Australian Censorship News: June 2007: Part 3
UPDATES: 2nd June 2007
CONTENT SERVICES BILL Hearings
UPDATES
2nd June 2007
CONTENT SERVICES BILL Hearings
On the morning of June 1st 2007 the Senate held hearing into the Communications Legislation Amendment (Content Services) Bill 2007. The Senators are:
ALP
SA Senator Dana Wortley
WA Senator Ruth Webber
Liberal Party
SA Senator Simon Birmingham
QLD Senator Ian Macdonald
Inquiry into the provisions of the Communications
Legislation Amendment (Content Services) Bill 2007
Submissions received
by the committee as at 31/05/07
Senate STANDING COMMITTEE ON ENVIRONMENT,
COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS: Communications Legislation
Amendment (Content Services) Bill 2007: Start of Business
Date 01 June, 2007
Committee STANDING COMMITTEE ON ENVIRONMENT, COMMUNICATIONS, INFORMATION
TECHNOLOGY AND THE ARTS
Reference Communications Legislation Amendment (Content Services) Bill 2007
Place Canberra
Proof Yes
Database Committees Considering Bills
Source Senate
Committee met at 8.34 am
Talk
CHAIR (Senator Eggleston)—I declare open this public hearing of the Senate
Standing Committee on the Environment, Communications, Information Technology
and the Arts in its inquiry into Communications Legislation Amendment (Content
Services) Bill 2007. The committee’s proceedings today will follow the program
as circulated.
These are public proceedings. The committee may also agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera. I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. If a witness objects to answering a question, the witness should state the ground upon which the objection is to be taken and the committee will determine whether it will insist on an answer, having regard to the ground on which it is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time.
[8.36 am]
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STANDING COMMITTEE ON ENVIRONMENT,
COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS: Communications Legislation
Amendment (Content Services) Bill 2007: Witnesses
Date 01 June, 2007 Committee STANDING COMMITTEE ON ENVIRONMENT, COMMUNICATIONS,
INFORMATION TECHNOLOGY AND THE ARTS
Reference Communications Legislation Amendment (Content Services) Bill
2007
Place Canberra
Page 2
Proof Yes
Database Committees Considering Bills
Source Senate
GILES, Ms Katherine, Solicitor, Arts Law Centre of Australia Evidence was taken via teleconference—
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STANDING COMMITTEE ON ENVIRONMENT,
COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS: Communications Legislation
Amendment (Content Services) Bill 2007: Discussion
Date 01 June, 2007
Committee STANDING COMMITTEE ON ENVIRONMENT, COMMUNICATIONS, INFORMATION
TECHNOLOGY AND THE ARTS
Reference Communications Legislation Amendment (Content Services) Bill
2007
Place Canberra
Questioner Senator WORTLEY; Senator WEBBER; Senator BIRMINGHAM; CHAIR Responder
Ms Giles
Page 2
Proof Yes
Database Committees Considering Bills
Source Senate
Talk CHAIR—Welcome. Do you wish to make an opening statement, after which we will proceed to questions?
Talk Ms Giles—The Arts Law Centre of Australia is the national community legal centre for the arts. It was set up in 1983. Our submission details the type of clients or callers that we advise. Basically we give free legal advice to artists and arts organisations all around Australia. We provide legal resources, education and advocacy on behalf of artists and arts organisations. We have a number of issues of concern with the Communications Legislation Amendment (Content Services) Bill 2007 and the explanatory memorandum.
The first point we make is that we note the lack of time given to review the legislation and provide feedback concerning the legislation. Further, we note that Arts Law and other organisations representing content creators such as artists were given very little chance to respond. We note that NAVA, the National Association for the Visual Arts; ASA, the Australian Society of Authors; ASDA, the Australian Screen Directors Association; and organisations such as dLux Media Arts, representing new media and multimedia artists, were not consulted or given the opportunity to see the legislation in its draft form before it was publicly provided for review.
Further, we note that Arts Law contacted DCITA in March 2007 when it was reported in the Sydney Morning Herald and on Crikey.com.au that the government was contemplating a bill entitled the contents services bill. We contacted DCITA and were informed that consultations with a number of parties had already taken place, that no further consultations would occur and that the draft would not be made available until it was tabled in parliament. So we note our concern that a number of organisations were not consulted during this initial consultation process, nor given the chance to give input during that process.
We note that we advise content creators—artists who create short video works, moving image art and films which might be distributed by broadband services to mobile handsets and the internet. This is a potential market for a lot of artists and a way to generate income from the internet and mobile distribution but also for many artists one of the only ways that they are able to share their work with the public. Arts Law submits that the onus imposed on carriage service providers to remove access to a service where it is considered to contain prohibited material is likely to result in an exercise of that very broad discretion in a way which may discriminate against digital and multimedia artists.
Some of our further concerns are that it is difficult for an artist or a content creator to know when their work will be potentially be rated X18+. How will an artist, a content creator, know when their work is likely to be rated R18+? It also appears that artists who create anything that might be suitable for an MA15+ or above audience would be seriously disadvantaged under the bill. This is unsuitable when artists and content creators are creating material that might deal with serious dramatic scenes that question society or refer to drugs, sex or violence in any way that is beyond the scope of and MA15+ rating. When material is removed from a carriage service provider, who will decide that it is potentially prohibited content? Can this decision be appealed by the content creator? Who will decide that there is a substantial likelihood that the content would be prohibited content if it were classified?
The explanatory memorandum also refers to industry codes of practice. Will these industry codes of practice also provide protection and an appeals mechanism for the artist, the content creator? When a content provider is obliged to engage appropriately trained assessors to provide advice on likely classification, will the artist, the content creator, be able to appeal the decision of this trained assessor?
The ACMA will also have the power to determine industry standards in accordance with prevailing community standards where industry codes are considered deficient. But how will these community standards be ascertained, and will content creators and artists be able to provide input in terms of determining these community standards? We submit that it would be helpful if the ACMA liaised with and took into account the role, perspective and needs of content creators—artists and multimedia artists—in developing industry standards, the codes of practice which are referred to and the service provider rules.
We are also concerned about the principle of consistent treatment of essentially the same content, which is outlined in our short written submission. For example, proposed section 43 of the bill refers to the ACMA investigating complaints, and requires that the ACMA notify the complainant of the results. There is, however, no provision requiring ACMA to notify the content creator that a complaint has been made against their material, or that allows them to rectify it or to put their argument forward in relation to the material, or that enables them to appeal the decision which has been made.
We note that the carriage service provider will not always be the content creator. We are concerned about the lack of appeals process for the content creator. Our submission sets out the need for an appeals process for content creators such as artists whose work has been removed as a result of a take-down notice. Whilst the ACMA will be empowered under the bill to receive direct complaints relating to possible breaches of content provider service provider rules as well as possible breaches of the code of practice requirements, we ask that consideration of the artist as the content creator and their needs and interests are also met. Further, in the proposed section 47, take-down notices will be given to the service provider but the content creator, who could be an artist, will not be notified. There is no provision for this notification to be provided to the content creator who, as we have noted, could be an artist.
If material is referred to the Classification Board, for example, for classification, we note that the ACMA will pay the fee; however, will the content creator have the right to appeal any decision of the Classification Board or even make submissions when the Classification Board is reviewing material? This does not appear to be the case. Further, when stored content and ephemeral content services are to be pre-assessed, how will this affect the artist or content creator, and will they be able to have input during this process?
In conclusion, it is our submission that the proposed legislation does not adequately take into account the needs of filmmakers, multimedia and digital artists in Australia. The broad scope of the discretion available to carriage service providers for the refusal of access to certain material is likely to detrimentally affect both artistic expression and dissemination of that artistic expression. The proposed legislation does not in our view sufficiently cater for artists likely to be affected and fails to provide an appeals process or revocation avenue to content creators against whom an access decision has been made. Arts Law was not consulted during the DCITA consultation process and we submit that further investigation regarding the impact of these proposed changes on artists creating content needs to be further explored before the bill is adopted. Thank you.
Talk CHAIR—You said in your presentation that there was a lack of specific criteria and it was difficult to know when something would be prohibited. But in the explanatory memorandum it does say it is if material has been classified RC or X18+, or both, and goes on with a further list of classifications. What additional criteria are you seeking? Could you clarify that for me?
Talk Ms Giles—Where we are coming from is that a lot of multimedia artists or short video work artists—or sound artists, for example—might distribute their work just on the internet. It is not being shown in a cinema or anything like that, so to date it would not have to be classified before it goes up there. For many artists who work in that particular way, getting access to advice on whether their work would potentially be considered X18+ or R18+ or even MA15+ might not be feasible. So it is very hard for them to know whether their work would fit within those criteria, even though the Classification Board, the Office of Film and Literature Classification, provides guidelines on what those particular ratings are and how they would work. For many artists, getting access to someone who is able to provide an opinion on how their work would be classified is difficult.
Talk CHAIR—Even so, any artist could access what those classifications prohibit. That must be on record and easily accessible.
Talk Ms Giles—Certainly, and that was the reference I was making to the Office of Film and Literature Classification in terms of the points that they make about each particular rating. But, for many artists, it is difficult to work out whether their work is a piece of cutting-edge art or whether someone else would think that, for example, it is R18+.
Talk CHAIR—I would not have thought it was all that difficult really, if you have the precedence of what the Classification Board is prohibiting, to get a pretty fair idea of whether or not a piece of work is likely to fall under the same kind of criteria or not.
Talk Ms Giles—But we only have to look at certain films, for example, where there are disputes over whether an R18+ rating is appropriate or not. Different jurisdictions might rate films differently. So there can be discrepancies in terms of how things might be viewed.
Talk CHAIR—As a final point, I agree that at the periphery there is doubt, but there would be clear-cut cases as well, which I would have thought would make up the bulk of the work that we are dealing with in this matter.
Talk Ms Giles—Certainly, but when we are dealing with the kinds of clients who we deal with at Arts Law—who are perhaps involved in cutting-edge art—that might be different from other sectors that you are referring to.
