au/what/online/complaints/www.aspwww.aba.gov.au/what/online/complaints/www.asp


Complaints Scheme (cont 2)Complaints Scheme (cont 2) Upon receiving a complaint, ACMA must investigate it Upon receiving a complaint, ACMA must investigate it

unless the ACMA views the complaint as frivolous, unless the ACMA views the complaint as frivolous, misguided or designed to undermine the scheme (Sch 5 cl misguided or designed to undermine the scheme (Sch 5 cl 26 26 BSABSA). ).

ACMA must take action where it is satisfied that the ACMA must take action where it is satisfied that the content complained of is prohibited content or potential content complained of is prohibited content or potential prohibited content. prohibited content.

Action taken by the ACMA will depend on whether content Action taken by the ACMA will depend on whether content complained of is hosted in Australia or overseas. complained of is hosted in Australia or overseas.

ACMA is required to inform all complainants of the ACMA is required to inform all complainants of the outcome of their complaint (Sch 5 cl 26(3) outcome of their complaint (Sch 5 cl 26(3) BSABSA).).


ACMA action where material is ACMA action where material is

hosted in Australiahosted in Australia If prohibited content hosted in Australia and classified RC, X If prohibited content hosted in Australia and classified RC, X

or R (where no RAS in place): ACMA must issue a or R (where no RAS in place): ACMA must issue a final final take-down noticetake-down notice directing ICH to cease hosting relevant directing ICH to cease hosting relevant content by 6.00 pm next business day. content by 6.00 pm next business day.

Where potential prohibited content has Where potential prohibited content has notnot been classified, been classified, but ACMA is satisfied it would be substantially likely to be but ACMA is satisfied it would be substantially likely to be classified RC, X or R (where no RAS in place): classified RC, X or R (where no RAS in place): ACMA must refer it to OFLC for classification. ACMA must refer it to OFLC for classification.

An An interim take-down noticeinterim take-down notice must also be issued where must also be issued where material is likely to be classified RC or X. material is likely to be classified RC or X.

Notice directs recipient to Notice directs recipient to cease hostingcease hosting content until content until ACMA has notified of classification of content determined by ACMA has notified of classification of content determined by OFLC. Requires that content be taken down no later than OFLC. Requires that content be taken down no later than 6.00pm6.00pm following business day (Sch 5 cl 30 following business day (Sch 5 cl 30 BSABSA).).


ACMA action where material is ACMA action where material is hosted in Australia (2)hosted in Australia (2)

ACMA must give ICH written notice of OFLC’s ACMA must give ICH written notice of OFLC’s decision. decision.

If OFLC classifies content RC, X or R (where no If OFLC classifies content RC, X or R (where no RAS in place: RAS in place: content is prohibited content and must be dealt content is prohibited content and must be dealt with accordingly by ACMA (see above). with accordingly by ACMA (see above).

This means that hosting R rated content hosted in This means that hosting R rated content hosted in Australia will be banned, unless there is an RAS in Australia will be banned, unless there is an RAS in place.place.


ACMA action where material is ACMA action where material is hosted outside Australiahosted outside Australia

If ICH is not in Australia, ACMA only takes action if If ICH is not in Australia, ACMA only takes action if (potential) prohibited content is (potential) prohibited content is RC or XRC or X category. category.

If ACMA forms view that content complained of is or would If ACMA forms view that content complained of is or would be classified RC or X: ACMA must notify suppliers of be classified RC or X: ACMA must notify suppliers of Scheduled Scheduled FiltersFilters and and ISPsISPs of location of content (Sch 5 cl of location of content (Sch 5 cl 40 40 BSABSA). ).

• Notification is usually by email. Notification is usually by email.

• notification happens pursuant to notification happens pursuant to Designated Notification Designated Notification SchemeScheme set out in the set out in the IIA CodesIIA Codes. .

