[ EFA ] Electronic Frontiers Australia

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/  

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20 March 2001

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

Fax: 08 8207 1736 Page 1 of 11

Dear Mr Griffin

Subject: Classification (Publications, Films and Computer Games) (Misc) Amendment Bill 2000

We refer to the document "response Classifications Amend. Bill.doc" attached to an email message issued on 14 and 15 March 2001 by a Senior Administrative Officer in the Attorney-Generals Office and sent to members of the public who wrote to you to express their concerns regarding the Online Services section of the above Bill. A copy of this document was forwarded to EFA by various recipients and has also been posted on the SA Government's Talking Point Forum, apparently at the request of the A-G's office.

We draw your attention to the following:

Further information regarding the above and other statements in the document issued by your office is attached.

EFA remains concerned that the proposed legislation treats online publishers less fairly under criminal law than offline publishers and that it appears existing classification laws and related administrative procedures have not been adequately considered by legislative drafters. Further information in this regard is available in our letter to you of 7 March 2001, to which we have not received a reply, and in our comprehensive analysis of the Bill available at http://www.efa.org.au/Publish/sabillanalysis.html.

We urge the South Australian Government to suspend the Bill until its full ramifications have been investigated, criminal justice issues addressed and appropriate amendments made.

Yours sincerely

Irene Graham
Executive Director
Electronic Frontiers Australia Inc.

Encl.

EFA response to
Q&A document "response Classifications Amend.Bill.doc"
issued by SA Attorney-General's Office on 14 and 15 March 2001


(Note: Italicised paragraphs below are extracts from the Q&A document issued by the SA Attorney-General's Office. Non-italicised paragraphs contain EFA's comments.)
Thank you for your email expressing your views about the Classification (Publications, Films and Computer Games) (Miscellaneous) Amendment Bill 2000, which was introduced into the South Australian Parliament last November. You may be interested in the following background information about this Bill.

Are we the first?

South Australia is not the first Australian jurisdiction to legislate to regulate internet content. Western Australia, Victoria and the Northern Territory have already done so. If you are interested in these provisions, they can be found in the Western Australian Censorship Act 1990 (sections 99 ff), the Victorian Classification (Publications, Films and Computer Games) Act 1995 (Part 6 - On-line Information Services) and the Northern Territory Classification of Publications, Films and Computer Games Act (Part VII - Computer Services).
South Australia is the first Australian jurisdiction to make it a criminal offence to make available to adults information unsuitable for minors on the Internet. EFA believes South Australia will be the first Western democracy to do so. Such a law does not exist in the United Kingdom, Canada, New Zealand, the USA nor, to the best of EFA's extensive knowledge, in any other Western democracy.


What do the provisions do?


The South Australian Bill aims to subject online content to similar rules as apply to offline content.

The rules to be applied to online content are different from those applied to offline content. For example:

For further information, see Item 4 of EFA's letter to the SA Attorney-General of 7 March 2001.
http://www.efa.org.au/Publish/0103letter_to_sa-ag.html#4

It makes it illegal to make available or supply objectionable content online, which means content which is or would be classified X or RC. It also requires that matter unsuitable for minors, that is, R-level content, must be subject to a restricted access system so minors can’t access it.


Details of the classification criteria are published in the film classification guidelines, which can be downloaded from www.oflc.gov.au.

These film classification guidelines do not explain how they are applied to text and static images on the Internet, as distinct from moving images and sound in movies, for which the guidelines were developed.


Essentially, X material is non-violent depiction of actual sexual intercourse, and RC material is material that is so highly offensive that it is banned - such as child pornography, instruction in crime, incitement to commit crime, sexually violent material, etc.

Material classified RC is not necessarily "so highly offensive" that it should be banned. For example, the national Classification Board classified the film 'Romance' RC in December 1999. This decision was widely criticised by members of the public and the Classification Review Board subsequently overturned the lower Board's decision and classified the film R. The only reason it was originally classified RC was because the Classification Board considered the film could not be accommodated within the prescriptive guidelines for either the R or X categories. It contained no "highly offensive" elements, according to the Classification Board Report.