Talk Senator WORTLEY—Thank you, Ms Giles, for your submission and your opening statement. You said that the industry which you represent was not consulted, and that was going to be my first question. When did you first become aware of the bill? Was that your reference to the Sydney Morning Herald and Crikey?
Talk Ms Giles—Yes, we first became aware of the bill in March 2007 when it was reported in the Sydney Morning Herald and on Crikey that the bill was available. I believe that Crikey leaked a copy of the bill, but it was a very old draft. We contacted DCITA and asked if we could be provided with a copy of the bill and that we would be happy to make submissions on behalf of the arts community. We were informed that there were no further consultations taking place.
Talk Senator WORTLEY—This bill will, as you suggest, affect artists who use content convergent technologies in their work. What percentage of artists in Australia would you consider would be affected by this bill?
Talk Ms Giles—I do not have any figures in front of me. The bulk of people whom we advise at Arts Law fall within the visual arts area, and a small percentage of those artists work with multimedia or video art procedures in disseminating their work. It is a smaller part of the arts community, but it is definitely growing. Many young students at art schools, for example, are very interested in video artwork. They are very interested in sound and short video works, and the internet is one of the ways that they can distribute that work at a low cost.
Talk Senator WORTLEY—Can you explain the effect this bill will have on their work? I know you touched on it in your opening statement, but could you provide us with a little bit more information about the impact that you think this bill will have?
Talk Ms Giles—I think it creates a complex environment for artists who upload their work to carriage service providers, whether that is by mobile phone distribution or the internet. It means that they will need to seek more advice in relation to their work before it goes up and, as you can see from our submission, the present system which is put forward in the bill would be difficult for them to negotiate. The lack of an appeals procedure would mean that they may have no recourse if their work is taken down.
Talk Senator WORTLEY—Is it fair to say that this is a growing medium?
Talk Ms Giles—Definitely.
Talk Senator WORTLEY—So this bill will have a potentially greater effect in that it will potentially restrict this medium of art from developing?
Talk Ms Giles—Definitely.
Talk Senator WORTLEY—Do you consider that artists should be exempt from the bill?
Talk Ms Giles—Perhaps that would be one way of going forward—an exemption for artists or an appeals procedure which is easy for them to access.
Talk Senator WORTLEY—Would you propose an amendment that there be an appeals procedure? How do you consider artists being able to access this in an effective way so as to be able to do their work?
Talk Ms Giles—As we put forward in our submission, if there were an appeals procedure that artists could access when their work is taken down rather than the focus being on the complainant and the carriage service provider, then that would provide some equality in terms of giving the artist access to that appeals procedure. But Arts Law recognises that there is obviously community concern about things which are on the internet. So that or, as you have suggested, providing an exemption for visual arts are perhaps ways of balancing it out.
Talk Senator WORTLEY—Could you explain in a bit more detail how you envisage this appeals procedure would work?
Talk Ms Giles—We have not had time to look at that in detail. However, if we look at sections 43 and 47, we see that perhaps amendments could be included which allow the content creator to access an appeals procedure in the same way that the complainant can access some kind of complaints procedure.
Talk Senator WEBBER—I want to go back to when you first made contact with the department. You said that they told you that the consultation process was over. They are appearing before us later on today. Did they give you any information about what consultation they had undertaken, who they had spoken to and the time line, or did they just say, ‘Too bad, so sad, too late’?
Talk Ms Giles—I was told that they consulted with some industry groups and other media groups but I was not given any further information than that.
Talk Senator WEBBER—So it was a pretty short and sharp conversation with them then?
Talk Ms Giles—I would not describe it as short and sharp but I was told there was not to be any further consultation until the bill was tabled in parliament.
Talk Senator WEBBER—Did they give you any information about when they started their consultation process?
Talk Ms Giles—No.
Talk Senator WEBBER—It seems to me that they have consulted with the people who are going to convey the content but not with the people who are going to create the content, particularly in emerging technology, so perhaps our consultation process is not keeping up with creativity and new technology.
Talk Ms Giles—That is the view that we take as well.
Talk Senator BIRMINGHAM—You have expressed concerns about the requirement to respect community standards and how community standards may be assessed. Obviously it is a difficult thing to put down in legislation. You understand the objects of this bill and I imagine probably support those objects insofar as they seek to provide some protections. How would you suggest that is changed to address a clearer definition of community standards?
Talk Ms Giles—We would need further time to look at that. Perhaps, if we were given further time, we could provide a proposal.
Talk Senator BIRMINGHAM—You and a couple of others have expressed concern about the provisions for access to works to be removed based on them having essentially the same content. Could you just take me through that concern in a little more detail please?
Talk Ms Giles—Our concern is that, if perhaps one work were considered to fall into the scope of being potentially prohibited material, this particular provision would mean that all other works of a similar nature, even though there may be differences, would also fall into the same barrel.
Talk Senator BIRMINGHAM—Thank you.
Talk CHAIR—Ms Giles, thank you very much for appearing and for that evidence.
Talk Ms Giles—Thank you for your time.
[8.57 am]
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STANDING COMMITTEE ON ENVIRONMENT,
COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS: Communications Legislation
Amendment (Content Services) Bill 2007: Witnesses
Date 01 June, 2007
Committee STANDING COMMITTEE ON ENVIRONMENT, COMMUNICATIONS, INFORMATION
TECHNOLOGY AND THE ARTS
Reference Communications Legislation Amendment (Content Services) Bill 2007
Place Canberra
Page 6
Proof Yes
Database Committees Considering Bills
Source Senate
ALTHAUS, Mr Chris, Chief Executive Officer, Australian Mobile Telecommunications Association KANAK, Ms Debora, Manager, Policy, Australian Mobile Telecommunications Association INMAN-GRANT, Ms Julie, Regional Director of Internet Safety and Security, Microsoft Corporation BEAN, Ms Trudi, Corporate Counsel, Optus van BEELEN, Mrs Jane, Deputy Director, Telstra Regulatory, Telstra Corporation Ltd
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STANDING COMMITTEE ON ENVIRONMENT,
COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS: Communications Legislation
Amendment (Content Services) Bill 2007: Discussion
Date 01 June, 2007
Committee STANDING COMMITTEE ON ENVIRONMENT, COMMUNICATIONS, INFORMATION
TECHNOLOGY AND THE ARTS
Reference Communications Legislation Amendment (Content Services) Bill
2007
Place Canberra
Questioner Senator WORTLEY; Senator BIRMINGHAM; Senator IAN MACDONALD;
CHAIR
Responder Mr Althaus; Mrs van Beelan; Ms Bean; Ms Inman-Grant; Mrs van Beelen
Page 6
Proof Yes
Database Committees Considering Bills
Source Senate
Talk CHAIR—Welcome. Would the Australian Mobile Telecommunications Association like to make an opening statement?
Talk Mr Althaus—Thank you and good morning. I will give you a brief outline of some of our key thoughts on the matter of this legislation, and my colleagues will add to that. It is certainly important to note that AMTA is the peak organisation for the mobile telecommunications sector and we welcome the opportunity to participate in this inquiry. We have a keen interest in this bill. We broadly support the principles that it is seeking to convey. There is nothing more important than the protection of particularly minors. The mobile telecommunications sector is working hard on that as convergence brings forward further challenges for us all in terms of how our product and services relate to the subscriber base. Of course, the subscriber base in mobile telecommunications in this country is reaching what we describe in the industry as almost saturation point. We are at a point now where there are over 19.7 million subscriptions in this market, so it is an incredibly pervasive technology and, of course, we have more and more opportunity through the third generation of mobile telephony to access and participate in a wide range of content.
The industry has not been idle on this matter; in fact, in response to the mobile premium services determination we have over the last 2½ years been working on a mobile premium services industry scheme. We were always aware that the determination was an interim measure, pending the development of this legislation, but the scheme the industry has put together addresses many of the concepts and issues that the legislation seeks to address. In fact, the presence of the scheme itself is a good example of how this industry works with government—and works successfully, can I say—insofar as legislation of this kind sets general parameters or general principles and, because of the speed and dynamic nature of change within the industry, we are often asked in a co-regulatory way to adopt schemes and codes underneath the legislation to monitor and manage industry performance. That is a very important part; it gives the industry an incredible amount of flexibility and also bestows upon us an important level of responsibility. To date, I think we have proved to government that we are skilled at meeting the responsibilities of legislation under these codes and schemes. I am highlighting that because this particular legislation and the existence already of our mobile premium services industry scheme, which has been registered by the Communications and Media Authority, is a classic example of a good workable partnership between industry and government.
This is an incredibly important area and we certainly support the objectives of this particular legislation. While being supportive broadly, we have identified some areas where further clarity and certainty are required for industry. My colleagues will go to those points. But if I can finish on the clarity and certainty issue, that is certainly what is paramount, and to that end there are a few drafting issues we have identified which I will ask Jane to comment on.
Talk CHAIR—Thank you.
Talk Mrs van Beelan—As Mr Althaus said, industry supports the bill and supports the objectives of the bill. Industry is also supportive of the changes to the objectives of the BSA to reflect that these services need to be regulated but in a way that is not going to impose undue financial or administrative burden upon the industry and in a way that will enable the services that are enabled by the technology to flourish. To that end, we want to draw to your attention to a few drafting concerns in respect of which we would seek some clarification or in respect of which it would be helpful if the bill provided greater certainty to industry.
The first of those is in relation to the definition of a content service. The principal concern is the use of the word ‘delivers’ in paragraph (a) of the definition of ‘content service’. The reason for the concern is that the word ‘delivers’ connotes, I suppose, the concept of transporting something. In the new media world there is a situation unlike that in the broadcasting world. In the broadcasting world if you get a broadcasting licence you get not only a licence to provide the content but also, attached to that, an apparatus licence, which is effectively your licence to use radio communications spectrum to deliver your content, and the two are welded together as a broadcasting licence. In the new media world, the content service provider and the provider of the infrastructure or services which facilitate the delivery or the making available of that content are, in most circumstances, separate entities. That means that the use of the word ‘delivers’ just creates some uncertainty about the extent to which carriage service providers who may provide additional facilities to carriage but are nonetheless not involved in the making available, as in the selection and the putting online, of the content may inadvertently capture them as content service providers and even commercial content service providers.
