I was an invited participant to the RuNET 2012 Conference held in Moscow on 19 December 2012. I was asked to speak about the Australian debate about mandatory Internet filtering in light of digital economy developments, as this has parallels in current debates in Russia. The participation was electronic using Movi 4.2, reducing the cognitive dissonance between being in Brisbane where it is currently 35C, and Moscow where it is -20C.
The presentation is provided below.
RUNET 2012 Conference: the results of the year and key trends in Internet regulation, Moscow, Russia, 19 December 2012
Presentation by Terry Flew, Professor of Media and Communication, Queensland University of Technology, Brisbane, Australia
My involvement in the subject of Internet regulation comes from chairing a Review of the National Classification Scheme for the Australian Law Reform Commission. The Review was commissioned by the Attorney-General of Australia, and the ALRC was asked to advise on necessary changes to Australian classification laws and regulations in light of: technological convergence; changes in media consumption by Australians; the scope to reduce regulatory burdens on industry; developing Australian media and digital content industries; and changing community expectations about content regulation in a changing media environment. The ALRC received over 2,300 submissions to its Inquiry over 2011-2012, and provided its Final Report to government in February 2012. The report was titled Classification – Content Regulation and Convergent Media, and it made 57 recommendations for reform.
Media Content Regulation and the Internet Filtering Debate in Australia
Internet content regulation in Australia is based around three pieces of legislation:
• Broadcasting Services Act 1992;
• Classification Act 1995;
• Telecommunications Act 1997.
While these pieces of legislation responded to the challenges of their time, they are all notably pre-Internet forms of legislation. Responsibility for content regulation on the Internet lies with the Australian Communications and Media Authority (ACMA), which regulates radio and television, rather than with the Classification Board, which deals with films, publications and computer games. The Broadcasting Services Amendment (Online Services) Act, passed in 1999, requires the Internet Industry Association (IIA) to register a Code of Practice with the ACMA which, among other things, has provisions for Internet Service Providers (ISPs) to restrict access to content that would be rated “R’ or “X”, and to not distribute content likely to be classified “prohibited”. Those resident in Australia providing such content (deemed to be “Internet content hosts”) can be subject to a take-down notice from the ACMA, with a sliding scale of punishments for failure to comply with this directive. Under current laws, the category of “prohibited” content online is considerably broader than that applying to other media, where certain items of content are deemed to have been Refused Classification (RC).
The provisions for restricting access to certain forms of content online have long been criticized by the industry as well as by community groups, for making a basic category error in approaching online media as being “like” broadcasting. ISPs have routinely complained that they are primarily the conduit through which users access content rather than its providers, and hence cannot be held accountable for those who use their services. The process of identifying ‘prohibited’ content is also considerably less open and transparent than that used for RC decisions with other media. Most importantly, the legislation has almost no impact upon content providers outside of Australia: its primary effect is to encourage those who distribute potentially prohibited content on servers located outside of Australia.
One of the major commitments of the current Australian Federal government, elected in 2007, was the development of a National Broadband Network (NBN). The NBN is a government-funded investment intended to provide high-speed broadband to 93 per cent of Australian homes by 2021. The implication of the NBN is, of course, that it furthers technological convergence, and means that media content will be accessible across multiple devices and platforms. The Government has recognized that as being a fundamental challenge to the regime of platform-based media regulations developed in the 1990s, and the Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy, established the Convergence Review to make recommendations about how to revise media legislation for the next 10-20 years in the context of convergence.
The question of Internet filtering has been a major issue of contention in Australia over the last decade. Prior to 2007, the system worked around a mix of promotion of PC-based filters by ISPs – with the Federal government making some PC-based filters freely available during 2006-2007 – combined with obligations on ISPs to block content that had been subject to complaint and investigation and subsequently prohibited, or placed on the “ACMA blacklist”. The new Government proposed legislation in 2009 that would involve developing a mandatory Internet filter based on the current RC classification that would require ISPs to filter or “block” all RC content based on overseas servers. While intending to protect children from inadvertent exposure to inappropriate content, and remove the current anomaly in treatment of content hosted in Australia and that hosted overseas.
Not surprisingly, the proposal for mandatory Internet filtering was subject to widespread criticism. In a public consultation on the issue conducted by the DBCDE in 2010, the following criticisms of the proposal were made:
• It would not capture most child sexual abuse material, as it is increasingly distributed throguh peer-to-peer file sharing and virtual private networks, which will not be filtered;
• The filter would not being effective because it can be by-passed by the tech-savvy;
• The scheme would be costly to implement;
• The filter may give a false sense of protection to households and parents;
• The existence of a government list of websites to be filtered being kept secret, being open to abuse (including ‘scope creep’—more categories of content being added over time), and infringing freedom of speech;
• The potential for over-blocking (that is, content being filtered that should not be filtered, such as creative/artistic works and sexual health information).