R-rated material is contentious material legally restricted to adults only.

According to the OFLC Guidelines, R-rated material "deals with issues or contains depictions which require an adult perspective". The Guidelines do not state the material is "contentious", nor is that word contained anywhere in the Guidelines or Glossary thereto.


The Bill is complementary to the Commonwealth laws. While the Commonwealth legislation deals with internet service providers and content hosts, the Bill deals with persons who make content available on the internet.

The Bill is inconsistent with the Commonwealth law. Unlike the Commonwealth Broadcasting Services Amendment (Online Services) Act, the SA Bill makes it a crime to make available material that has not been classified (but "would be" classified in a particular manner) and whether or not access to R material is subject to a restricted access system.

While the Commonwealth law requires ISPs and content hosts to take content down on receipt of a notice from the Australian Broadcasting Authority, they are not prosecuted or penalised unless they fail to take the content down by 6 pm on the next working day. No such opportunity is provided to content providers and Internet users in the SA Bill. Instead they will be prosecuted and subject to a fine of up to $10,000.


What online material is caught?

Material which is in stored form and accessible using an internet carriage service, is caught. This covers websites, newsgroups and bulletin boards. Ordinary email is excluded from the Bill. Real time chat, which is not stored, is not caught.

Other material that will be caught includes email to mailing lists which are subsequently archived on the Web and postings on effectively live web chat forums.

Moreover, the Bill makes providers of online chat forums, like the South Australian Government's Talking Point Forum, criminally liable for information posted by participants in the forum. Provision of chat forums in South Australia will become highly risky once the SA legislation comes into effect, due to the risk of prosecution of people who merely provide web space for such forums.


How are people meant to know how the content would be classified?

The offence is only committed if the person knows that the content is objectionable/unsuitable, or is reckless about whether it is or not. Recklessness involves knowing that there is a substantial risk that the matter is objectionable/unsuitable, but making it available anyway. Police must prove this. If they can’t prove that the person knew or was reckless, the person is acquitted.

The "recklessness" provisions are unworkable in the context of classification of online material. The SA Bill states "The question of whether taking a risk is unjustifiable is one of fact". However, the matter of how any particular material "would be" classified is not a matter of fact, it is a matter of opinion, a value judgement.
Under the proposed legislation content providers are damned if they make a genuine attempt to comply with the law and damned if they do not.
Content providers who make an effort to interpret the guidelines and assess the classification, but who make the wrong guess will likely find themselves in court. The defence they are offered is that they did not know, and were not aware of a substantial risk, that the matter was/would be illegal. If they claim this defence, they will then be accused of being reckless as to risk. To prove they were not reckless they need to show, at least, that they tried to interpret and comply with the guidelines. In so doing, they admit they were aware of a substantial risk that they could be wrong because the guidelines are vague, broad, subjective and the "correct" classification depends on a decision of the Classification Board, a decision which is not, under the law, required to be unanimous.
The matter of recklessness is further addressed in section 7 of EFA's analysis of the Bill available at:
http://www.efa.org.au/Publish/sabillanalysis.html#reck


Of course, if a person is worried and wants to be quite sure, he or she can have the proposed material classified before making it available online.

To date EFA has been unable to ascertain the procedure and cost for classification of proposed online content, indicating it is not presently possible to have proposed material classified before making it available online.

On 16 March 2001, EFA telephoned the Office of Film and Literature Classification (OFLC) requesting information on the procedure and cost for having proposed online content classified. EFA was advised that the OFLC does not classify Internet content for prospective online publishers; they classify Internet content only for the Australian Broadcasting Authority (ABA) and police. This confirmed previous advice to EFA. The OFLC representative stated that prospective online publishers should contact the ABA and provided the ABA's telephone number. A representative of the ABA stated that the ABA does not classify content for prospective online publishers and will only ask the OFLC to classify material on receipt of a complaint about existing online content. The ABA representative said prospective online publishers should contact the OFLC and was advised the OFLC had already been contacted and had referred the inquiry to the ABA.