AMTA recommends that this could be addressed by changing the word ‘delivers’ to ‘makes available’. That removes that transport component of the definition and makes it clear that it is someone who makes it available—that is, puts it in a place like a server or a play-out centre whereby it can be delivered or is made accessible by use of a carriage service provider. We think that would more clearly distinguish the role of the content service provider from that of the carriage service provider, who may provide other things. We note the exemption in clause 5 that you are not held to be a content service provider merely by virtue of providing a carriage service, but we point out that there are circumstances in which mobile carriers do provide more than a carriage service but are nonetheless not involved in the selection and making available of the content. For that reason we are concerned about that uncertainty.
I will move on to the next point that I think will be helpful. The second key thing I draw to your attention is the practical difficulties in complying with a special take-down notice. The special take-down notice is where ACMA can issue a notice requiring, for example, the content host not to host similar types of content. The obligation that seeks to impose is very broad, and the impact of it may be that it requires a content host to continuously monitor the content that it is hosting. Our understanding of the regime set up with the take-down notices is that it is not meant to require content hosts to undertake continuous monitoring; rather, they are meant to respond to take-down notices when the notices are received. That reflects the fact that continuous monitoring would be unworkable and incredibly onerous and that it is not appropriate to put content hosts in a situation where they are the judges and censors of the content. So AMTA has requested some clarity there—for example, that the special take-down notice identify the specific person whose content is not to be hosted rather than be so indefinite as to impose onerous obligations on the content host.
The final key drafting issue that I draw to the committee’s attention relates to the difficulty we see in achieving a type A or a type B remedial situation—again, the best example is probably in relation to hosted content. Firstly we note that there is not a definition of ‘host’ in the bill and so it would be a concern if the obligation not to host the content actually required the content host to remove all copies of the content that it may have on its systems. It may be that it has some copies stored but not hosted—as in not stored in such a way that they are accessible to the public—and it may be that the service provider needs to retain those for various business reasons, including the reason potentially that they have concerns about the way the legislation is applied to them. That problem could probably be rectified by having a definition of ‘host’. The second issue is that the broad drafting of the second limb, where it would effectively require the content host to ensure that that content is not available anywhere on the internet, is clearly unworkable; it is not something that a single content host can achieve. It would be better if the provision or requirement were an obligation on them not to themselves host that particular content.
They are the key drafting concerns I wanted to raise. There are others recorded in our submission which I am happy to talk to if necessary, but I thought articulating those would be helpful to the committee. I will now hand over to Ms Bean, who is going to talk about the restricted access system issues.
Talk Ms Bean—I am going to speak on both the restricted access system and deal a little bit with the Mobile Premium Services Industry Scheme and its relationship to the determination. ‘Restricted access system’ is not defined in the bill, and mobile operators are quite familiar with operating restricted access systems now. It is clear that there are two requirements: the identification of the customer and the ability to verify their age. Currently, when we offer credit services to our customers, when we do a credit check, mostly those customers have to be over 18 to get those services; in fact, we even have a credit reference. Our research shows that over 99 per cent of customers are over 18 once they have those mobile services. So we have a high degree of certainty that a customer receiving an account with a telecommunications provider is over 18. In the case of customers who do not have accounts, who have prepaid services, the ability to check their age by requiring them to do a credit card transaction would ensure that they over 18 and, currently, the internet industry does that. They use credit cards to verify that the provision of adult content is to people over 18.
Our main concern is that, because ‘restricted access system’ is not defined, ACMA, who has the ability under the bill to approve such systems, is not confined to looking at current industry practice or what is practical. So on the issue of clarity and certainty we are quite concerned that existing systems that make us feel quite confident may not meet the approval of ACMA. So clarity in that area is really desirable from an industry point of view.
I would like to touch now on the determination that currently exists, the Telecommunications Service Provider (Mobile Premium Services) Determination that was issued by ACMA. Because of that determination, the industry has developed the Mobile Premium Services Industry Scheme, and that scheme currently regulates content as well as providing consumer protection measures, such as being able to stop premium services subscriptions once you have subscribed to them if you no longer want them and other billing issues.
It is desirable to have only one content regulator or one set of content regulations for premium services and other material that is provided by our industry or by our content providers. Our suggestion is that the bill is the appropriate mechanism for dealing with that content because it will deal with a range of material and because uniformity of classification and approach to content is appropriate, rather than having a variety of schemes. So, clearly, the determination needs to be clarified—and, as Mr Althaus said, it was considered to be an interim measure to start with. While the consumer protection measures do need to be preserved and also the complaints system that operates, allowing consumers to make complaints about premium services operators who do not comply with the scheme, the regulation of content needs to be clarified so that we are not faced with increased burdens in terms of the operation of our businesses.
Talk CHAIR—Thank you very much. Now, Microsoft.
Talk Ms Inman-Grant—Thank you, Chair. In my capacity as Microsoft Corporation’s Regional Director of Internet Safety and Security, I work with government policymakers, law enforcement, NGOs and consumers in 13 countries across the Asia-Pacific region. It also bears mentioning that I am making this testimony on behalf of Microsoft Corporation as an offshore provider based in the United States, rather than Microsoft Australia, which does not host content—and also not on behalf of ninemsn, which is the joint venture between Microsoft’s MSN and PBL, which does host content in Australia. Ninemsn would potentially be regulated very differently from Microsoft Corporation under this particular bill, and ninemsn did make their comments and concerns known through the Internet Industry Association’s submission, so their concerns were certainly taken into account.
As a first matter, let me say that Microsoft understands and shares the concerns of the department and the parliament in relation to the exposure of Australians, particularly young Australians, to illegal and offensive content. While the economic and social benefits of the internet are undeniable, it is also true that the internet provides a means for inappropriate access to offensive material and, in some cases, can facilitate criminal activity. We also believe that the content services bill is one of the most sweeping reforms of its kind. Given Australia’s role as a policy bellwether in the region—particularly in the internet safety space—we believe that the precedential impact for future laws and regulations developed in the Asia-Pacific is very important and tied to the outcomes of the development of this bill. The only possible example of other similar legislation is the audiovisual media services directive that is currently pending in the European Commission. It is expected to be considered in June this year.
For its part, Microsoft invests heavily in technological solutions; consumer education and partnerships with government, NGOs and law enforcement to ensure that such content is not provided using our services; and in providing consumers with the tools to control their and their children’s internet experiences. Examples of this in Australia include our participation in the national e-security education week; our planned launch of the ‘think you know’ internet education safety program, in cooperation with the Australian Federal Police, ACMA and NetAlert; and a broad range of recent law enforcement training we have conducted in Australia, including one that we did in conjunction with the Queensland Police, Interpol and ICMEC, the International Centre for Missing and Exploited Children, on helping over 100 Australian law enforcement officials learn more about how to track down online paedophiles and predators.
Microsoft’s perspective in relation to this bill is as a provider of content services that are hosted offshore, principally in the US. These services are numerous, and I am often confounded and confused by them. They include: Windows Live Hotmail, our email service; Windows Live Messenger, our internet messaging service; Windows Live Spaces, which is our social networking or blogging site which is very similar to the MySpace social networking site except for some very different safety concerns and architectural differences; MSN Video, which would be akin to Google’s YouTube, which provides user-generated content through video; and Xbox Live, which is our online, interactive, simultaneous gaming platform. All of these services are used by hundreds of Australians every day.
Microsoft believes that the existing schedule 5 of the BSA, which focuses on regulating offshore content providers to the extent that they host content in Australia, is a very pragmatic and reasonable approach. Our interest in the content services bill and the current bill is to ensure that we can continue to provide our content services to consumers on a global basis on substantially the same terms and that Australia’s approach harmonises with that of other jurisdictions. The government, both DCITA and Minister Coonan’s office, have been very open and receptive to our comments and understanding of our concerns. We were not initially invited to participate in the limited consultation. We requested specific permission, and they did grant us that. So we are very appreciative of that willingness.
One of the concerns we outlined, both in the exposure draft and in the current bill, was the potential application of the bill to offshore links. Service providers could encompass Microsoft where a user of one of its services, rather than Microsoft itself, creates a link to prohibited content hosted in Australia. An example is used in our submission in section 3.2 where a user of Windows Live Spaces could create a link that is hosted in Australia. That would be beyond our knowledge or editorial control. Ostensibly the individual or group who has hosted the content would be under the purview of the bill.
Secondly, we believe there is significant ambiguity in the Australian connection definition—although it is an improvement on the Australian link definition that was included in the exposure draft—because it does not specify how to identify where live content originates. This potentially impacts on a number of Microsoft services. This may be a different concern to those expressed by our AMTA colleagues in that live content potentially could be generated interactively amongst a number of people from different jurisdictions around the world—for example, you could use an Xbox Live multiplayer game where you could have players from Australia, the US and Japan. Ostensibly a move made by an Australian player to go up a hill or shoot a dart could be considered live generated content originating from Australia even though it may be a negligible part of the overall live content being streamed.
Our third concern is with the definition of the term ‘content services’. Because of the structure, it is a broad definition with 22 significant exceptions. We believe there is significant scope for unintended consequences to flow from this approach as technology and new services evolve over time. Certainly if you think two or three years back, things like social networking were not really mainstream activities—and there is potential for new and unexpected services to emerge. Just this week, Microsoft introduced a product called Microsoft Surface, which is actually an interactive computer tabletop which is touch based. It is very much like what you use at an ATM. They expect that, in the next three years, this sort of tabletop computer will be embedded as a delivery platform into refrigerators and microwaves and will be among a multibillion-dollar industry. The possibilities are endless. We certainly appreciate the complexities that go into drafting something and trying to anticipate the types of services and uses of content going forward.
