As I blogged briefly about yesterday (see here), Crikey has made available a copy of the exposure draft of the Communications Legislation Amendment (Content Services) Bill 2006. Although this draft is dated 30 November 2006 and it has apparently been superseded, there is much in this Bill that is both ridiculous and disturbing. Crikey's Margaret Simons has posted her thoughts here and Kim Weatherall has given her view here. Anyway, what follows is a summary of the Bill (as it was on 30 November 2006), and my initial reaction ...
Overview
The Bill would make it an offence for a "designated content service provider" to deliver or make available for access "prohibited content" or "potential prohibited content" to an end-user. A "designated content service provider" is defined as "a commercial content service provider", and so arguably this Bill would make it an offence for anyone who provides commercial content to deliver or make available for access:
- content that has been classified RC or X18+ by the Classification Board or the content has been classified R18+ or MA15+ by the Classification Board and access to the content is not subject to a restricted access system (that is what is meant by "prohibited content");
- content that has not been classified by the Classification Board, but if it were to be classified, there is a substantial likelihood that the content would be prohibited content (that is what is meant by "potential prohibited content").
Now, the Bill only covers commercial services, but this is defined broadly to mean services that operated for profit or as part of a profit-making enterprise, and is provided to the public (whether on payment of a fee or otherwise) and has an Australian link.
Although this all seems extraordinarily broad (as I will explain below), the Bill does exempt a range of services from this regime, including:
- broadcasting services, including rebroadcasting of video or audio recordings online that were previously broadcast, long as none of the programs or extracts have been classified R 18+ or MA 15+ by the Classification Board or under a code of practice;
- datacasting services;
- news and current affairs services, including services providing material from Parliament, courts or tribunals or an official inquiry;
- point-to-point services, including email, instant messaging or SMS, but (expressly) not chat services;
- internet search engines, provided they do not specialise in providing links to, or information about, internet sites that specialise in prohibited content or potential prohibited content;
- services that enable end-users to communicate by voice or video calls with other end-users;
- user-based content services, which are services whose sole or dominant purpose is to allow end‑users to upload and access content, provided they do not specialise in content that is prohibited content or potential prohibited content;
- user-based online trading services, which would presumably cover sites like eBay.
It is also relevant to point out that the Bill allows for bodies and association that represent commercial content service providers, like the Internet Industry Association, may develop industry codes and that the ACMA has a range of powers, including a reserve power to make an industry standard if there are not industry codes or if an industry code is deficient, and the power to make determinations regulating content service providers.
What is wrong with this Bill?
I am concerned about several aspects of this Bill.
First, as others (such as Kim) have noted, this Bill would require online content providers to monitor material before it is put online. This is because the offence occurs as soon as the content has been made available to an end-use. The Bill does not require end-users to access the content or even to be offended and complain about the content, the act of making the content available online is what constitutes the offence. This regime would have a significant chilling effect on free speech in Australia as any content provider would be very reluctant to post any content that may be prohibited or potentially prohibited. When in doubt, the content would not be posted and speech would, in effect, be limited.
Second, the chilling effect is magnified when you consider the range of content that is potentially covered by the Bill - both prohibited and potentially prohibited content. Thus, this Bill does not seek to restrict or limit access to only the worst kind of violent or sexually explicit content, but anything where there is a "substantial likelihood" that the content may be rated MA15+ or above. Think about the sort of content that may be restricted under this sort of regime. The last two Oscar winners for Best Picture, Crash and The Departed were both rated MA15+, as were movies like Saving Private Ryan, The Last King of Scotland and The Shawshank Redemption. And the regime is not limited to film, content has been defined to include text, data, speech, music or other sounds and visual images (animated or otherwise). So, podcasts and most significantly online text publications are subject to the same restrictions that govern films and computer games. And this leads to my third concern ...
This Bill treats online publications and print publications differently. The application of MA15+ ratings and above to online text means that material that is able to be sold unrestricted in bookshops or newsagents, could become restricted or prohibited online. Given the likely expansion of e-books and online magazines etc., it seems overly broad to have two different standards operating depending upon whether the text is published in a traditional manner or published online. Further, this means that great works of literature may be restricted online. Crikey rightly wonders how books like Crime and Punishment or Nabokov’s Lolita or, more recently, Nikki Gemmell’s Shiver or Lionel Shriver’s We Need to Talk about Kevin would fare under this regime.
The effect of all of these first three points is that online content providers are either going to decide not to post anything that they think may be possibly be considered MA15+, or do one of two things, both of which are costly - either introduce a restricted access system, submit content for classification with the accompanying fee. This is not a desirable system for the future of the online Australian content.
Fourth, the Bill is unclear as to exactly who is covered by the regime, and to the degree that it applies to individual bloggers or website owners it is far too broad and onerous. The exemption for user based content services mean that sites that host wikis or blogs or other user-generated content, such as Wikipedia, Typepad or YouTube, are not going to be covered by the Bill. However, webpages and blogs will arguably be covered - if they are commercial - as they provide "a service that delivers content". As outlined above, to be commercial the website or blog merely needs to be operated for profit or as part of a profit-making enterprise, and is provided to the public (whether on payment of a fee or otherwise). This suggests that any profit a blogger or website owner may receive from advertising (for example, from Google ads or an equivalent), no matter how small, is sufficient for it to be covered by the Bill. Kim hopes that many blogs may be exempt as a "news and current affairs service", but although my blog and Kim's blog may be able to make that argument, the vast majority of personal blogs are going to struggle.
Fifth, this Bill is going to apply to any content service with even a tenuous link to Australia. An "Australian link" is present if:
- the content service is provided in the course of carrying on a business in Australia; or
- the central management and control of the content service is in Australia; or
- the content service is provided through an agent in Australia; or
- any of the content delivered by, or accessible using, the content service is kept on one or more data storage devices in Australia; or
- any live streamed content delivered by, or accessible using, the content service originates in Australia; or
- in the case of a content service supplied by way of a voice or video call, any of the participants in the call (other than an end‑user of the service) are physically present in Australia.
Not only does this make it almost impossible to enforce, but it may have the consequence of discouraging overseas content companies from having anything to do with Australia.
Finally, the regime introduces a clearly unworkable system for live streamed content. The Bill requires that live streamed content is to be classified in ten minute segments. As Crikey's Margaret Simons says:
Each segment of ten minutes would have to be separately assessed to see whether it would be "substantially likely" to be prohibited. Watch out Big Brother, but also watch out operators of webcams and funniest home video sites – the minute you try to turn a buck.
Conclusion
There are significant problems with this draft Bill. The Government assures us that it has been superseded, and we can hope that they have somehow addressed the problems I have outlined above. But as it stood on 30 November last year, it was too broad, too restrictive, and simply unworkable. As a response to the Big Brother controversy last year, this Bill is an extreme over-reaction, and rather than being re-worked, it should be dropped entirely. Not only is such an severe regime unwarranted, it is simply ludicrous for the Government to think that it can somehow regulate all content on the internet. Let's hope the Government decides to forget about this Bill altogether ...