EFA considers it is inappropriate for the SA Attorney-General's Office to issue statements advising that prospective online publishers "can have the proposed material classified before making it available online" without details of how this can be achieved, when the government agency responsible for classification is unable to advise of the relevant procedure and costs. EFA questions whether the South Australian Government discussed the matter of classification of online content with OFLC management prior to introducing the Bill.

Prior to enactment of any legislation that legislators purport offers online publishers an option to have material classified before making it available online, relevant issues should be addressed and resolved by the OFLC and State/Territory Governments. These include, but are not necessarily limited to:



Does the Bill mean it’s up to police to decide what’s offensive?

No. Police do not decide. The material has to be classified by the national Classification Board, using the nationally agreed guidelines which apply to films. The exception is where the defendant agrees with police that the material would have been classified X or RC. Police can invite the defendant to sign a form agreeing that the material is X or is RC. If the person signs, the notice acts as evidence and there is no need to have the material classified. Needless to say, people who don’t agree with the police won’t sign. The police will then need to prove the classification in the ordinary way. However, if police were right and the material proves to be X or RC, the defendant pays the classification fee.
As has been amply demonstrated in the recent case of the book 'Pictures' by Robert Mapplethorpe, South Australian police do not prove a classification "in the ordinary way". Not satisfied with a decision of the national Classification Board, the SA police appealed to the Classification Review Board, resulting in a book that was initially classified Unrestricted being classified Restricted, that is, unsuitable for minors - the equivalent of R online under the proposed SA legislation.
In effect, the police decided how this book would be classified. They were not under any obligation to appeal the decision of the national Classification Board, and if they had decided not to do so, the book would have remained classified Unrestricted.


Note that this procedure does not apply where the material is alleged to be R.

Evidently, the reason that this procedure only applies to material alleged to be X or RC and does not apply to material alleged to be R is because drafters of the proposed legislation consider it is not "fairly clear" what type of material would be classified R. The Second Reading Speech of the Bill states:
"...very often, even though an item has not been classified, it may be fairly clear on examination how it would be classified. For example, all child pornography will certainly be refused classification. In such cases, classification is [currently] required, even though there may be in reality no dispute over what the classification would be. To address this issue, it is proposed to insert a new clause 83A, which would permit the prosecution to serve the defendant with a notice asserting that the item was or would be classified at a particular classification. If the defendant does not dispute this, he or she may sign the notice, which can be tendered in evidence as proof of the classification. This avoids the cost and delay associated with classification, or obtaining a certificate of classification, where it is apparent to all that the item was or would have been classified in a particular way."

Since it is not "fairly clear" whether particular material would be classified R, an online publisher will not have an option to agree with police as to classification and thereby avoid paying the classification fee (as in the case of material alleged to be X or RC). An accused will have to pay the classification fee if the material is determined by the OFLC to be R.
At present, the fees for classification by the OFLC prescribed in the Commonwealth Classification (Publications, Films and Computer Games) Regulations do not include fees for classification of Internet content. If, as it appears, Internet content is to be classified as if a 'film', the current minimum fee is $770, that is, the fee for classification of a film for public exhibition, of 15 minutes running time. What is the "running time" of a web page or web site? By contrast, the fee for classification of an entire printed magazine is $130.
Prior to the SA Bill coming into effect, classification fees for Internet content that consists of text and static images should be determined in a manner that is not based on a minimum "running time" of 15 minutes. Classification fees relevant to the number of pages or images, or those applicable to publications would be less unfair to online publishers, many of whom provide content free of charge online, unlike the vast majority of offline publishers who receive income from their publications. Establishing more appropriate classification fees for Internet content may also minimise the cost to tax payers when police mis-guess the classification that would be given to Internet content and so cannot require the online publisher to pay it.