ACMA may notify content to an ACMA may notify content to an Australian police forceAustralian police force, if , if it thinks such action is warranted. it thinks such action is warranted.

• For example, such material might be that which contravenes a For example, such material might be that which contravenes a State State Crimes ActCrimes Act such as such as child pornographychild pornography, or matter , or matter instructive in the instructive in the commission of a crimecommission of a crime. .


Enforcement Enforcement Failure to complyFailure to comply with ACMA take-down notice with ACMA take-down notice

or direction to comply with Code is an offence or direction to comply with Code is an offence

• Maximum penalty of $5,500 for individuals or Maximum penalty of $5,500 for individuals or $27,500 for corporations (Sch 5 Part 6 $27,500 for corporations (Sch 5 Part 6 BSABSA). ).

A contravention of an ACMA direction or notice is A contravention of an ACMA direction or notice is considered to be a considered to be a continuing offencecontinuing offence

• Each day during which the contravention Each day during which the contravention continues and can attract up to 10% of the continues and can attract up to 10% of the above penalties per day (s 213 above penalties per day (s 213 BSABSA). ).


Criticisms of the Criticisms of the Commonwealth Scheme Commonwealth Scheme

2003 Australia Institute study revealed current scheme is a 2003 Australia Institute study revealed current scheme is a “manifest failure”. “manifest failure”.

• Youth and Pornography in Australia: Evidence on the extent Youth and Pornography in Australia: Evidence on the extent of exposure and likely effectsof exposure and likely effects revealed 84% of teenage boys revealed 84% of teenage boys and 60% of girls accidentally came across Internet sex sites and 60% of girls accidentally came across Internet sex sites and 38% of boys and 2% of girls deliberately visited such and 38% of boys and 2% of girls deliberately visited such sites. sites.

• drastic recommendation: all ISPs filter all net content drastic recommendation: all ISPs filter all net content http://www.tai.org.au/WhatsNew_Files/WhatsNew/DP52sum.pdfhttp://www.tai.org.au/WhatsNew_Files/WhatsNew/DP52sum.pdf

• view close to Federal Govt position, announced look at view close to Federal Govt position, announced look at reducing access to hardcore pornography from PCsreducing access to hardcore pornography from PCs

• ‘‘Net porn controls useless: study’ March 4, 2003 Net porn controls useless: study’ March 4, 2003 cnn.comcnn.com http://edition.cnn.com/2003/WORLD/asiapcf/auspac/03/03/ahttp://edition.cnn.com/2003/WORLD/asiapcf/auspac/03/03/australia.netporn/index.htmlustralia.netporn/index.html


EFA criticised ineffectiveness of EFA criticised ineffectiveness of online regulation scheme online regulation scheme

““failed dismally insofar as its alleged objective of making the Internet failed dismally insofar as its alleged objective of making the Internet safer for children is concerned” safer for children is concerned” ((http://www.efa.org.au/Issues/Censor/cens1.htmlhttp://www.efa.org.au/Issues/Censor/cens1.html). ).

Unlike AI, EFA condemns current regime as Unlike AI, EFA condemns current regime as infringement on adult infringement on adult free speechfree speech both generally, and in light of offshore publications not both generally, and in light of offshore publications not receiving same level of censorship. receiving same level of censorship.

Urges those who value freedom of speech to lobby Parliament repeal Urges those who value freedom of speech to lobby Parliament repeal 1999 amdts to 1999 amdts to Broadcasting Services ActBroadcasting Services Act. .

2002 EFA response to DCITA’s 2002 EFA response to DCITA’s Review of Operation of Schedule 5 to Review of Operation of Schedule 5 to Broadcasting Services Act 1992Broadcasting Services Act 1992 noted failings of regulatory scheme and noted failings of regulatory scheme and review paper itself: Alston stmt trumpeting success of scheme were by review paper itself: Alston stmt trumpeting success of scheme were by own admission based on erroneous statistics. own admission based on erroneous statistics.