In section 5.2 of our submission we recommend as a first option narrowing the basic definition of content services to encompass the types of content services to be regulated, and perhaps these could be reviewed over time. As a second option we suggested in section 5.4 applying a dominant feature test. A number of these current services, an example would be instant messaging, can be used as a voicemail chat, email or text chat, and also as a file-sharing mechanism. If you apply the dominant test to the service, that would allow for an easier interpretation and application of the content service definition to one or more of our services. In any case, I kindly ask that you do refer to the written submission for more detailed information. I am certainly happy to answer any questions that the committee might have. Thank you.
Talk Senator WORTLEY—Thank you for your submissions and for appearing here today. My first questions will be directed to the AMTA and then I will move to Microsoft. If at any time I ask a question that is relevant to your area then feel free to jump in and give an answer. Do you think this bill will adversely affect the growth of the mobile telecommunications industry in Australia?
Talk Mr Althaus—Our work on the bill has been fairly extensive and we do not believe it would adversely affect growth. Having said that, it is a very dynamic sector. I guess I would go back to the notion of this kind of legislation being broad in its scope. My colleague from Microsoft has just given a couple of very good examples of the speed of change within the telco sector, and that is increasing with convergence. So our ability to be flexible and take growth opportunities, and not be limited by legislation, is very closely linked to the broadness of the legislation. Our assessment of this particular bill is that it is not going to limit our opportunities for growth.
Talk Senator WORTLEY—AMTA says that there are some technical issues in the drafting of this bill. Is that right? You say further that the definition of content service vis-a-vis carriage service requires clarification. Does clause 5 not provide sufficient clarification in AMTA’s opinion?
Talk Mrs van Beelen—As I said in my opening remarks, the concern with clause 5 is that on one reading it provides an exemption if all that you do is provide carriage, but there are a number of examples where a mobile carriage service provider may, for example, also provide a billing service for the content. That is not to say that they have anything to do with the choosing or the making available of the content but they do have the mechanism to bill for the content via the bill for the mobile service. There is some uncertainty about whether they would still fall within the exemption in clause 5 by virtue of the fact that they do more than provide a carriage service. If you like, I can articulate an example by reference to Australia Post. They are not responsible for the content of the letters that they carry, that is clear, but they do provide billing services for the gas and electricity companies et cetera. That does not make them responsible for the gas service. In the same way we need to be very clear, because mobile carriage service providers may provide carriage and billing services and perhaps other services which are nonetheless not related to the provision of the actual content, that they are not caught as content service providers by the bill.
Talk Senator WORTLEY—In your submission you also address restricted access systems. Can you explain why you have concerns about the provisions relating to the restricted access systems? I acknowledge that you did that to some degree in your opening statement but could you provide some more detail with regard to that?
Talk Mrs van Beelen—The main concern is that a restricted access system, which as defined in the bill, is required in respect of restricted content but the definition merely refers to that which ACMA says is a restricted access system. There is one criterion, I think, which is that it has to be a system that ensures that children cannot access restricted content. But it is not clear what ACMA would determine is a restricted access system. It is not clear to what extent ACMA would take into account what industry is already doing, or whether ACMA might seek to impose any more onerous requirements on industry in order to determine that what industry is using as a restricted access system actually is one for the purposes of the bill.
Talk Senator WORTLEY—At this stage do you feel that there needs to be more clarification with regard to a restricted access system?
Talk Mrs van Beelen—It would be helpful if there were some greater clarity as to what ACMA’s decision-making criteria would be in determining what constitutes a restricted access system for the purposes of the bill.
Talk Senator WORTLEY—Is there one type of restricted access system that would adequately achieve the bill’s objectives?
Talk Ms Bean—I do not think there is one type and that would limit operators, but generally operators have systems that identify a customer and also obtain their age either by requiring date of birth for identification or by production of a credit card. I think it would create expense on industry if only one system was set out in the bill because of the variety of systems we are already using.
Talk Senator WORTLEY—Can you think of a restricted access system that can adequately or accurately verify the ages of those young people aged between 15 and 17?
Talk Ms Bean—The production of a credit card because they have to be over 18 to have one.
Talk Senator WORTLEY—What about those between the ages of 15 and 17?
Talk Ms Bean—No, there is not a system that will do that unless we ask them to make a declaration or if their parents authorise them to have use of material based on their age.
Talk Senator WORTLEY—Do you think that the proposed provision will serve to protect these children?
Talk Ms Bean—Yes, I do because those children are not going to have access to material that is not appropriate for them because the restricted access system will require the account holder to approve their use if they are a user of a service.
Talk Senator WORTLEY—I refer to clause 47 of the bill, which refers to the fact that ACMA can, following a successful investigation into the hosting of prohibited content by a hosting service with an Australian connection, direct a hosting service provider to take steps to ensure a type A or type B remedial situation. This clause runs over 3½ pages and contains subsections, so it would appear that the government has gone to some length to set out action to be taken in relation to hosting services in breach of the bill. Notwithstanding their efforts, can you explain what a type A or type B remedial situation is in lay person’s terms?
Talk Mrs van Beelan—I can try. A type A situation exists where the specific provider to whom the take-down notice is addressed does not host the content that is the subject of the notice or:
(b) the content is not provided by a content service provided to the public.
It is subclause (b) that we have an issue with. Basically, as we read it, if you receive a take-down notice, you are required to cease hosting the content or otherwise ensure that the content is not made available.
Talk CHAIR—Which clause is that?
Talk Senator WORTLEY—I am reading from clause 47(6). I have noticed that throughout some of the responses there have been comments saying, ‘As we take it,’ and so on. Is it fair to say that this clause is unclear and that it could or should be further clarified?
Talk Mrs van Beelan—That is one of the things that we have asked for clarity on. It is not clear to us how a content host could otherwise ensure that the content is not made available. That is not going to be within their control.
Talk Senator WORTLEY—How would you clarify it?
Talk Mrs van Beelan—We did make a suggestion on that. I will refer back to my comments. As I said, the first issue we raised was that of definition of ‘host’ and what that means. The second one was about making it clear that, having defined ‘host’, the host is required to cease hosting the content. It seems to me that that is what is within the realm of the control of the content host.
Talk Senator WORTLEY—I am going to go back one step to the questions regarding the restricted access for people between the ages of 15 and 17. You were saying that credit cards would be a way of ensuring that. Credit cards are provided to people over the age of 18, so how do those people between the ages of 15 and 17 verify their age?
Talk Ms Bean—Those people would not be able to have access to the content unless the account holder of the mobile service authorised their use.
Talk Senator WORTLEY—Unless the account holder of the mobile service provided them with their credit card details?
Talk Ms Bean—No. Unless the person who was operating the mobile account or was in control of that account authorised them to be a user on that person’s account. An example would be that a parent has a mobile account and they allow their child to have a mobile service, so there are two mobile services operating on the one account. But we will require the account holder to authorise those people who are users on the account to have access, or not, based on their—
Talk Senator WORTLEY—And if they were authorised, can that access be restricted to that age group—up to 17 but not 18? Are there provisions for that?
Talk Ms Bean—Not currently.
Talk Senator WORTLEY—So if the mobile phone account holder provided access on their account, say, to a 15-year-old, that would automatically give them access to material that is not suitable for—
Talk Ms Bean—That is behind the restricted access system.
Talk Senator WORTLEY—Perhaps we will just move on from there. Before we do, is there any way to address that that you can think of?
Talk Ms Bean—I think the restricted access system is not subtle enough to allow content that is directed only to 15- to 17-year-olds. That content—MA15+ content—will be behind the restricted access system, because of the concern of the community and operators that people between 15 and 17 do not have unrestricted access to it. It clearly needs to be within the control of a person over 18—a parent, guardian or other person who is over 18, not allowing people under 18 to give access to the material. I think restricted access systems currently are not subtle enough to allow material to be directed just to 15- to 17-year-olds. As you have highlighted, the difficulty in determining the age of those people would make such systems very complicated and expensive.
Talk Ms Inman-Grant—You have put your finger on something that would be considered a global conundrum, because there currently really are not technologies that are capable of proving that a child is a child. You can prove that an adult is an adult through credit card verifications. There are some pilots in the US and other places that we will be looking at. In the US you can drive at age 16, so you could potentially look at driver’s licences as a way of at least verifying from 16 and over. There are of course a lot of privacy concerns related to that. The other option that we are looking at is doing a pilot with schools. Schools are really the only bodies at this time that probably have the names, ages and identities of children—but again there are numerous other safety and privacy issues associated with that. So I think it is a conundrum that we are going to have to really look at and grapple with very closely.
Talk Senator WORTLEY—When you say you are looking at doing a pilot, do you have any idea as to how long it will be before you get the results?
Talk Ms Inman-Grant—It depends on how limited the pilot is. It could be a matter of six months to a year, but it is something that our leadership at the very top of the company is looking at. We have got an application called CardSpace, which is an authentication mechanism. Clearly identity management is an important issue in Australia and elsewhere, so we are looking at ways that we could use this platform, which is open and can use a number of different types of age and identity verification systems going forward. But I would say that the technology and the systems are not mature yet anywhere in the world.
Talk Senator WORTLEY—I would like to move on to interim or final take-down notices. Can you explain AMTA’s understanding of how this provision, which is section 52 of the bill, would work.
Talk Mrs van Beelen—I have section 52 as the special take-down notices.
Talk Senator WORTLEY—Maybe it is section 51, but perhaps we can touch on both of those. What is your interpretation of how that would actually work?
Talk Mrs van Beelen—Section 51 is about the revocation of final take-down notices, on my copy.
Talk Senator WORTLEY—While that is being checked, could you talk about the special take-down notices and then we will move on to the interim or final take-down.