Further information on the matter of who decides what is illegal are contained in Item 2 of our letter to the SA Attorney-General of 7 March 2001.
http://www.efa.org.au/Publish/0103letter_to_sa-ag.html#2


Won’t the Bill stifle the discussion of ‘adult themes’?

Adult themes are taken into account in classifying films. However, they don’t necessarily result in the film being restricted to adults, or banned. Adult themes are permitted in M and MA rated films. At MA level, for example, content such as in ‘Saving Private Ryan’ (war theme) and ‘The Green Mile’ (death penalty theme) and ‘The General’s Daughter’ (rape theme) can be accommodated.
Both 'Saving Private Ryan' and 'The General's Daughter' were classified R by the national Classification Board. These films were subsequently classified MA on appeal to the Classification Review Board, further demonstrating the point EFA has previously made that online publishers cannot be expected to know how any particular material would be classified, since even members of the two Classification Boards do not necessarily agree and evidently those who drafted the SA Bill recognise this is not "fairly clear".

In October 1999, a group of Adelaide residents viewed and classified the film 'The General's Daughter' as part of the OFLC's Community Assessment Panels research.

Of the 20 Adelaide panel members, 8 classified the film R and 12 classified the film MA, that is 12 (60%) of them gave the film a lower classification than the Classification Board. These 12 Adelaide residents would have committed an offence under the proposed SA legislation if they had made the material available online based on their assessment that it would be classified MA, the evidence of which would be a Classification Board certificate stating the Board had classified it R.

While an online publisher could presumably appeal to the Classification Review Board after criminal proceedings have commenced against them, and the Review Board might grant a lower classification than the lower Board (as they did in the case of 'The General's Daughter'), how any particular material would be classified by a majority of either Board depends to a significant extent on the membership of the Boards from time to time and which particular members are assigned to classify particular material. Generally, a sub-group of the full Classification Board is selected to classify a particular film.

Further information on classification of 'The General's Daughter' is available on EFA's web site:
At M level, themes such as the holocaust/racial persecution (eg ‘Schindler’s List’) can be accommodated.
'Schindler's List' was classified in December 1993, prior to the enactment of the current Commonwealth and SA Classification Acts and prior to the introduction of more restrictive Guidelines for Classification of Films which became effective in 1996. Whether this film would receive the same classification today as it did seven years ago is questionable.


Adult themed material will only result in R classification if the theme is treated with a very high intensity.

Accordingly, it will be a criminal offence to make such material available online to other adults attracting a fine of up to $10,000, dependent on the views of the Classification Boards about the "intensity" of adult themed material.

In the case of the film 'The General's Daughter', the Classification Board stated in its report on the reasons for an R classification that:

"The film follows a murder investigation of a particularly heinous crime. The nature of the crime is horrific enough; however the tone is strengthened by the constant emphasis on psychological warfare and post traumatic effects of trauma [rape]. The murder victim, who worked as a military psychologist had earlier stated, 'We fuck with peoples' minds". As the investigation [of the murder] draws to a head, the audience is left to ponder the question, "What's worse than rape?". Given the intensity of the theme, and the visuals of sexual violence it is felt that some of the material may be offensive to some sections of the adult community".

Hence, the extent to which "adult themed material" will be censored by the SA Bill depends in part on whether a majority of the OFLC Classification Board members "feel" that the "intensity of the theme" is such that the information might be offensive to some people.


R level material can still be made available under the Bill, as long as it is subject to an approved restricted access system.

The SA Bill makes it a criminal offence to make available material that is or would be rated R, whether or not access is subject to a restricted access system. It states:
"75D.(1) A person must not, by means of an on-line service, make available or supply to another person any matter unsuitable for minors [i.e. is or would be classified R]: ... Maximum penalty: $10,000".

If it is intended to be legal to make available R level material if it is behind an approved Restricted Access System (RAS), the proposed legislation should state that, rather than making a RAS a defence to a prosecution.