““ABA's refusal to provide URLs of taken-down Australian hosted web ABA's refusal to provide URLs of taken-down Australian hosted web pages, on ground that such information would enable a person to access pages, on ground that such information would enable a person to access prohibited content, indicates the ACMA believes such content has not prohibited content, indicates the ACMA believes such content has not been taken down from the Internet”. (been taken down from the Internet”. (http://www.efa.org.au/Publish/efasubm_bsa2002.htmlhttp://www.efa.org.au/Publish/efasubm_bsa2002.html) )


Codes of ConductCodes of Conduct Internet Industry Association (IIA) Internet Industry Association (IIA) Internet Internet

Industry Codes of PracticeIndustry Codes of Practice (version 7.2) (version 7.2) http://www.iia.net.au/ContentCode7_2.rtfhttp://www.iia.net.au/ContentCode7_2.rtf

Operates as part of a co-regulation Operates as part of a co-regulation scheme: scheme:

While voluntary, While voluntary, Broadcasting Services Act Broadcasting Services Act provides that if ACMA directs an ISP or ICH provides that if ACMA directs an ISP or ICH to comply with this code, they are required to comply with this code, they are required to do soto do so


ISPs and ICHs responsibilities (2)ISPs and ICHs responsibilities (2)

Take reasonable steps to make sure that Take reasonable steps to make sure that childrenchildren do not do not become Internet subscribers become Internet subscribers without the consent of an without the consent of an adult;adult;

Encourage subscribers who are commercial content Encourage subscribers who are commercial content providers to providers to labellabel content that might be unsuitable for content that might be unsuitable for children; children;

Advise subscribers who are commercial content providers Advise subscribers who are commercial content providers about their about their legal responsibilitieslegal responsibilities in relation to content; in relation to content;

Inform users about ways they can Inform users about ways they can supervisesupervise and control and control their children’s access to Internet content; their children’s access to Internet content;

Help subscribers Help subscribers blockblock unwanted and undesirable email; unwanted and undesirable email; On becoming aware that an ICH is hosting On becoming aware that an ICH is hosting Prohibited Prohibited

ContentContent advise them about the Prohibited Content; advise them about the Prohibited Content;


Codes (cont 3)Codes (cont 3) Provide Provide Scheduled FiltersScheduled Filters for subscribers in for subscribers in

Australia at charge determined by ISP (although Australia at charge determined by ISP (although in case of individual subscribers this charge in case of individual subscribers this charge cannot exceed cost to the ISP of providing filter). cannot exceed cost to the ISP of providing filter).

Obligation on ISPs to provide approved filters not Obligation on ISPs to provide approved filters not apply where already an effective mechanism in apply where already an effective mechanism in place to filter content ( ‘place to filter content ( ‘designated alternative designated alternative access prevention arrangement’access prevention arrangement’); );

Take reasonable steps to inform subscribers Take reasonable steps to inform subscribers about their right to, and procedures for, making about their right to, and procedures for, making complaintscomplaints to the ACMA about online content. to the ACMA about online content.


CodesCodes (cont 4) (cont 4) Codes also recognise limitations of present filtering Codes also recognise limitations of present filtering

technologies and impracticality of filtering all technologies and impracticality of filtering all Internet contentInternet content

Nevertheless, Codes endorse end user Nevertheless, Codes endorse end user empowerment including education, provision of empowerment including education, provision of information, and filtering methods as most practical information, and filtering methods as most practical means by which responsible adults can facilitate means by which responsible adults can facilitate appropriate controls, particularly childrenappropriate controls, particularly children

To encourage adoption of best practice standards To encourage adoption of best practice standards IIA launched IIA launched Family Friendly ISP SealFamily Friendly ISP Seal scheme. ISPs scheme. ISPs compliant with IIA codes to display a special seal compliant with IIA codes to display a special seal known as ‘Ladybird Logo’. known as ‘Ladybird Logo’.