Talk Mrs van Beelen—That is the one that we have raised some concern about. A special take-down notice, as we understand it, would be issued if ACMA had concerns that content of a similar nature and that which raises similar concerns to that which had been the subject of a take-down notice might be posted—potentially as a substitute in an attempt to avoid the specific provisions of the take-down notice. That is what we understand to be the trigger for the issue of the notice. The content host, for example, would be required to achieve a type A or a type B remedial situation in relation to that content. It raises some issues as to how ACMA is going to know that that content is going to be put up and, likewise, how the content host is supposed to know that that content is going to be put up and therefore prevent it from occurring. It is conceivable that similar content could be put up by somebody completely different. It could be put up by the same content service provider. It just seems to me that that clause raises some concerns for industry about exactly what might be required of a content host upon receipt of that notice in order to comply with it, given that ‘similar content’ is quite a broad concept and a content host is not in a position to know the nature and substance of the content that it is hosting. That is why we have a take-down regime which is directed to specifically identified content. While we understand and appreciate that we would not want the regime to be able to be easily avoided, there is some concern that the provisions here are going to impose onerous obligations on hosts.
Talk Senator WORTLEY—How do you see it working in the instance of an aggregated content site? From what you have read into the bill, who would have to comply with the notice—the host site or the producer of the content?
Talk Mrs van Beelen—What we understand is that it would be directed at the host, and therein lies the concern.
Talk Senator WORTLEY—Do you think that there is any way that a content host could know in advance that a content provider was proposing to host content that is the same as or is substantially similar to the content identified in an interim or final take-down notice.
Talk Mrs van Beelen—It is not clear to us how that would be the case.
Talk Senator WORTLEY—How would you propose the government clarify this provision?
Talk Mrs van Beelen—We have suggested that if a take-down notice has been issued in respect of content supplied by a particular content service provider, then, perhaps rather than just saying ‘similar content’, the notice could specify similar content as being ‘content similar to that referred to in the take-down notice you have already received and supplied by the same content service provider’. That would at least narrow the operation and therefore the activity that the content host would need to undertake. It is actually quite a difficult one—particularly in relation to user generated content, I might add. I know a number of submitters to the committee have suggested the exemption of user generated content, but it is potentially quite difficult to comply with something like this when you have got user forums.
Talk Senator WORTLEY—I would like to move on to telecommunications service provider determination. You say in your submission in your opening statement that the effects of the MPSD are unclear. Were you consulted about the effect of the bill on the MPSD prior to the release of the bill?
Talk Ms Bean—We were consulted about the bill but not specifically on that question, and so we have raised that ourselves.
Talk Senator WORTLEY—You said that you were consulted about the bill. Were you aware that this was going to be included?
Talk Ms Bean—Sorry?
Talk Senator WORTLEY—Were you aware there were going to be issues around MPSD?
Talk Ms Bean—Once we started looking at the bill ourselves we drew attention to the potential conflict where both the determination and the bill were regulating the same material and our suggestion is that the bill takes that over. In fact, the way the mobile premium services industry scheme operates, complaints go to the complaint body that has been appointed as the telecommunications industry Ombudsman. The Ombudsman’s office is well practised in dealing with the consumer protection part of these complaints—complaints about billing, complaints about content providers not stopping subscriptions when asked to and so on—but they are not an appropriate body to be making decisions about content and appropriate classification.
So, as part of the set-up of the scheme, we have had some discussions between the Telecommunications Industry Ombudsman’s office and ACMA about how complaints would be handed off to ACMA to deal with content. This bill in fact clarifies, or could clarify, that issue very clearly so that content is dealt with by the bill and the determination then is amended so that content is no longer covered.
Talk Senator WORTLEY—It does clarify or it could clarify?
Talk Ms Bean—No, the bill does not clarify it yet, but our proposal is that the bill should do that. If content is going to be dealt with under the bill then our proposal is that the bill should make clear that it is the one that deals with content and not the determination.
Talk Senator WORTLEY—So there would need to be amendments to clarify that?
Talk Ms Bean—Correct.
Talk Senator WORTLEY—When I asked you if you were consulted about the effect of the bill on the MPSD prior to the release of the bill, you said you were consulted. When you received the bill, you then became aware that there were issues. Is that correct?
Talk Ms Bean—We were not asked that question specifically; that is all I was saying. We were given ample opportunity to be consulted and to give back our comments about the determination and the way the bill and the determination operated and the conflict that existed. So, yes, we were consulted.
Talk Senator WORTLEY—Are you aware if anyone else in the mobile industry was consulted in respect of the MPSD?
Talk Mr Althaus—The bulk of the consultation took place through the AMTA group, which represents all facets of the industry.
Talk Senator WORTLEY—Was that prior to the release of the bill?
Talk Mr Althaus—Yes. During the development of the bill we were in discussions with the department and the minister’s office on elements of the bill.
Talk Senator WORTLEY—So you were consulted; you now have the bill before you—but those issues were not raised previously?
Talk Mr Althaus—We had a range of discussions on the bill as the development process took place, but, as with every piece of legislation, when the final product hits the desk there are ongoing issues that we want to discuss, and the relationship with the determination is one of those.
Talk Senator WORTLEY—So what effect do you think the bill will have on the MPSD?
Talk Mr Althaus—Our core concern is that, in the regulation of this aspect of the industry, we do not end up with too many layers of regulation that are confusing to industry and reduce the level of certainty under which we operate. So I think, as my colleagues have outlined, our interest is in clean and clear, certain regulation. To that extent, we need clarity on the relationship between this bill and the determination, and it is our view that ultimately it should be the bill that carries the load.
Talk Senator WORTLEY—How could these effects be best managed?
Talk Mr Althaus—Like we said, the nature of this legislation in a very dynamic sector is always going to be quite problematic. I think the government has taken the right approach in putting together a broadly based bill that gives industry—and government, for that matter—flexibility in terms of regulation and co-regulation with industry to deal with the dynamics of the sector. So we are keen for this approach to continue, we think this bill does a good job, we are on board with the objects of the bill and we look forward to working with the government to get a successful outcome.
Talk Senator WORTLEY—But your views are that this area needs to be addressed—it needs to be clarified?
Talk Mr Althaus—Clarity and certainty are very important. We have a new piece of legislation that is essentially taking over from a previous determination. We have done a lot of work under that determination and can see it makes sense that ultimately this bill is the primary guiding force in this context.
Talk Senator WORTLEY—You also have some concerns about the ‘Australian connection’ test in relation to links services. Can you explain those further?
Talk Mrs van Beelen—I do not think that the Australian connection is particularly articulated in relation to links services, and that is the basis for our concern. So I guess we would just seek some clarity on what, if any, test does apply for an Australian connection in relation to links services.
Talk Senator WORTLEY—Do you have any views on this?
Talk Mrs van Beelen—Only that whatever is imposed needs to be able to be complied with. We do not have any specific suggestions as to how that would be done—potentially, if the link is hosted in Australia. I note our colleague from Microsoft Corporation has highlighted some challenges that she is probably better qualified to speak to than I am.
Talk CHAIR—Do you want to make a comment on that—expand the whole issue, Ms Inman-Grant?
Talk Ms Inman-Grant—Yes. I think I will use the example of Windows Live Spaces, which is our social networking site. The challenge would be: the service is hosted in the United States but a user without our knowledge may have a link to a prohibited site that is hosted in Australia. Ostensibly, through this legislation, the government would have the power to regulate that particular individual group or that hosted site in Australia. Our concern is that in our read of the links connection services that prohibition would also apply to Microsoft, the offshore content provider, where we would really have no knowledge that this hosted link in Australia that was put up by the user was prohibited.
We take these safety concerns very seriously. We use filtering technology in all of our spaces that detect flesh tones. If the tool flags to us that there is any inappropriate content, particularly pornography or child pornography, it violates our terms of service and we will take down that offending link. We will preserve it for law enforcement. We will report it to law enforcement and to the National Center for Missing and Exploited Children. Clearly, this sort of offending content is a concern to us as a service provider, and that is not the type of service that we want to be hosting. We are just concerned with what could be interpreted as an overly broad interpretation of link service provider. If the US, the Australian government or otherwise lets us know there is offending content and we have the ability to take it down, we will. But, then again, we do not want to be ensnared in something that we do not have knowledge or editorial control of. Does that make sense?
Talk CHAIR—A little bit; not totally. You said you had a filtering system, which presumably applies to your American services. Are you implying that the kind of material which this bill is designed to prohibit could not be transmitted into Australia from the United States on your service?
Talk Ms Inman-Grant—The content—say, videos or Live Spaces—is actually hosted on servers in the United States that an Australian user may have put up on their MySpace webpage. It will actually be sitting on a server in the United States that the Australian consumers or users from around the world can access, so that filtering technology applies to all of the sites that are set up. We are concerned with some of the links. There may be a website link to a service that is indeed hosted in Australia that we would not have knowledge of and we would not proactively go through each space’s website and analyse whether the links that individuals have on their personal webpages comply or not. Does that make sense?
Talk CHAIR—Yes, it does. So the link material would not go through your system; it would be direct from the user to the link?
Talk Ms Inman-Grant—Yes. Again, ostensibly, if the user is in Australia or is using a prohibited site that is hosted in Australia, my reading of the bill is that ACMA or others would have jurisdiction to go directly after that link or site rather than going after Microsoft, which is hosting the content offshore.
Talk Senator BIRMINGHAM—How does your ability as an offshore provider of, say, live space with a link built in—the example being used there—differ from that of an Australian onshore provider to regulate what that link might lead into? Say it were MSN, your affiliate, that had a link there. Is there a point of difference there?
Talk Ms Inman-Grant—I do not think there would necessarily be a point of difference to the link. Every system is going to be different. There are some social networking sites that do not have a filtering service, or may not be proactively patrolling the sites to make sure they are clean. They may have different terms of services. But I think it would be very difficult, whether it is housed in the US or housed in Australia, to have the capacity to check every single link that is posted on a user’s individual webpage.
Talk Senator BIRMINGHAM—So whilst there may be difficulties for ACMA, or whomever, to actually regulate who is carrying links, if they are offshore, why is there any difference between what is carried onshore and what is carried offshore? Why should we exclude those links?
Talk Ms Inman-Grant—Again, the individual link has nothing to do with our service but may be posted on an individual’s webpage. There would really be no way for us to go through every link and be able to assess what is prohibited and what is not prohibited content, if it is hosted elsewhere. I guess the point we are really trying to make goes to how far this legislation extends its extraterritorial reach. We believe that the current schedule 5 takes a pragmatic and reasonable approach that we can and do live by and abide by. Our interpretation is that the way it is currently drafted could potentially extend its extraterritorial reach in a way that could prove to be cumbersome and difficult from a compliance perspective.