In this regard the SA Bill is inconsistent with Commonwealth law which it is claimed to complement in "What do the provisions do?" above. The Commonwealth Broadcasting Services Amendment (Online Services) Act states:

"For the purposes of this Schedule, Internet content hosted in Australia is prohibited content if:
(a) the Internet content has been classified RC or X by the Classification Board; or
(b) both:
         (i) the Internet content has been classified R by the Classification Board; and
         (ii) access to the Internet content is not subject to a restricted access system"

In contrast, the SA Bill makes it a crime to make available material that has not been classified (but "would be" classified in a particular manner) and whether or not access to R material is subject to a restricted access system.

Furthermore, the SA Bill reverses the onus of proof, requiring online publishers to prove that access was subject to a restricted access system, rather than requiring the prosecution to prove it was not. The proposed legislation unjustifiably enables prosecution proceedings against any content provider whether or not a restricted access system was in place and when content was not made available to anyone other than adults. It is to add insult to injury to require a content provider to prove access was subject to an RAS.

EFA's comments on the technical issues relative to proving that a RAS was in place are contained in Item 5 of our letter to the SA Attorney-General of 7 March 2001.
http://www.efa.org.au/Publish/0103letter_to_sa-ag.html#5

There should be no undue restriction of the discussion of adult themes.

A definition of "undue" is the matter at issue. There is no question that the SA Bill makes it a criminal offence to make available detailed information on "adult themes" to adults, as well as to minors. In addition to the actual provisions of the law, uncertainty as to what is permissibly 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.
Further information on this matter is contained in Item 3 of EFA's letter to the SA Attorney-General of 7 March 2001.
http://www.efa.org.au/Publish/0103letter_to_sa-ag.html#3


Also, not all types of internet material are covered. A recording for business, accounting, professional, scientific or educational purposes is not a ‘film’, unless it contains an image which would result in an MA or higher classification. Hence, there should be no restriction of educational, scientific or professional discussion.
The reference to an 'image' above appears to have been taken out of context of the Classification Acts and without regard for the reason that Internet content is being classified as a 'film'. The suggestion that 'there should be no restriction of educational, scientific or professional discussion' indicates a misunderstanding of existing classification laws. Written/textual information on a computer screen is treated as a 'visual image' and is therefore a 'film' caught by the SA Bill irrespective of the whether the material is text and of an educational or scientific nature.

On 4 June 1999, during the time the Commonwealth Internet censorship legislation was in the Commonwealth Parliament, Mr Geoff Holmes, a solicitor in the Policy Division of the Civil Law Division of the Commonwealth Attorney-General's Department, advised EFA's now Executive Director that text on a computer screen is a "visual image" for the purpose of the Classification Acts and is therefore a film. The basis of this treatment was said to be as follows:

Hence, text on a computer screen is a computer generated image/visual image and thus a film. Therefore, the same Guidelines and provisions of the Act and National Classification Code apply to written material of an educational or scientific nature as to any other type of material. If it is or would be rated R applying guidelines designed for movies, it will be a criminal offence under the SA Bill to make it available to adults on the Internet.

A recent decision of the national Classification Board provides an example of educational information deemed to be matter unsuitable for minors and therefore a criminal offence to make available online under the SA Bill.

In January 2001, the national Classification Board censored pictures of normal vaginas contained in a serious magazine article about cosmetic surgery. The article aimed to inform women on the true appearance of normal vaginas after doctors had expressed alarm at the number of women requesting cosmetic surgery to make their genitals look more like the computer-edited images in magazines. Australian censorship laws prohibit detailed depictions of normal female genitals in publications classified Unrestricted, and any publications not classified Unrestricted are illegal to sell to adults in Queensland. Hence publishers of magazines such as Playboy and Penthouse edit photos of female anatomy so that they are not too detailed and can be published in Unrestricted versions of their magazines. Such edited photos give a false impression of the appearance of normal vaginas and sometimes indicate the woman in the photo has been genitally mutilated.