IIA Codes of PracticesIIA Codes of Practices IIA Content Regulation Code of Practice IIA Content Regulation Code of Practice

Webpage Webpage • http://www.iia.net.au/contentcode.htmlhttp://www.iia.net.au/contentcode.html

Guide for ISPs: Information About Online Guide for ISPs: Information About Online Content Content • http://http://www.iia.net.au/guide.htmlwww.iia.net.au/guide.html

Guide for Internet Users: Information About Guide for Internet Users: Information About Online ContentOnline Content• http://www.iia.net.au/guideuser.htmlhttp://www.iia.net.au/guideuser.html


INTERACTIVE INTERACTIVE GAMBLINGGAMBLING


KEY ISSUESKEY ISSUES

Policy: What was the Government Policy: What was the Government trying to achieve?trying to achieve?

Law: How is it trying to achieve it?Law: How is it trying to achieve it? Technology: Interaction with policy Technology: Interaction with policy

and law.and law.


POLICY OBJECTIVESPOLICY OBJECTIVES Address a potential area of problem Address a potential area of problem

gambling before it starts by gambling before it starts by curtailing opportunities for it to grow.curtailing opportunities for it to grow.

Moratorium on new Australian Moratorium on new Australian services from May 2000 to May 2001services from May 2000 to May 2001

NOIE report: feasibility & NOIE report: feasibility & consequences of a ban on interactive consequences of a ban on interactive gambling.gambling.


INTERNET GAMBLINGINTERNET GAMBLING 1,400 sites (100% increase in 12 1,400 sites (100% increase in 12

months to 2001)months to 2001) Revenue estimates:Revenue estimates:

20012001 $US2.5 b$US2.5 b

20022002 $US3.5 b$US3.5 b

20032003 $US5.0 b$US5.0 b


STATE OF PLAYSTATE OF PLAY Moratorium expired 18 May 2001Moratorium expired 18 May 2001 Interactive Gambling Act 2001Interactive Gambling Act 2001

-- Senate Committee reported 23 MaySenate Committee reported 23 May Offline gambling issues being Offline gambling issues being

separately addressed by separately addressed by Commonwealth/ States.Commonwealth/ States.


INTERACTIVE GAMBLING INTERACTIVE GAMBLING ACT 2001ACT 2001

Prohibits Australian-based ‘interactive Prohibits Australian-based ‘interactive gambling services’ from being provided to gambling services’ from being provided to customers in Australia.customers in Australia.

Established complaints regime for Internet Established complaints regime for Internet gambling servicesgambling services• focus is services hosted outside Australiafocus is services hosted outside Australia

http://www.austlii.edu.au/au/legis/cth/conshttp://www.austlii.edu.au/au/legis/cth/consol_act/iga2001193/ol_act/iga2001193/


MAIN OFFENCE CREATEDMAIN OFFENCE CREATED

Section 15Section 15A person is guilty of an offence if:A person is guilty of an offence if:

(a) the person intentionally provides (a) the person intentionally provides an Australian-based interactive an Australian-based interactive gambling service; andgambling service; and

(b) the service has an Australian (b) the service has an Australian customer link.customer link.


WHAT SORT OF ‘WHAT SORT OF ‘GAMBLING SERVICESGAMBLING SERVICES’?’?

Placing, making, receiving or Placing, making, receiving or accepting betsaccepting bets

Introducing gamblers to providersIntroducing gamblers to providers Lotteries & lottery ticketsLotteries & lottery tickets A game of chance, A game of chance,

or of mixed chance and skill, or of mixed chance and skill, played for something of value played for something of value and for considerationand for consideration


NOT AFFECTEDNOT AFFECTED Contracts that, under Corporations Contracts that, under Corporations

Law, are exempt from a law relating Law, are exempt from a law relating to gaming or wageringto gaming or wagering

-- options and futures contractsoptions and futures contracts

-- online share tradingonline share trading ““Linked jackpot” gaming machines.Linked jackpot” gaming machines. TV game shows!TV game shows!


