Brendan Scott

29 June 2001

This legislation will have collateral damage which will have an effect across the broader community.

The legislation creates distinctions which will not be properly appreciated by ordinary citizens, thereby exposing them to an inappropriate level of criminal liability.

The legislation operates on the assumption that the internet is a public place and precludes the possibility that it may evolve into or contain subnetworks analogous to private space.

The true damage created by censorship is the collateral damage that occurs as a result. It is important not to believe that, simply because censorship only mentions a certain class of material that only people who are involved with that class of material will be affected.

Two examples of collateral damage include self censorship and third party censorship. Where a person is unsure of the legality of material one would assume them to err on the side of caution and censor themselves, even though, on a proper examination, the material may be legal. Where a person is providing services to a second person, the first person may, out of abundant caution, include expansive contractual indemnities out of fear of exposure. The author, as a practitioner in the area of telecommunications and technology law, has had direct experience, in the wake of the Federal Broadcasting Services Amendment (Online Services) Act 1999, of small content providers who have been put to significant additional expense by service providers seeking to impose such overbroad indemnities even though the content provider was not involved in producing content that would have been subject to regulation by that Act. The service provider had to anticipate all possibilities, however small. This translated directly into additional costs for small business content providers through legal costs, lost management time, and through opportunity costs flowing from the delay in securing a deal. This collateral damage arises from uncertainty and fear created by censorship even where the small business is not involved in the creation of regulated material.

While there are strong arguments for the censorship of abhorrent material, care must be taken when extending those arguments into categories of material which do not cross the border into abhorrence, especially where the targets of censorship are individuals rather than businesses. That is, censorship of material where there is no universal acceptance of the evil of that material, as there is in relation to, say, child pornography and racially vilifying material. Once a legislature strays beyond this border legislation becomes difficult because ordinary citizens are not able to make the distinctions which the legislation requires them to make. It is possible to justify restrictions on the sale of censored material because, in effect, the vendor of the material has specialist knowledge of the area and the price of sale subsidises the acquisition of that knowledge. However, the same is not the case where ordinary citizens are exchanging material with one another, and this is what the proposed legislation will directly regulate. For example, material which instructs or promotes in matters of crime or violence are rated RC under the Federal classification scheme. It would be reasonable for an ordinary citizen to take these words on their face and consider martial arts manuals and many Hollywood movies glorifying violence as RC. However, this is apparently not the view taken by the OFLC.

The success of the plethora of television shows concerning, or catering to prurient interests (for example, Sex in the City) and of magazines openly available on newsstands is indicative of the difficulty that ordinary people will have in drawing the distinctions that are assumed by the proposed legislation. For example, magazines targeted at (and purchased by) 13-18 year old girls have article titles such as:

(Cleo July 2001)

(Cosmopolitan July 2001)

Each of these articles appears not only to be acceptable to the reading public as material that should be readily available (and available to minors), but, moreover, to be material which is of such interest as to merit prominence on the cover for advertising value. Because the legislation effectively transmutes printed material into films if put on the internet, had any of these articles been delivered over the internet it is arguable they would be rated R, if not X (assuming the headlines are not mere "teasers") and subject to restrictions over and above the ordinary. That these articles may be deplorable exhibition of human curiosity does not address the key problem that individuals will face in understanding what and why material will be legal if they purchase it at their newsstand or give it to their friends, but illegal if they acquire or provide it over the internet.

The proposed legislation imposes standards on ordinary individuals which do not appear to be reflective of the common understanding. As such, its passage will expose individuals to criminal liability where they ought not to be liable.

The proposed legislation also appears to assume that the whole of the internet (with the possible exception of "ordinary electronic mail") can be considered a "public place". Whether or not that is true at present (the author considers it is not � for example chat rooms and web sites can be "locked" and users can have their identity and age certified by certification authorities under the Commonwealth Government�s Gatekeeper scheme, or through the use of PKI) it sets this "public place" assumption in legislative stone, regardless of how the internet develops in the future.

The author has elsewhere that internet specific censorship legislation has collateral effects on the industry � see, for example "Silver Bullets and Golden Egged Geese" in The University of NSW Law Journal Forum, Vol 6, No. 1, March 2000, Internet Content Control at page 14.