The publishers of 'Australian Womens Forum' magazine intended to publish a serious article in their February 2001 edition that aimed to educate women about the true appearance of normal vaginas and related cosmetic surgery. The OFLC Classification Board deemed this article unsuitable for minors, thereby warranting a Category 1 Restricted classification (the equivalent of R online under the SA Bill). The Board's report on its decision (L00/3180) states:
"In the majority of the Board's view depictions of genitalia in an article titled 'Lip Service' on page 50 warrants a Category 1 classification as they do not constitute discreet genital detail. Further, the depictions are prominent and contain a genital emphasis. In the minority of the Board's view these depictions can be accommodated at an Unrestricted classification as they are contextually justified within the serious nature of an article on cosmetic surgery in a publication which is principally a lifestyle magazine oriented toward women's health and sexuality."

As the above example shows, if the SA Bill is enacted it will be a crime to make available online not only "pornography" but also serious educational articles of a health and medical nature that are deemed unsuitable for minors.

Further information on the above case is available in:


Is it true that it will be an offence to have R material on the net, even if no minors access it?

The material must be protected by an approved restricted access system (ie a password or PIN). Otherwise, an offence is committed. This is because, if it is not protected, there is no guarantee that minors won’t access it. As long as it is protected by an approved system, there is no offence.

As detailed earlier herein, the SA Bill clearly states that it is an offence whether or not the material is protected by an approved restricted access system.


This is similar to the existing requirement that some publications must be sold in a sealed bag, even if all the customers who come into the shop are adults, or that only adults can be admitted to a cinema where an R film is screening.

The restriction may be 'similar' in principle, but in operation it is not. The requirement disregards both the nature and technology of the Internet. Further information on this matter and the difficulties of proving in a court that an RAS was in place is contained in Item 5 of EFA's letter to the SA Attorney-General of 7 March 2001.
http://www.efa.org.au/Publish/0103letter_to_sa-ag.html#5


How do we know the Bill won’t have a ‘chilling effect’ on free internet discussion?

The best indication is the fact that the existing laws in WA, Victoria and the NT do not seem to have had any effect of this kind.
Freedom of expression is chilled when people do not say what they would otherwise say because of fear of prosecution. It is not possible to know how many people in the above jurisdictions have been silenced by the introduction of criminal penalties applicable to speech.

EFA questions the merits of introducing new laws on the basis of what "seems" to be. Has the South Australian Government obtained information from the OFLC, or police, on classifications made under laws of WA, Victoria and NT?
Regardless, the effect of existing laws in other jurisdictions is not a good indication of the potential effect of the proposed SA laws because the SA Bill is more restrictive than other laws and the effect of the SA law will depend in part on the extent to which it is enforced.

Firstly, police in other jurisdictions may be more inclined to devote their time and resources to investigation, tracking down and prosecution of perpetrators of serious crimes that unquestionably harm members of the community such as child abuse, murder, rape, theft and so on. Evidently however police in South Australia have time and consider it a priority to spend time seeking out unnamed publications in bookshops and appealing classifications of the national Classification Board.

Secondly, other jurisdictions have not made it a criminal offence to make available to adults information unsuitable for minors. South Australia will be the first.
Other 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.

Furthermore, 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.

I hope this is of assistance to you in evaluating the Bill and thank you for your comments.

EFA remains concerned that the proposed legislation treats online publishers less fairly under criminal law than offline publishers and that it appears existing classification laws and related administrative procedures have not been adequately considered by legislative drafters. Further information in this regard is available in EFA's letter faxed to the SA Attorney General on 7 March 2001, to which we have not received a reply, and in our comprehensive analysis of the Bill available at http://www.efa.org.au/Publish/sabillanalysis.html.

EFA urges the South Australian Government to suspend the Bill until its full ramifications have been investigated, criminal justice issues addressed and appropriate amendments made.


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