PO Box 382 North Adelaide SA 5006   Tel: (07) 3424 0201 Fax: (07) 3424 0241   Email: mail@efa.org.au   Web: http://www.efa.org.au/

7 March 2001

The Hon Trevor Griffin, MLC
Attorney General
GPO Box 464
ADELAIDE SA 5001

Fax: 08 8207 1736     Page 1 of 4

Dear Mr Griffin

Subject: Your letter published in The Australian, 6 March 2001
Classification (Publications, Films and Computer Games) (Misc) Amendment Bill 2000

We refer to your letter published in The Australian on 6 March 2001 (page 49) regarding the Online Services section of the above mentioned Bill.

We set out below extracts from your letter together with our understanding of the relevant provisions of the Bill. We request you advise us of any aspect of our understanding below that is incorrect, together with correct information. We have made available a copy of this letter on EFA's web site and will be pleased to make similarly available a copy of your response, with a view to public debate on this Bill being based on fact as to the intent and provisions of the Bill.

1. Your letter states "It is wrong to say that this Bill 'goes far beyond legislation in place in any other state.' Similar laws exist in Victoria, Western Australia and the Northern Territory".

In those jurisdictions, it is not a criminal offence to make available matter unsuitable for minors to adults. Further, those jurisdictions permit a defence of taking "reasonable steps" to avoid providing restricted material to minors. In the case of WA and the NT, it is also a defence to a charge of providing R material to minors that the defendant complied with an industry code of practice. By contrast, the proposed SA legislation provides only the defence of using an approved Restricted Access System (RAS).

While Commonwealth law does require the use of an approved RAS, the penalty for non-compliance is a takedown notice, not a fine of up to $10,000.

The legislation in each of WA, NT and Victoria specifically recognises that Internet content includes publications as well as films and computer games, indicating Internet content that consists of text would be classified under Guidelines for Publications, not the more restrictive guidelines designed for movies.

2. Your letter states "[i]t is misleading to say that the Bill allows 'police officers to decide whether online material is illegal'. As with other offences, police decide whether to prosecute, but the court decides whether an offence has been committed...if the defendant does not admit the classification, police must prove it, and the material is classified by the Office of Film and Literature Classification".

The Bill makes it a criminal offence to make available material that would be classified R. Hence it empowers police to decide that online content would probably be illegal and commence proceedings against a content provider under criminal law prior to material being classified, although the content provider is denied an opportunity to ascertain the classification of material before making it available online.

A court will decide whether an offence has been committed insofar as whether a particular person made available on the Internet the information at issue. For example, whether the defendant posted a message in newsgroup or whether someone else forged their name on a newsgroup posting, or whether the defendant placed information on their own web site or someone else broke into their web site and placed illegal material on it.

However, a court will not decide whether material infringes Classification Guidelines. A non-unanimous decision of the OFLC Board is prima facie evidence of the classification of particular material. In this regard, the members of the OFLC Board are judge and jury, but without the requirement that the jury be unanimous as normally required in relation to offences under criminal law. A court would be bound to rule that Internet content is illegal if the OFLC Board determined it is classified R. An important check against bureaucratic interpretations is missing in the draft Bill.

Offline this criminal justice issue is dealt with to a more acceptable extent by enabling publishers, distributors and exhibitors of films, publications and computer games to obtain a classification from the OFLC prior to publishing material, thereby enabling them to know for a fact whether the material is legal or illegal to publish. However, neither the SA Bill, nor Commonwealth legislation, provides such an option to ordinary South Australians who publish information online. The Bill requires them to guess the classification that the OFLC Board would give by non-unanimous decision. If they guess wrongly, they will be subject to prosecution without any rights to plead the legality of the material at their trial - a Classification Certificate from the OFLC has been substituted for a considered judicial determination.

3. Your letter states: "it is not a fair representation to say that the Bill will prevent the discussion of adult themes on the Internet."