It may also be at odds with the government’s commitment to establish Australia as a leading nation in the global digital economy. The digital economy has been defined as ‘the global network of economic and social activities that are enabled by information and communications technologies, such as the Internet, mobile and sensor networks’. The ALRC is currently undertaking a review of Australia’s copyright laws in the context of the digital economy, to advise on ‘whether amendments to copyright law are required in order to create greater availability of copyright material in ways that will be socially and economically beneficial’.
The ALRC National Classification Scheme Review
The National Classification Scheme Review took place independently of the mandatory Internet filtering discussion. The ALRC is an independent statutory body within the Attorney-General’s Department, rather than a part of the DBCDE. In its Terms of Reference, however, the ALRC was required to give consideration to the recommendations of the Convergence Review (and the Convergence Review to give consideration to the ALRC Review), and to engage both the DBCDE and the ACMA as stakeholders in any future National Classification Scheme.
The approach taken by the ALRC to address these issues was three-fold. First, in dealing with the sheer volume of submissions, and the existence of radically divergent views in the community about media classification and censorship, we sought to identify core principles that should inform any future legislation. Out of a broadly based consultative process, the ALRC proposed the following eight guiding principles:
1. Australians should be able to read, hear, see and participate in media of their choice;
2. Communications and media services available to Australians should broadly reflect community standards, while recognising a diversity of views, cultures and ideas in the community;
3. Children should be protected from material likely to harm or disturb them;
4. Consumers should be provided with information about media content in a timely and clear manner, and with a responsive and effective means of addressing their concerns, including through complaints;
5. The classification regulatory framework needs to be responsive to technological change and adaptive to new technologies, platforms and services;
6. The classification regulatory framework should not impede competition and innovation, and not disadvantage Australian media content and service providers in international markets;
7. Classification regulation should be kept to the minimum needed to achieve a clear public purpose;
8. Classification regulation should be focused upon content rather than platform or means of delivery.
The second priority was to apply foresight analysis to what will be the key trends for the next 10-20 years. Without question, the key trend is that of media convergence, and the increased uncoupling of media content from media platforms. A number of other developments are associated with this, including media globalisation, the rapid growth of user-created content, the greater ability of individuals to control their media environment, and the blurring of distinctions between what is private and what is public in terms of the availability of media content (e.g. sexually explicit material in a magazine is only accessible to its purchasers, but the same content on the Internet can be potentially accessed by everyone).
This led to the ALRC recommending to the Australian government that any new classification legislation should be based on the principle of platform neutrality. As traditional distinctions based on how content is accessed or delivered are becoming less relevant, it was recommended that recommends platform-neutral laws should be developed for what media content must be classified, what media content must be restricted to adults, and what media content is prohibited. Further, all media content that is required to be classified would be classified according to a single set of classification categories and criteria.
As the Internet has greatly expanded the possibilities for public participation as producers as well as consumers of media content, there is a greater need for future classification regulations to avoid impinging unnecessarily upon the communications activities of individuals. The challenge is to consider how to set boundaries to the role of the state, around such questions as the potential audience reach of the content and the degree of influence of the content provider, and whether online communication is primarily for commercial or non-commercial purposes..
The ALRC was of the view that content providers should still be required to take reasonable steps to restrict access to all adult content that is sold, screened, provided online, or otherwise distributed to the Australian public, in light of legitimate community concerns. But the question of how this is done needs to enable content providers to be innovative in regulating access to adult content, rather than requiring all such content to be classified by Australian classifiers. Such an approach accords with the principle that classification regulation should be kept to the minimum needed to achieve a clear public purpose. It also recognised that measures to restrict access to adult content should be seen as complementary to other Government cyber-safety initiatives, as well as industry initiatives, that may include:
• public education about the use of parental locks and other technical means to protect children from exposure to inappropriate media content;
• digital literacy and education programs;
• use of PC-based dynamic content filters; and
• user reporting—or ‘flagging’—of inappropriate content.
Finally, the ALRC recommended a significant narrowing of the current Refused Classification category to a more clearly defined category of Prohibited content. Some aspects of the current RC classification are clearly problematic in terms of community expectations, including prohibitions on the depiction of some sexual fetishes, drug use, and depictions of crime. In the online environment, it was noted that the INTERPOL ‘worst of’ list of child sexual abuse material provides a suitable basis for determining content that must be blocked, as it has been identified by more than one national law enforcement agency, is updated regularly, and is clearly focused upon content that is of a criminal nature, rather than being in the broader and more subjective category of ‘offensive material’.
While the Australian government has yet to respond to many of the ALRC recommendations, it has identified the INTERPOL list as providing a basis for determining content that must be subject to ISP-level blocking. Leading Australian ISPs had already adopted the INTERPOL list as a basis for determining content to be blocked on a voluntary basis, and this is far less contentious in the Australian community than a mandatory Internet filter based around the current RC category. It can also be applied by the government to ISPs in accordance with their obligations under the Telecommunications Act 1997, without the need for new legislation.