Talk CHAIR—This segment is scheduled to go until quarter past. I do not know whether Senator Macdonald has any questions of a legal nature.
Talk Senator IAN MACDONALD—I have a couple of questions, not necessarily of a legal nature. I heard you mention to Senator Wortley that you were consulted about this, but have you made these comments known to the department and the drafters?
Talk Mr Althaus—When the bill was introduced to the parliament we were able for the first time to see the finished product. Discussions on the issues that we have been raising have been ongoing during the process of the development of the bill. But, as I said earlier, to the extent that the final product was not available, as soon as it was we raised those issues again. To a large degree these are finetuning, drafting issues. We are also making it very clear to the department and the minister’s office that we do not want the bill to become overly prescriptive. Some of these operational issues will be dealt with by the operation of our scheme, in partnership with ACMA, but it is the clarity and some of the confusion, given the scope of this bill, that we have been seeking to address.
Talk Senator IAN MACDONALD—That is how I understand your submission. None of you object to the principles and the goals of the bill—in fact, you both support them.
Talk Mr Althaus—Absolutely. We are in this space already and these issues have been under determination for some years, to the extent that we finished our own mobile premium services industry scheme before this bill commenced. That scheme has been registered by ACMA and is in operation today.
Talk Senator IAN MACDONALD—Have you had feedback on any of these substantive issues from the drafters as opposed to the policy makers?
Talk Mr Althaus—We have discussed them, yes. In the very short time that we have had the bill we have had some initial discussions, but without conclusion. I guess we are using this process to air those more formally.
Talk Senator IAN MACDONALD—Not having been a lawyer—I do not think lawyers know too much, mind you. Have you had decent lawyers have a look at this? Perhaps some of you are decent lawyers!
Talk Mr Althaus—My colleagues to my right are part of that process; so, yes, we have looked at it in detail. One of the challenges here is part of that translation of operational pragmatism into a legal framework.
Talk Senator IAN MACDONALD—I cannot speak for the committee, but I think that so often the government has good ideas and good policy proposals but sometimes we fail to get the people on the ground to implement the policy proposal because the legislation is not thought through well enough. It is difficult for me to argue at great length on your suggestions, but it does seem to me—and I cannot speak for the committee—that a lot of your suggestions warrant further consideration by the drafters rather than the policymakers.
Talk Mr Althaus—I agree with that, Senator. There is a lot here that is finetuning. We think the bill has come a long way. We as an organisation and as a sector have worked very cooperatively with both the department and the minister’s office in preparations so far.
Talk Senator IAN MACDONALD—I should make it clear that I am not criticising the drafters, the minister’s advisers or the department in any way. Applying them on the ground is very often different to sitting in Canberra thinking about how they should operate. There are some other groups in your area that would be interested in these outcomes if the law were changed in this way. Are there others who might look at these and say that that has changed the approach?
Talk Mr Althaus—To give you an example, we are the peak group for the mobile telecommunications sector—
Talk Senator IAN MACDONALD—Is that for Optus, Telstra, Vodafone—
Talk Mr Althaus—Indeed; all the carriers and all the manufacturers are members of AMTA. In this increasingly convergent environment we, by definition, form alliances and relationships and interact with other sectors which are in the overall picture—for example, the internet group—and we partnered with the Australian Direct Marketing Association in the development of our premium services scheme. To the extent that we engage that way, we have a reasonable handle on what people are thinking in this context. We have been able to bring a lot of our views on the bill as it stands into our submissions. We do not speak for them by any means, but we have canvassed the space.
Talk Senator IAN MACDONALD—Would people like—these are examples only and I mention them because they are on the agenda—the Council for Civil Liberties and the Festival of Light often use you as a first line of approach for things they wanted to deal with?
Talk Mr Althaus—No, not necessarily. I am referring to us generally going out to other industry colleagues to drill into the operational implications of legislation of this nature.
Talk Senator IAN MACDONALD—I am sure we can ask both the Council for Civil Liberties and the Festival of Light these questions ourselves, but would any of you think that anything you are proposing would offend the broad approaches of either of those or other organisations—as I said, I am just using them as examples because they are on the agenda?
Talk Mr Althaus—We are in agreement with the principles and objects of this legislation. We are keen to have the pragmatic approach taken by the government to a very dynamic sector that is changeable and the protection mechanisms to protect younger Australians. We think this is a pragmatic approach, but we do not stop; we keep going as technology changes and other things become available. We look at them as they arrive.
Talk Senator IAN MACDONALD—The finer drafting principles are a bit too much for me these days, but would any of the people who have strong views on these things one way or another say to us, ‘They are just weasel words, trying to make it easier for them to avoid their obligations’?
Talk Mr Althaus—I do not believe so.
Talk Senator IAN MACDONALD—But you have not had any input from anyone else who might—
Talk Mr Althaus—No.
Talk Ms Inman-Grant—I do not have much insight into how the department or the minister’s office went about deciding which stakeholders would be part of the limited consultation. As I said to your committee colleagues earlier, we requested specific permission to participate and they very generously granted that to us. But there are some players in the Australian content industry that did not partake and I am not sure if that was by choice or by accidental omission. I am thinking of people like the game developers, the Interactive Entertainment Association of Australia and some of our offshore colleagues such as Google, YouTube, News Corp and MySpace, the major social networking sites. I would have thought that this legislation would have been very critical to their interests and needs. I was surprised that they did not partake, but I am not sure what the circumstances were.
Talk Senator IAN MACDONALD—Perhaps it means they are happy with it as it is.
Talk Ms Inman-Grant—It could be.
Talk Senator IAN MACDONALD—Very often because of timetables governments are not able to have the full consultation period, but this committee tries to help out in those areas whilst in no way wanting to interfere with the government’s general approach.
Talk Senator BIRMINGHAM—I have a general question. In terms of the content that is captured and restricted by this proposal, do any of you have any opinions as to whether it is the right balance or whether it captures too much or too little?
Talk Mr Althaus—That is a good question. Our view is that, again going back to the legislative regulatory model that we use, it is important that this bill is fairly broad. I do not think it goes too far, but certainly our ability to be nimble and react to changes over time is going to be embedded in how we manage our mobile premium services industry scheme. Key to that, and to a lot of this, is the relationship between industry and the Australian Communications and Media Authority. To the extent that that will evolve as this bill comes into law, we will be working in that regard, but we think the balance is broadly right at this point.
Talk Senator BIRMINGHAM—So you believe that the bill provides the flexibility for the industry to manage control of content through your industry structures into the future without being overly prescriptive?
Talk Mr Althaus—In partnership with the media and ACMA. Our own scheme extends that partnership to the TIO, the Telecommunications Industry Ombudsman, for other elements of monitoring this space.
Talk Senator BIRMINGHAM—I want to return very briefly to the issue of restricted access that Senator Wortley was speaking of. Obviously your concerns are that ACMA may come up with a system that is more onerous or more difficult than, for instance, in the 18+ sector, the current simple credit card check.
Talk Mr Althaus—That is right.
Talk Senator BIRMINGHAM—On the issue of the MA 15+ category and 15-year-olds to 17-year-olds, which is obviously carried over from media such as television, at present there is no filter or restriction on the access of 15-year-olds to 17-year-olds, or even those under 15, to such programs aside from parents’ control of the television set and the remote control, basically. That is a fair assessment, isn’t it?
Talk Ms Bean—I could just clarify that. Under the mobile premium services industry scheme that material is also within the restricted access system. So it is slightly more restrictive than broadcast media.
Talk Senator BIRMINGHAM—In your medium, it is more. How do you restrict that at present?
Talk Ms Bean—If I can just turn to my notes about how the systems are operating. All mobile accounts are automatically defaulted to ‘blocked’. So when you start your mobile service you do not have access to that material. Then you may request access to that material. If you have a post-paid account—so a mobile running on an account—you have already had to meet the credit check, so we have already ascertained that you are over 18 because you have a credit reference. If you are in a prepaid service you have to have a small credit card transaction with a credit card in the your name—the account holder’s name—to then opt into the restricted access system which gives you access to content that is MA 15+ and above.
Talk Senator BIRMINGHAM—The point I am attempting to make there is that, under your current system, as well as presumably under systems that may be imposed after this bill, access to such classified content is harder through the medium of your technology than it is in the home on a television set.
Talk Ms Bean—That is correct.
Talk Senator BIRMINGHAM—And this bill will obviously continue to make that harder, potentially, if it is not amended, depending on what guidelines ACMA put in place.
Talk Ms Bean—Yes.
Talk Senator BIRMINGHAM—You talk about clause 122 in schedule 7 related to state and territories laws. Is there a particular basis for concern there that the states may enact concurrent laws that could have effects across Australia? Is there a reason that you are aware of why that clause has been written as it is in the bill?
Talk Mrs van Beelan—No. Again, it is a legal concern that there is that theoretical possibility that states and territories could enact other laws and that, because of the nature of the internet and the nature of these services in that they are generally nationally available, the effect of the conduct of one state or territory government would have national effect. Some states and territories now already regulate this space to some extent—for example, some of them prohibit certainly criminal activity over the telecommunications network, I understand. It is just more a legal issue that there is that possibility.
Talk Senator BIRMINGHAM—Thank you.
Talk Senator IAN MACDONALD—Just on that point, what happens in the event of conflicting laws under this bill and under state and territory law? This provision says that it is not to exclude concurrent state and territory laws. What happens in the case that they are conflicting?
Talk Mrs van Beelan—The Commonwealth has the constitutional power to legislate in relation to carriage services—to telecommunications—so I expect—
Talk Senator IAN MACDONALD—This is a provision relating to not excluding. Isn’t the Commonwealth saying, ‘If there is a conflicting law, then it will take precedence’? You do not read it that way?