While EFA does not speak for other commentators who may have said the legislation will prohibit all discussion of adult themes, EFA has stated, correctly, that the Bill makes it a criminal offence to make available detailed information on "adult themes" to adults, as well as to minors. In additon to the actual provisions of the law, uncertainty as to what is permissably non-detailed will chill discussion on such themes. This situation arises because the Bill makes it a criminal offence to make available "matter unsuitable for minors", that is, information that is or would be classified R. In other words, the highest classification that will not attract prosecution is MA15+. The OFLC Guidelines for the MA classification require that the "treatment" of "adult themes" be "discreet". The definition of "discreet", in the Glossary to the Guidelines, is "With little or no detail and generally brief". Therefore, discussion of adult themes that is not "with little or no detail and generally brief" carries a risk of being classified R/unsuitable for minors. "Adult themes" include topics such as "suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues" according to the OFLC Guidelines.

The problem is exacerbated by the decision of Commonwealth and State/Territory Governments to apply guidelines designed for films, that comprise moving images and sound, to text and static images on the Internet rather than to apply guidelines for books and magazines. Internet users and publishers are unable to gain any understanding of how guidelines developed for films are being applied to text because (a) the OFLC will not classify Internet content for intending online publishers and (b) both the Australian Broadcasting Authority (ABA) and the Office of Film and Literature Classification (OFLC) refuse to make available information on material on Australian sites that has been classified R online as a result of a complaint to the ABA. Since such material would have subsequently either been deleted by the Internet Content Host or placed behind a restricted access system (on threat of fines of up to $27,500 per day), refusal to make available details of examples of such content to an adult appears intended to prevent Internet publishers from gaining an understanding of how the film classification guidelines are being applied to Internet content. Offline publishers can identify examples of material deemed unsuitable for minors etc. by reference to the OFLC online database of classifications of films, publications and computer games, but this database does not include classifications of Internet content.

If it is not intended that the law prevent detailed and non-brief information about adult themes, by adults to adults, on the Internet, then either the Classification Guidelines or the definition of "matter unsuitable for minors" in the Bill requires amendment.

The matter of the available defence to prosecution of proving that a Restriction Access System was in place is addressed in Item 6 below.

4. Your letter states: "The intention of the Bill is to apply the same rules to online material as is presently applied to offline material".

Such an intent is not reflected in the provisions of the Bill which treats ordinary South Australians providing on-line content less fairly under criminal law than off-line film distributors/exhibitors and magazine publishers. For example, the Bill:

• makes it a criminal offence to make R classified material available to adults online, although this is not a criminal offence offline

• criminalises inability to foresee a non-unanimous decision of the Commonwealth Classification Board while denying Internet users the opportunity to obtain an OFLC classification prior to publication, as is granted to offline publishers

• fails to require that material be classified before police commence prosecution of an Internet user

• subjects Internet users to maximum penalties double those applicable to offline publishers. The maximum penalty applicable to content providers for making available material that is or would be classified R is $10,000 even if the content is only made available to adults. The maximum penalty for sale, delivery or exhibition of a film that is classified R to a minor offline is $5,000 as stated in the Bill, and there is no penalty for sale or delivery to adults offline.

If the intent is to apply the same rules online as offline, amendments to the Bill are necessary to reflect such an intent.

5. Your letter states: "The community supports a framework whereby some published or screened material is restricted to adult only."

We query whether the community supports that access to information that requires an adult perspective be limited to persons who provide their name and credit card details. This would be considered an abuse of privacy in any other medium.

As stated in the SA Information Economy 2002 Statement (IE2002) "the Information Economy is ushering in a new approach to communication and interaction that will ultimately impact on everyone-economically, commercially, socially and culturally. It's dramatically changing the old, familiar order of things, but it's also offering new opportunities to grow, to prosper, to benefit socially and culturally, and to enjoy."

Attempting to apply the old, familiar order of things to Internet enabled communication and interaction, particularly in the manner of proposed restriction to adults contained in the Bill, carries a high risk that the South Australian government will be perceived not to understand the Internet and technology underlying it, adversely affecting the ability of the State to attract new business and investments in the State's Information Economy sector. If the Government wishes to encourage uptake of new opportunities "to grow, to prosper, to benefit socially and culturally, and to enjoy", there is a need to lead in educating the community rather than allow sectors of the community who are unfamiliar with the Internet or have an entrenched belief that the old way of doing things is best, to restrict the opportunities available to others.