AUSTRALIAN-BASED AUSTRALIAN-BASED Interactive Gambling ServicesInteractive Gambling Services

Provided in the course of carrying on Provided in the course of carrying on a business; anda business; and

Provided to customers using:Provided to customers using:• Internet or other listed carriage serviceInternet or other listed carriage service• broadcasting or datacasting servicebroadcasting or datacasting service• any other content service; andany other content service; and

Has an Australian-provider link.Has an Australian-provider link.


AUSTRALIAN-PROVIDER LINKAUSTRALIAN-PROVIDER LINK Carrying on a business in Australia; Carrying on a business in Australia;

oror Central management & control is in Central management & control is in

Australia; orAustralia; or Provided through an agent in Provided through an agent in

Australia; orAustralia; or Relevant Internet content is hosted Relevant Internet content is hosted

in Australia.in Australia.


AUSTRALIAN AUSTRALIAN CUSTOMER LINKCUSTOMER LINK

If, and only if, any or all of the If, and only if, any or all of the customers of the service are customers of the service are physically present in Australiaphysically present in Australia


OTHER LEGAL ISSUESOTHER LEGAL ISSUES Constitutional heads of powerConstitutional heads of power

Claims for compensationClaims for compensation Constitutional issues: Constitutional issues:

• is any property being “acquired”?is any property being “acquired”?• broader dimension: a “moral claim”?broader dimension: a “moral claim”?


Technology IssuesTechnology Issues


TECHNOLOGY ASPECTSTECHNOLOGY ASPECTS Blocking / filtering technologiesBlocking / filtering technologies

• none 100% effectivenone 100% effective• all affect Internet performanceall affect Internet performance• mandatory vs voluntarymandatory vs voluntary

Overseas sitesOverseas sites• the online content regime as a modelthe online content regime as a model


Tasmanian breakthrough?Tasmanian breakthrough? BetFair agreement with Tasmanian BetFair agreement with Tasmanian

government January 2006government January 2006 ““Briefings by Betfair Australia - a 50-50 joint venture Briefings by Betfair Australia - a 50-50 joint venture

Betfair UK and Kerry Packer's Publishing & Broadcasting Betfair UK and Kerry Packer's Publishing & Broadcasting Ltd - convinced MLCs of integrity of betting exchange” Ltd - convinced MLCs of integrity of betting exchange”

allegations of ‘free’ hospitalityallegations of ‘free’ hospitality ““After months of controversy filled with questions and After months of controversy filled with questions and

doubt from members of Tasmanian government and doubt from members of Tasmanian government and Australian racing industry, British betting exchange Australian racing industry, British betting exchange Betfair was finally granted a license to operate in Betfair was finally granted a license to operate in Tasmania”Tasmania”

Gaming Control Amendment Gaming Control Amendment (Betting Exchanges) Act 2005 ((Betting Exchanges) Act 2005 (TasTas) ) URLURL • Can bet on losers - an exchangeCan bet on losers - an exchange


SPAM, SPAM, SPAMSPAM, SPAM, SPAM


Spam laws in Australia Spam laws in Australia and surveillanceand surveillance

Do Spam laws stop Spam, Do Spam laws stop Spam, or invite routine email or invite routine email surveillance at work?surveillance at work?


Promise more than deliver?Promise more than deliver? Internet: strange beast to Internet: strange beast to regulateregulate

• ‘‘Cyberspace’ out thereCyberspace’ out there• Jurisdiction: none or too much?Jurisdiction: none or too much?