The author considers that the legislation as a whole will have unacceptable collateral impacts and, as such, should be subject to further consideration as a whole. However, we make specific comments on specific sections of the Bill.

Section 9: By requiring Category 2 material to not be "delivered" except in opaque material has the effect of either:

A similar argument applies to the existing provision relating to Category 1 material. This is a deficiency which infects the Commonwealth legislation as well. It is reasonable to expect that, if this provision is passed without revision, opponents of the legislation will pounce on inconsistencies such as these as being as indicative of an inadequate level of consideration given to the consequences of the Bill or indicative of an inadequate understanding of the operation of the internet.

Despite some patchwork on the term "internet content" as it passed through the Commonwealth legislature, this term is extremely broad.

This clause is a blanket ban which does not provide an appropriate analogy to the off line world. In particular, it is irrelevant whether the receiver is a minor or has reached majority, nor does it provide the same defences available to offline delivery of the same material � compare sections 42, 46, 47, 48 of existing Act (see Appendix). In particular, it is not illegal for a person to hand a DVD containing material to another adult in South Australia, but to transfer the same material to the same person by ftp (ie. not by ordinary electronic mail) would be.

Contact Address: c/ Gilbert & Tobin, Level 37, 2 Park Street, Sydney, 2000, 02 9263 4000.

42. (1) A person must not sell or deliver to a minor-

(a) an unclassified film that would, if classified, be classified RC or X;

or

(b) a film classified RC or X.

Maximum penalty: Division 4 fine.

(2) A person must not sell or deliver to a minor a film classified R unless the person is a parent or guardian of the minor.

Maximum penalty: Division 6 fine.

(3) It is a defence to a prosecution for an offence against subsection (2) to prove that-

(a) the minor produced to the defendant or the defendant's employee or agent acceptable proof of age before the defendant sold or delivered the film to the minor and the defendant or the defendant's employee or agent believed on reasonable grounds that the minor was an adult; or

(b) the minor was employed by the defendant or the defendant's employer and the delivery took place in the course of that employment.

(5) A minor who is 15 or older must not buy a film classified RC, X or R,

knowing that it is so classified.

Maximum penalty: Division 9 fine.

(6) A person must not sell or deliver to a minor under 15 a film classified MA unless the person is a parent or guardian of the minor.

Maximum penalty: Division 8 fine.

(7) It is a defence to a prosecution for an offence against subsection (5) to prove that the defendant or the defendant's employee or agent believed on reasonable grounds that-

(a) the minor was 15 or older; or

(b) the parent or guardian of the minor had consented to the sale or

delivery.

46. (1) A person must not sell or deliver (other than for the purpose of classification or law enforcement) a publication classified RC, knowing that it is such a publication.

Maximum penalty: Division 5 fine.

(2) A person must not sell or deliver (other than for the purpose of classification or law enforcement) a submittable publication, knowing that it is such a publication.

Maximum penalty: Division 6 fine.

(3) It is a defence to a prosecution for an offence against subsection (2) to prove that since the offence was alleged to have been committed the publication has been classified Unrestricted.

SECT 47 Category 1 restricted publications

47. (1) A person must not sell or deliver a publication classified Category 1 restricted unless-

(a) it is contained in a sealed package made of opaque material; and

(b) both the publication and the package bear the determined markings.

Maximum penalty: Division 6 fine.

(2) If a publication is reclassified under this Act or the Commonwealth Act, it is sufficient compliance with subsection (1)(b) for a period of 30 days after the decision to reclassify takes effect if the publication bears the determined markings applicable to the publication before reclassification.

SECT 48 Category 2 restricted publications

48. (1) A publication that is classified Category 2 restricted must not be-

(a) sold, displayed or delivered except in a restricted publications area;

or

(b) delivered to a person who has not made a direct request for the publication; or

(c) delivered to a person unless it is contained in a package made of opaque material; or

(d) published unless it bears the determined markings.

(2) A person must not sell, display, deliver or publish a publication in contravention of subsection (1).

Maximum penalty: Division 5 fine.

(3) If a publication is reclassified under this Act or the Commonwealth Act, it is sufficient compliance with subsection (1)(d) for a period of 30 days after the decision to reclassify takes effect if the publication bears the determined markings applicable to the publication before reclassification.