Talk Mrs van Beelan—I think the word ‘concurrent’ suggest that there is other legislation in the field. I do not think there is other legislation that is specifically in this field at the moment, but that is not to say that there perhaps could not be. It would be a constitutional question how the states would legislate in that way. Our legal advisers foresee that there is at least that possibility and thought it was unusual that it was not specifically excluded.
Talk Senator IAN MACDONALD—In the previous recommendation you have a different protection that is provided for in the Broadcasting Services Act. Is there any reason why that might be?
Talk Mrs van Beelan—We could not think of one. We could not think of why there would be a difference from what is in schedule 5, so we were just seeking consistency there.
Talk Senator IAN MACDONALD—Thank you very much.
Talk Senator WORTLEY—In your submission you raise concern with the limitation of liability provisions in section 111. You suggest that they should be broadened. Why, in your opinion, should they be broadened?
Talk Mrs van Beelan—That is the consistency issue I was just discussing with Senator Macdonald.
Talk Senator WORTLEY—Yes, but to move on from that, are there any specific reasons why you consider they should be broadened, and in what way?
Talk Mrs van Beelen—It is simply that schedule 5 gives that broader limitation, including by reference to common law, laws of equity and state and territory laws. I trust that the drafters of schedule 5 thought that that was necessary. So I guess it is more a question of why it would be narrower in schedule 7. We are not aware of why that would be.
Talk Senator WORTLEY—Thank you. Microsoft’s submission raises issues regarding the definition of ‘content services’. I have to agree that 22 exceptions are rather a lot. Can you explain the deficiency that Microsoft sees in the definition of ‘content services’?
Talk Ms Inman-Grant—I appreciate that it is very difficult to anticipate the types of services that may emerge in the future, which is why I assume the drafters took the approach of drafting the definition of ‘content services’ by exclusion rather than inclusion. We just think it would be much easier from a compliance perspective if, rather than looking at every service or component of each service and mapping that against each of the 22 exceptions, there were a much narrower definition of ‘content services’ that has more clarity and granularity in terms of what content services are trying to be provided. That would be our first recommendation: rather than by exclusion, more clarity and narrow the scope in terms of content service. If you decide not to take that approach, we would simply ask that you consider that there be a dominant feature test applied to each content service. Xbox Live, for instance, is primarily an online interactive gaming platform, but a chat function also exists. Most people will not use the chat function on Xbox to call their friends, although it is a secondary or tertiary feature. So, for instance, for Xbox, the dominant purpose is multiplayer interactive gaming. I think it would be much easier for us to apply the content services definition and test rather than apply 22 different exceptions to different layers of that particular service—if that makes sense.
Talk Senator WORTLEY—In Microsoft’s opinion, what would a narrower definition be and how would this assist? You have explained it in relation to Xbox—
Talk Ms Inman-Grant—The ‘content service’ would be a specific, narrow definition that says, ‘This is what the government considers a content service to be,’ rather than, ‘This is generally what a content service is, except for 22 exceptions.’ Does that make sense?
Talk Senator WORTLEY—Yes.
Talk CHAIR—It sounds cumbersome, but in fact it is a way of doing it that is effective, isn’t it? You state what isn’t objectionable, so whatever is left is.
Talk Ms Inman-Grant—Right. I would also note that in the exposure draft user generated content was included as an exception. So if you are going to take that approach we recommend that user generated content be dropped as an exception as part of this bill. That would be consistent with the approach that the European Commission takes with the Audiovisual Media Services Directive. Again, I think, from a compliance perspective—from an organisation that delivers these programs globally—to the extent that there is harmonisation and consistency in these types of laws across the globe, it would make it much easier for us to deliver the services and comply. I would ask that you consider excluding user generated content as an exception.
Talk CHAIR—It is interesting that you referred to the EU law. We might seek to find what its details are today or in the next few days to inform the committee.
Talk Ms Inman-Grant—I am happy to provide a link to members of the committee.
Talk CHAIR—If you would.
Talk Ms Inman-Grant—Indeed.
Talk CHAIR—That concludes this segment. I thank you all for appearing. It has been very helpful evidence.
[10.21 am]
***
STANDING COMMITTEE ON ENVIRONMENT,
COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS: Communications Legislation
Amendment (Content Services) Bill 2007: Witnesses
Date 01 June, 2007
Committee STANDING COMMITTEE ON ENVIRONMENT, COMMUNICATIONS, INFORMATION
TECHNOLOGY AND THE ARTS
Reference Communications Legislation Amendment (Content Services) Bill
2007
Place Canberra
Page 20
Proof Yes
Database Committees Considering Bills
Source Senate
HALLINAN, Mr Matthew, Intern, New South Wales Council for Civil Liberties WALTON, Mr Michael Robert, Committee Member, New South Wales Council for Civil Liberties
***
STANDING COMMITTEE ON ENVIRONMENT,
COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS: Communications Legislation
Amendment (Content Services) Bill 2007: Discussion
Date 01 June, 2007 Committee STANDING COMMITTEE ON ENVIRONMENT, COMMUNICATIONS,
INFORMATION TECHNOLOGY AND THE ARTS
Reference Communications Legislation Amendment (Content Services) Bill
2007
Place Canberra
Questioner Senator WORTLEY; Senator BIRMINGHAM; Senator IAN MACDONALD;
CHAIR
Responder Mr Walton
Page 20
Proof Yes
Database Committees Considering Bills Source Senate
Talk CHAIR—We welcome both witnesses from the New South Wales Council for Civil Liberties and invite you to make an opening statement.
Talk Mr Walton—We thank the committee for allowing us to come and give evidence today. I hope that the point of our submission is very clear, but in this opening statement I will summarise it in the following way. The New South Wales Council for Civil Liberties agrees that children should be protected from unsuitable content. The council also agrees that unlawful content should, of course, be reported, investigated and prosecuted. The council supports community education on internet filtering technologies for parents and for educators. The problem that the council has with both schedule 7, which is proposed in this bill, and the existing schedule 5 is that the council cannot support prohibition and the restriction of lawful speech on the internet or other delivery systems.
The council does not support such a censorship regime for the following reasons. The primary reason is that it restricts free speech unnecessarily. In the analysis provided in our submission, the senators will see that we believe it violates Australia’s international obligations under the International Covenant on Civil and Political Rights. We also believe that the schedules do not and in fact cannot protect children from unsuitable material on the internet. The reason for that is that the vast majority of offending material is hosted overseas, so the restriction and prohibition here obviously has no effect on that. We are of the view also that age verification technology does not necessarily work. It also exposes citizens to the risk of identity theft. We believe the aims of the censorship regime can be achieved without prohibition and restriction of lawful speech of Australian citizens, simply by the use of content filters on end-user devices—specifically home PCs and school PCs. Obviously content filtering is not perfect, but it is the best technology that we have. It is a proven technology and there is research to that effect. It is also configurable for the individual, so as a child matures, for example, different filtering parameters can be used.
In short, the council believes the censorship of lawful speech on the internet is unnecessary. It is unnecessary because such speech can be filtered out on the PC at home or at school. Under the International Covenant on Civil and Political Rights, restrictions on speech are only permissible where it is necessary to restrict speech. The restrictions imposed by the censorship schedules 5 and 7 to the Broadcasting Services Act are unnecessary and therefore, we believe, an illegitimate burden on freedom of speech.
Talk CHAIR—Could I ask you a question taking up the point that you made—that is, people will be able to access this content through overseas providers and servers. That is a very important dimension to this. It is a little bit like banning internet gambling, which you can do in Australia, but people can still access gambling sites through the internet overseas. So would you like to develop that a little bit for the purposes of recording it in Hansard?
Talk Mr Walton—I believe Senator Fielding gave a very effective demonstration earlier this week.
Talk CHAIR—He sought to, yes, but there was a filter on the minister’s computer.
Talk Mr Walton—I was not aware of that. Effectively any citizen or any child, I guess, either at home without filters on their PCs or by walking into an internet cafe, for example, or into a library—I believe not all libraries use content filters—and very quickly come upon sexually explicit material that may be hosted, for example, in the United States or Russia. I would imagine they could do that within the space of a few minutes if they were looking for unsuitable content. It could be anywhere in the world. Without content filtering on the end user device, that material is clearly accessible. Prohibiting and restricting such material on the Australian web servers has no effect at all on access to the material hosted overseas, which is why we say it is simply unnecessary to prohibit and restrict such lawful speech on Australian servers.
Talk CHAIR—You see filters as the only effective technology?
Talk Mr Walton—We base that on a recent US decision where, I think, his Honour Judge Lowell Reed of the District Court in Philadelphia undertook a trial that went for approximately a month. He took evidence on this from experts from the industry; interested groups including the ACLU—the American Civil Liberties Union—groups with opposing views; and experts from the US government. After hearing all the evidence, his Honour concluded that content filtering was the only proven technology and the only effective technology to ensure that children were protected from offensive material. In fact, he pointed out that filters are not perfect—they cannot filter out everything. His conclusion after listening to the expert evidence was that approximately 95 per cent of all offensive material could be filtered out using these filters. In fact, he heard evidence from Australian research, the research that was done by NetAlert here recently where they went through a series of filters. They looked at them all and rated them as to how effective they were. His Honour referred to that research and pointed out that some of the results showed that the AOL content filter was particularly effective—in some instances it could filter out 100 per cent of offensive material—but, as his Honour said, it is not foolproof. It cannot capture everything. However, it is far more effective than restricting and prohibiting speech on the web servers, which has no effect or negligible effect. So the difference is between the negligible effect provided by restriction and prohibition, and the 95 per cent effectiveness of a content filter.
Talk Senator WORTLEY—To follow on from there, you further note in your submission that the judge in ACLU v Gonzales found the age verification systems do not work. Can you explain why this was the case?
Talk Mr Walton—His Honour heard evidence on a series of different technologies. The primary one, of course, was the use of the credit card. He heard about other technologies as well. But his final conclusion, having heard all the evidence, was that these technologies were simply not capable of verifying the age of the end user, primarily because of the anonymity of the person on the internet who is connected. For example, a child can very easily get hold of their parents’ credit card, record the number and then enter that for an age restricted purpose, and the age restriction access system simply cannot pick that up; it is just based on that number. In the same way he also looked at systems that use personal identification numbers, and the same logic applies. All the verification system can do is verify that the person who applied for access is over the age of 18, but it cannot guarantee that the person who is actually using the service is over 18.