Brave attempts to legislate Brave attempts to legislate • Good intentions and ingenuityGood intentions and ingenuity

But often undermined by a flawBut often undermined by a flaw• Fails to deliver on promiseFails to deliver on promise• Side effects can swamp intended effectsSide effects can swamp intended effects


Email surveillance and SpamEmail surveillance and Spam Spam threatens viability of email systemSpam threatens viability of email system Legislation in 2003, each flawedLegislation in 2003, each flawed IT security seen as ultimate Spam solutionIT security seen as ultimate Spam solution Workplace surveillance as the answer?Workplace surveillance as the answer? Threat to privacy of emailThreat to privacy of email Misses the targetMisses the target

• Won’t workWon’t work• Erosion of trust, collateral damageErosion of trust, collateral damage• Undermine training, organisation intelligenceUndermine training, organisation intelligence


Spam threatens email’s viabilitySpam threatens email’s viability Spam is 2/3 of all email Spam is 2/3 of all email (Messagecare)(Messagecare)

Technical load on infrastructureTechnical load on infrastructure Threat to trust, Internet social bondsThreat to trust, Internet social bonds

• People begin to abandon emailPeople begin to abandon email• Network effect declinesNetwork effect declines

‘‘Tragedy of the Commons’ Tragedy of the Commons’ (Catlett)(Catlett) Market and technical failureMarket and technical failure


Some problems with real SpamSome problems with real Spam ‘‘Epidemic’ of asymmetric attacksEpidemic’ of asymmetric attacks Sender is hiddenSender is hidden Sender is out of jurisdictionSender is out of jurisdiction Spam botsSpam bots

• Address harvestingAddress harvesting• Hybrid worms with built-in mail servers!Hybrid worms with built-in mail servers!

Arms race, cheap technical advancesArms race, cheap technical advances• Eg, Anti-filtering contentEg, Anti-filtering content


A tale of 2003 Spam lawsA tale of 2003 Spam laws

Reaction to threat to Email systemReaction to threat to Email system California’s Spam lawCalifornia’s Spam law US Federal ‘US Federal ‘CAN-SPAM’ ActCAN-SPAM’ Act Australian Australian Spam ActSpam Act EU Directive EU Directive (not covered)(not covered)

Spot the crippling flaws…Spot the crippling flaws…


Californian Spam laws of 2003Californian Spam laws of 2003

Stricter legislation than AustraliaStricter legislation than Australia Requires prior consent (‘Opt in’)Requires prior consent (‘Opt in’)

• Can’t rely on ‘Unsubscribe’Can’t rely on ‘Unsubscribe’• Unsubscribe is too lateUnsubscribe is too late

‘‘Private right of action’Private right of action’• Anyone could have sued; but …Anyone could have sued; but …

Overridden by CAN SPAM (federal)Overridden by CAN SPAM (federal)


US CAN-SPAM Act 2003US CAN-SPAM Act 2003 ‘‘Opt out’, not ‘opt in’Opt out’, not ‘opt in’ Requires only: Requires only:

• Good return addressGood return address• Honour opt out requestHonour opt out request

Over-rides Californian lawOver-rides Californian law Weakens protection drasticallyWeakens protection drastically Triumph of Direct Marketing AssnTriumph of Direct Marketing Assn


Australia’s Spam Act 2003Australia’s Spam Act 2003 A different political balanceA different political balance ADMA accepted ‘Opt-in’ (unlike US DMA)ADMA accepted ‘Opt-in’ (unlike US DMA) Loopholes to drive a truck through?Loopholes to drive a truck through?

• Exempt bodies, Purely factual messages…Exempt bodies, Purely factual messages… Dragnet to catch slippery spammersDragnet to catch slippery spammers

• Single message can be Spam!Single message can be Spam! Harsh ‘search and seizure’ powersHarsh ‘search and seizure’ powers http://www.austlii.edu.au/au/legis/cth/conshttp://www.austlii.edu.au/au/legis/cth/cons

ol_act/sa200366/ol_act/sa200366/


Concepts in Concepts in Spam Act 2003 (Cth)Spam Act 2003 (Cth)

‘‘Commercial electronic messages’Commercial electronic messages’ Banned if ‘unsolicited’Banned if ‘unsolicited’ Prior consent required: Prior consent required:

Explicit or implicit?Explicit or implicit?