While the Bill provides that online publishers may defend themselves in a court by proving that a Restricted Access System was in place "at the time the matter [unsuitable for minors] was made available or supplied by the defendant", by the time a case reaches court the defendant will have had his/her reputation tarnished and will have incurred substantial legal costs. It is questionable whether a defendant could in fact prove a system was in place because the Bill does not make clear whether the available defence means at the time content was initially placed online, or at the time it was "supplied" when someone downloaded it. In view of the potential for the latter interpretation, content providers may be well advised to obtain a sworn affidavit each day from their ISP/Internet Content Host that the Restricted Access System and security relative thereto was in place on the ISP/ICH's web server.

Content providers whose web sites are hosted by third parties such as ISPs are totally reliant on their ISP or other Content Host to ensure that the technology that provides password protection facilities is effective and maintained. The performance of a Restricted Access System depends on the web server, not the content provider. The only defence to this law relies on compliance by third parties. The defendant has no operational, legal or physical control over the technical operation of the Restricted Access System. However, the Bill as drafted makes the content provider liable if their Content Host's system fails or is faulty.

Restricted Access Systems require information providers to collect personal information about visitors to their site that goes far beyond proof of age (the ABA approved system requires name and credit card details or passport, birth certificate etc.) prior to granting access. The Bill disregards the costs of collecting such information, the delay and inconvenience to intending visitors and provides no privacy protection whatsoever for visitors, notwithstanding that in IE2002 it is noted that "The emerging Information Economy calls for a legislative and institutional environment that gives ...consumers...confidence in the integrity and security of...personal information".

If the proposal to require Restricted Access Systems to be in place proceeds, information providers are likely to avoid the costs and risks (of having to prove in Court an RAS was operating correctly) and publish outside South Australia, and intending visitors to any sites that are made available in South Australia are likely to turn to overseas sites rather than reveal personal information.

6. Your letter states: "the quoted suggestion that the Bill was intended to just pass 'quietly in the middle of the night' implies there has been some secrecy or hurry about the Bill. The SA Bill has been subject to broad consultation and was introduced last year" and "has been sent out to a wide range of persons".

EFA's enquiries have not revealed any parties who were consulted on the Bill prior to its introduction into Parliament, nor who were directly advised of its introduction. Similarly, an article in The Australian on 6 March 2001 reports that the SA IT Council and the South Australian Internet Industry Association were not consulted or made aware of the Bill's introduction. We request your advice regarding the organisations or persons with whom you or your office consulted on the Bill.

EFA's Executive Director telephoned your office on 9 November 2000 and requested a copy of the Bill and was advised a copy would be mailed in the next few days. Four months later EFA has not received same. In the meantime, however, EFA obtained a copy from a another source who received a copy from your office.

We suggest that a priority be placed on arranging for this and other Bills to be made promptly available on the SA Parliamentary web site. This would assist in minimising any perception that secrecy as to the actual provisions of Bills is intended. It would also evidence some intent to implement the strategies set out in the IE2002 statement, issued in August 2000, which include "[t]o lead by example, Government will make public government information available online in digital format".

As this Bill is listed for debate in the Legislative Council next week, we request your prompt response by fax to 07 3424 0241 or email to mail@efa.org.au.

We also take this opportunity to advise you that claims that Electronic Frontiers Australia Inc. is a "porn peddler", as alleged by Mr Bill Muehlenberg of the Australian Family Association in his letter published in The Australian on the same day as your letter, are without basis in fact. EFA is not involved in the sale or distribution of pornography. EFA telephoned Mr Muehlenberg yesterday and he advised he had gained that impression from the media. We are unaware of such an allegation being previously published in the media. EFA is a volunteer, non-profit national organisation incorporated under South Australian law in May 1994. EFA is independent of government and commerce and is funded by membership subscriptions and donations. EFA members are users and operators of computer-based communications systems such as the Internet, in South Australia and other States and Territories, who are concerned with online rights.

Yours sincerely

Irene Graham
Executive Director
Electronic Frontiers Australia Inc.