Talk Senator WORTLEY—In light of the findings in the ACLU case, what is your view of the access control systems provided by the bill?
Talk Mr Walton—My understanding of what the bill proposes is to leave it up to the regulator to decide what effective age restriction systems will be implemented here in Australia. But I note that in 1999, I think it was, the ACMA released restricted access systems declaration No. 1, to which we refer on page 11 of our submission, and it recommends the use of credit cards and personal information numbers. That, of course, falls foul of the same logic that the US judge has used. Effectively, the age restriction access systems that are being recommended by the regulator here can only guarantee that the person who applies for access is over 18, not that the person who is using the service is over 18.
Talk Senator WORTLEY—I would like to explore some further issues raised in your submission. You note that section 81 provides for trained content assessors. Can you explain why trained content assessors are, in your view, problematic.
Talk Mr Walton—Certainly. We have a few problems with those particular provisions in the bill. Under section 81 the proposal is that industry codes and industry standards for commercial content providers ‘should’ include the use of trained content assessors, so it is effectively mandatory. But if one turns to the next section, 82, it states in subclause (1):
This clause sets out examples for matters that may be dealt with by industry codes and industry standards.
I emphasise the use there of ‘may’. Then in subclause (3) it refers to a complaints mechanism. So our concern, from looking at that drafting, is that content providers must use content assessors to look at the material they are going to provide, but parliament, by passing the bill as it stands, is not mandating any kind of complaint mechanism. So if a content assessor makes a decision about particular content it is not clear, at least from our reading of the bill, whether that decision will be in any way appellable.
Talk Senator WORTLEY—So your concern is that there are not provisions for appeal from the trained content assessors. Would the inclusion of an appeal mechanism from the trained content assessors resolve this issue?
Talk Mr Walton—It would not resolve it completely. There are two issues that we have with the content assessors. The provision of a clear complaints mechanism would certainly improve the bill, obviously. But one of our other concerns is simply that these trained content assessors will be private contractors; they will not be government-employed classifiers, as we have with the Office of Film and Literature Classification. The concern there is that there is a very clear mechanism for a classification decision. I guess ultimately that is coming back to the same concern we have that there is no complaint mechanism that is clear and affordable. Ultimately it would appear—at least as the bill is drafted—that anyone who is not happy with a classification decision of a content assessor may have to go off to the Office of Film and Literature Classification and pay for an official classification. The bill does not seem—at least on our reading—to make it clear whether a decision made by a content assessor has the same status as a decision from the Classification Board.
Talk Senator BIRMINGHAM—I guess it is safe to assume that the Council of Civil Liberties, as a general perspective, opposes censorship—and this is an extension of censorship, so naturally we would expect you to oppose this legislation.
Talk Mr Walton—It is certainly a principled opposition to censorship and any restriction of lawful free speech.
Talk Senator BIRMINGHAM—It is good to have all perspectives on this debate come before us today. We were having a discussion before about how content is regulated in different mediums. In a traditional medium such as free-to-air television, for example, whilst we have a classification system, the viewing of that content once it is classified is really in the hands of whoever controls the remote control. Is it fair to surmise that potentially the restricted access systems already in place—under some industry code and some government regulation—and proposed further regulation under this bill would make it harder to access such material through the new mediums than through the traditional mediums? Is that a fair proposition or summary, in your view?
Talk Mr Walton—It certainly does. I will give a practical example. Only a few weeks ago I was fortunate enough to watch a film called Bad Education, which was screened on SBS TV, rated MA15+. It was on too late at night for me, so I videotaped it. That technology is available to anyone, and the videotape can be replayed at any time. But the film was certainly broadcast under the industry standard, in a late schedule. The streaming of that film—or even a trailer that was also rated MA15+—on premium mobile services, for example, being restricted just does not seem to make sense to us. Listening to the evidence from some of the people who were here previously, it appears that the way that a premium service works is that everything is blocked out initially anyway and that parents have the ability, for example, to restrict internet access on a mobile premium service. I think we said in our submission that we noted—and in fact the US judge also noted—that there is currently no provision for content filtering on mobile phones. A parent would be ill advised, quite frankly, to enable internet access on a mobile phone for a child until such technology becomes available—which is not to say that it should be restricted and prohibited on web servers; it is simply that perhaps parents should be monitoring more closely what their children are watching on their mobile phones.
Talk Senator BIRMINGHAM—And the reason that, even with legislation such as this, a parent would be ill advised to allow free rein to internet services on a mobile phone is that trailers and feature films like Bad Education will still be available but just not from Australian content providers or Australian hosts.
Talk Mr Walton—And in fact far more objectionable material as well would be freely available. So I guess, to go back to your analogy of the remote control, in effect that is how parents effectively have a similar control over premium services, deciding which services will be enabled or disabled on premium services for their children.
Talk Senator BIRMINGHAM—I want to turn to your comments on the prohibition of lawful e-commerce. In part 5 of your submission you talk about how material rated X18+ is commercially available in some aspects in Australia but might be restricted or in fact would be prohibited under this bill. Can you take me through those laws please?
Talk Mr Walton—Certainly. Currently the classification system that classifies content, for example X18+, does not ban it as such. It is state legislation in particular states that decides which content will be restricted, which content will be banned. Here we are dealing with federal legislation which is doing a similar thing—not at the newsagency, not at your local adult store, but on the internet. Essentially what we are trying to explain in this part of our submission is that it is lawful under certain circumstances in Australia to sell over-the-counter X-rated material. You see it here in the territory; you see it in the Northern Territory as well. Such material is also freely available and can be ordered on the internet from other jurisdictions.
Talk By prohibiting Australian businesses from hosting this kind of content on their web servers, by prohibiting Australian businesses from selling these kinds of services on the internet, all we are doing is driving these businesses offshore into other jurisdictions. They simply host their businesses overseas and that has several impacts. One obvious impact is on the Australian IT industry, for example, where programmers lose out on the job of programming that content or where content providers here or hosts, ISPs, are losing that business to overseas businesses as well. So ultimately the bottom line is that this material is, under certain circumstances, lawful material, adults have a right to access it and the council simply objects to that material being prohibited in this context. It makes no sense that you can go down to your local newsagency or adult store and pick up this material but you cannot access it from an Australian web server, but you could access it from a New Zealand web server or an American web server.
Talk Senator BIRMINGHAM—So making it clear: the magazine with the non-transparent coating in the service station or the newsagent, the on-line version would be prohibited from being stored or available on an Australian hosted site under this legislation.
Talk Mr Walton—Precisely, yes, and denying adults their freedom of expression.
Talk Senator IAN MACDONALD—Can I return it your argument that this bill, in effect, does nothing to protect children. Is the filtering, if parents so decide, a guaranteed way? I do not fully understand filtering unfortunately—I was not at the estimates committee when the minister and Senator Conroy were going to go and filter some stuff—but is that a foolproof way?
Talk Mr Walton—No, it is not foolproof at all, it is not 100 per cent effective. I based that on the decision of the District Court in the US. The judge who looked at all the evidence and heard the expert evidence concluded it is 95 per cent effective but is not 100 per cent effective and no filtering technology will be.
Talk Senator IAN MACDONALD—How do parents access filtering technology? Do you go down the shop and buy it?
Talk Mr Walton—In the past that was the way it was done, yes. There was software provided by particular software houses that had different levels of filtering available in them. For example, I believe that AOL has several levels of filtering that a parent can choose. They can choose one for under 10s, another one for under 14s and another one for under 16s and 18s. It is also configurable in the sense that parents can individually filter out particular sites. So, for example, if a parent does not want their children watching Big Brother Uncut, they can simply stop all content from that particular website coming into the PC, it is filtered out. That kind of technology is now, I understand, built into the latest operating systems. So it now comes free, for example, for anyone purchasing the new operating system called Vista from Microsoft. So it does not require a separate purchase of more software.
Talk Senator IAN MACDONALD—So just by doing something on your keyboard you can—
Talk Mr Walton—Yes.
Talk Senator IAN MACDONALD—And the same applies for mobile phones?
Talk Mr Walton—No. Currently, to the best of my knowledge, there is no such technology available for mobile phones, which is why we have said in our submission that it is probably ill-advised for parents to enable internet access on mobile phones for their children until such technology is available.
Talk Senator BIRMINGHAM—The government has an outstanding program making filtering services freely available, as you would be aware. Chair, I suggest that we might pose that question on the development of mobile phone filtering technology to the AMTA as a request for further information from them. They may be aware of those technology developments.
Talk Mr Walton—I can also point the committee to that particular report that was created by NetAlert here in Australia. I think it was a CSIRO research paper. It goes through all the different filtering software and rates them, and that might also be useful. I believe that there is a reference to it, if I can just find it, in our submission. It is in footnote No.17 on page 9. It is called the Effectiveness of internet filters software products. It is a 2001 report from the CSIRO.
Talk Senator IAN MACDONALD—Thanks very much for that.
Talk CHAIR—You also say the bill unreasonably restricts the use of computer games. Do you want to enlarge on that?
Talk Mr Walton—Computer games are playable on the internet; they are also playable on mobile phones and other premium services. The council’s concern is a very simple one: at the moment the classification system for computer games is highly restricted. It only allows adults to see or to play games, to purchase games here in Australia, that are suitable for 15-year-olds; there is no adults-only rating or classification and there is no X-rated rating either. So all of these games are just simply banned here in Australia and we see no reason for this. The classification system could be expanded to provide an R-rated and an X-rated classification for computer games as well so that adults can play the games that they wish.
Talk CHAIR—Are there any other matters that you would like to put before the committee? If you would like to do so, please do so.
Talk Mr Walton—Just very quickly, I would like to make a point about the link service providers. This is mentioned in the bill itself. A problem that we can see is essentially that a link provider has no contr