Covers individual emailsCovers individual emails Drastic fines for repeat offendersDrastic fines for repeat offenders Complex exemptionsComplex exemptions Relationships relevant to the testRelationships relevant to the test


Enforcement of Spam ActEnforcement of Spam Act ACMA under-resourced?ACMA under-resourced? ‘‘Softly, softly’ policy?Softly, softly’ policy? Target the extreme abusersTarget the extreme abusers Liability net is wide and complexLiability net is wide and complex Many offences not prosecutedMany offences not prosecuted Wide discretion, uncertainty?Wide discretion, uncertainty?


Risk of Spam Act prosecutionRisk of Spam Act prosecution Liability v. risk of prosecution?Liability v. risk of prosecution? Serious OffencesSerious Offences Huge PenaltiesHuge Penalties But ACA policy, resourcesBut ACA policy, resources Intention needed for offence?Intention needed for offence? Practical risk of single message SpamPractical risk of single message Spam Difficult to frame legal adviceDifficult to frame legal advice


Problems of email at workProblems of email at work Complex Spam liability rulesComplex Spam liability rules Other legal issuesOther legal issues Viruses and securityViruses and security Pornography etc.Pornography etc. Temptation to track everything?Temptation to track everything?


NSW workplace surveillance lawNSW workplace surveillance law

Announced 30 March 2004Announced 30 March 2004 Workplace surveillance already regulatedWorkplace surveillance already regulated

• ‘‘Strict laws & protocols to restrict employer snooping on Strict laws & protocols to restrict employer snooping on workers phone’workers phone’

Workplace Video Surveillance ActWorkplace Video Surveillance Act To be amended to cover email, other tech.To be amended to cover email, other tech. Prohibits email surveillance Prohibits email surveillance

• Without court order or consentWithout court order or consent Challenges IT control, Spam monitoringChallenges IT control, Spam monitoring


IssuesIssues Industrial opposition to monitoringIndustrial opposition to monitoring Balance of interestsBalance of interests ‘‘Mutually respectable workplace’Mutually respectable workplace’ Privacy rights protected in a new Privacy rights protected in a new

spheresphere See See Privacy ActsPrivacy Acts Federal and State Federal and State Focus on consent Focus on consent


Bark worse than bite?Bark worse than bite? Reduce secret surveillanceReduce secret surveillance May just result in forced consentMay just result in forced consent Potential to be stricter - details!Potential to be stricter - details! Any practical effect?Any practical effect? Precedent for other safeguards?Precedent for other safeguards?


Surveillance stops Spam? Surveillance stops Spam? Divergence of viewsDivergence of views IT solution v people solutionIT solution v people solution What is the problem?What is the problem? After the fact – too lateAfter the fact – too late Not reveal the basis of exemptionsNot reveal the basis of exemptions Inadvertent breaches of the ActInadvertent breaches of the Act


A better solution?A better solution? Trust and respectTrust and respect Training and peer supportTraining and peer support Sensible policies & goodwillSensible policies & goodwill Cooperation with ACMA, ACCC, TIOCooperation with ACMA, ACCC, TIO Complaint-based approachComplaint-based approach Review marketing and PRReview marketing and PR Seeking consent is good businessSeeking consent is good business


Spam - ConclusionSpam - Conclusion

Spam law unintended consequencesSpam law unintended consequences Surveillance cultureSurveillance culture New awareness of privacyNew awareness of privacy NSW anti-email surveillance lawNSW anti-email surveillance law Effective risk managementEffective risk management Low risk of prosecutionLow risk of prosecution Better solutionBetter solution

Laws 0230 - Content 1 Content Regulation and Restrictions on Free Speech (inc. censorship, gambling,...

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Transcript of Laws 0230 - Content 1 Content Regulation and Restrictions on Free Speech (inc. censorship, gambling,...