Internet Regulation in Australia – an Opposition perspective
Netalert Conference
Canberra Convention Centre
4 December 2002
I believe that we are privileged to have been alive at the birth of a technological innovation that will transform society – the internet.
The real measure of the internet’s importance lies in the fact that it goes to the core tool of human development – communication. It elevates communication to a level never before imagined and in so doing creates a platform for human endeavour and development that nothing that has gone before it can match.
It represents the technical core of converging digital technologies. Internet Protocol is the holy grail of communications. The elegance and autonomy of the technology ensures the internet will be central to the development of human society for the foreseeable future.
For those who have access, the Internet offers vast opportunities in communication, education, services, entertainment and information. In a digital world, Australia’s geographical isolation is overcome for the first time creating unforeseen opportunities.
It has always frustrated me that the Coalition does not share this positive view of the internet. In the early period of the Coalition Government there was little understanding, let alone vision, in relation to the internet’s social, cultural and economic potential.
The rapid commercialisation of the internet ushered in a period of great excitement as internet users explored the potential of the medium. So-called ‘netizens’ led discussion through online communities of common interest. Futurists waxed lyrical about the societal transformation the internet would invite, the Nasdaq sky-rocketed and Neal Stephenson wrote a compelling yarn about where it was all heading in Snow Crash.
It was a heady time economically as the internet led the boom, and a challenging time legislatively. Policy makers around the world struggled to grasp the mere concept of the internet, let alone interpret the relevance and application of laws relating to intellectual property, consumer rights and privacy to the awesome spectre of the internet.
However the enthusiasm for the net was not shared by all. For many in society the mere prospect of using a computer was daunting. Many observed that the use of technology had displaced skills or even jobs. Change generally is disconcerting, but rapid change driven by technological innovation can be downright alienating.
The changes in society driven by the internet were always in need of considered and forward thinking policies; to prevent what we now know as the digital divide, but also to harness the opportunities that change presented.
It was in this environment that the Coalition faced some serious choices. Unfortunately they chose not only to ignore the potential of the internet as tool for empowering citizens, building social cohesion and seizing economic initiative, but the Coalition decided to exploit the trepidation and concern that many in the community felt about the internet. Particularly those parents who for ages thought Lara Croft was the new girl at school.
For the Coalition, the internet emerged as a convenient scapegoat for genuine community concern about some particularly concerning and divisive social problems.
This is demonstrated by the two primary legislative instruments concerning the Internet that the Coalition introduced during their time in office:
- The Online Services Act 1999; and
- The Interactive Gambling Act 2001
Both of these Acts were introduced as convenient solutions to address what the Coalition described as fearful emerging threats. In the case of the Online Services Act, innocent eight year olds would be victims to unscrupulous purveyors of porn or something worse. In relation to the Interactive Gambling Act, imagery of a poker machine in every lounge room became the Coalition’s slogan.
In effect this legislation and how the Coalition presented it served to vindicate pre-existing trepidation that the internet was something to be feared. But perhaps worse, it purported to ‘fix’ these problems. This is both irresponsible and dishonest.
Particularly when the big political picture was that the Coalition were trying to get T2 through the Senate.
The cynical political game of the Coalition is exposed by examining their inconsistent position on the issue. In November 1998, when internet content issues had the industry pretty focussed but not too many others, the Minister said:
“There is only so much that Governments can or should do. We can crack down on illegal activity, and we can work with the industry to minimise potential problems, but we can’t replace the guardianship role of parents.
The point was made that there were existing laws that could deal with illegal content, and it was unrealistic and inappropriate for the Government to take a nannying role in this regard.
But of course the Telstra sale- induced politicking soon settled in, and this approach did not last long – it was only about four months later in March 1999 when Senator Alston announced to a shocked and outraged internet community that had worked hard to prepare a draft code of practice, that:
“The Government will establish a regime to regulate the carriage of content over the internet”
It was no coincidence that the T2 legislation was passed less than a month after the passage of the Online Services Act. I would like to remind you that the vote of moral conservative independent Senator Harradine was needed to pass T2. It is a reasonable conclusion to draw that the passage of the Online Services Act was a direct play by the Coalition for his (Harradine’s) support for the T2 sale. It is also a reasonable conclusion that Netalert was based in Tasmania because for the same reason.
Following the passage of the Bill, Senator Alston was described as the “global village idiot” and “world’s biggest luddite”. It stuck. Equally, it leaves concerned families and users horribly under-prepared to deal with the realities of the internet.
During the debate on the Online Services Act, it was established that it was not technically feasible to censor the internet in the way the Coalition proposed.
In my view, the object of the Bill, which was to create a filtered content environment free of sexually explicit material, was only ever attainable for those who sought it, through the implementation of the Industry Code of Practice developed by the Internet Industry Association. The development of this code required the full cooperation of the industry. Fortunately for the Coalition this cooperation was forthcoming. Hence the myth that the Act made a difference was perpetuated. Following this through, this means that the Act itself misrepresents the reality of the situation, and therefore warrants amendment.
There is continuing evidence that the Online Services Act is unworkable. Most recently, the Council of Australian University Librarians made a submission to the Senate Inquiry into the Role of Libraries in the Online Environment. This submission included an opinion that: “there is little they can do to ensure that they are not in technical breach of the Act[1]“.
Apparently the Australian Vice Chancellors Committee has had negotiations with the department and appropriately regulatory authority seeking an exemption from the operation of the Act in relation to members of their immediate circle of students and staff, but so far the matter has not been resolved.[2]
So when the Coalition claims to be leading the world, they may be in expedient, short term political solutions in relation to online content, but scratch the surface and you can see that the Online Services Act has little credibility. The experience with interactive gambling reinforces this view that the only leadership being offered is in cynical manipulation of vulnerable people, in this case, problem gamblers.
In relation to Interactive Gambling, the Coalitions flawed approach saw the creation of new criminal offences for providing interactive gambling to Australians in a new tack on how to ‘ban’ certain content. The bottom line however is that this law does absolutely nothing to prevent Australians accessing interactive gambling sites off shore. Labor observed at the time:
The Government’s approach to interactive gambling is nonsensical, in fact, only one true rationale can be derived and that is blatantly political scare-mongering. Rather than act in the best interests of present and potential Australian consumers of Internet gambling services, the Government seeks to capitalise on the general public’s fears of gambling and misunderstanding of the issues, to the ultimate detriment of all Australians.[3]
The Netbets Senate inquiry, chaired by Liberal Senator Jeannie Ferris, specifically ruled out a ban on Interactive gambling. Here the Committee recommended:
That Federal, State and Territory governments work together to develop uniform and strict regulatory controls on online gambling with a particular focus on consumer protection through the Ministerial Council on Gambling.
This has not been done and Senator Alston has abrogated his responsibility to show leadership and implement this recommendation. The Coalition rejected a co-regulatory model in this case because the outcome it would produce did not suit their political objective.
Further, the Coalition used a report by the National Office of the Information Economy (NOIE) as justification for this Bill – yet a careful reading of the NOIE report reveals that NOIE believe there are worrisome flaws and dangers here. The NOIE report also acknowledges that there are greater protections offered to problem gamblers on-line than off-line and even NOIE concede that the online environment actually offers greater consumer protection and education measures.
NOIE concluded that:
Banning a new, and relatively little-used form of gambling is unlikely to disadvantage anyone wishing to be able to gamble.
But that didn’t stop the Coalition from demonising the Internet and from making misleading assertions it is the Internet, not gambling per se, that is the problem.
In stark contrast to the Coalition, Labor’s approach to Internet regulation has always been consistent and principled – we have argued that it is not technically feasible to regulate the carriage of internet content. We have also argued that any regulation of internet content, for example, strict license conditions for the providers of interactive gambling and requiring log-on access to prevent sexually explicit content being accessed by minors, must be undertaken in a credible and intelligent manner. It also must involve the state jurisdictions where appropriate.
In any account, managing content in this way is in many respects symbolic, with internet users in Australia accessing the vast majority of their content from overseas. There is still a case by taking responsibility for our own patch. No-one wants to allow people to be ripped off or allow illegal activities to proliferate online. It is detrimental to the credibility and reputation of nations who allow such activity to go unchecked. But there are laws that deal with these crimes.
There may be opportunities to improve consumer protection through licensing conditions for certain types of services offered online and there is plenty of opportunity to strengthen these laws. One such opportunity is online privacy. Unfortunately this was one area of law that the Coalition argued vigorously for a softly-softly approach.
But perhaps most important of all, Labor has argued that the best way to assist internet users to manage their content is to empower them with the knowledge and skills to do it themselves. This is particularly important for parents who express ongoing concern about what their children can access.
Even Netalert’s filter study commissioned earlier this year confirmed that when it came to using filters, there was a wide range of needs that were best addressed by different filtering methods. With acknowledgement that there is no suitable homogenous filter solution, the onus is now on the Government to accept the best point of content management is with the end user.
This was, and still is, a sensible, and more importantly, a workable approach. In the months leading up to the debate in parliament and since it is clear through the public consultation we engaged in, and by the submissions made to the Senate Select Committee Inquiry into the Broadcasting Services Amendment (Online Services) Bill that the community, especially the internet community, agreed with us.
It has been interesting to note that Netalert’s focus has drifted inevitably towards this education and empowerment approach. But there still seems to be a reticence to make a meaningful investment in the sort of constructive education campaign necessary to really educate end users to be confident in managing their own filter software, if they so choose.
It will be interesting to see if the review the Minister is conducting into the operation of the Online Services Act draws this out. It will be a real test of the Board of Netalert, in my view, as to whether they can convince the Minister to abandon the charade of the Act in favour of practical education strategies for internet users.
A recent paper prepared for asked the question: ‘Has the Online Services Act been effective in solving the problem of offensive and illegal content online?’[4], concluded that the Online Services Act is not an effective means of addressing offensive material content on the internet. Rather, the Act was ‘symbolic’ and only had a 6% success rate in finding offensive material.
In addition, the Minister might like to consider providing funding support for a broad-based internet users group that can be the voice for average internet users who are not necessarily technical experts, but can speak for the growing number of enthusiastic users in Australia.
Finally, I think it is particularly interesting that the Coalition has already pre-empted the outcome of the review in that they are already planning to draw a veil over the regime with legislative proposals to exempt the Australian Broadcasting Authority and the Office of Film and Literature Classification from the Freedom of Information Act.
FOI became an issue after the legislation came into effect, when in March 2000 the Sydney Morning Herald published an article that referred to an Australian site, which had apparently contained material considered to be offensive by the ABA.
The site had been issued with a take down order earlier that year in January 2000. Rather than take the site down, the owner simply moved it offshore. The publication of the web address of the site in the article subsequently prompted inquiries into what other web sites had been issued with take down notices by the ABA and why.
The ABA provided limited information under FOI and their decision to withold some details was upheld by the Administrative Appeals Tribunal following an appeal. So now the Coalition has a Bill before parliament which seeks to exempt the ABA from providing any detail at all about the sites they take down under the Online Service Act and why.
However, as the Administrative Appeals Tribunal has made clear, the Freedom of Information Act currently allows information not to be released if it would prejudice the operation of an agency such as the ABA and OFLC and such prejudice outweighs the public interest in freedom of information.
And as we have already seen, information that would reveal prohibited Internet content and prejudice the role of the ABA and the OFLC in policing that content can be withheld. That is exactly what the AAT decided under the FOI Act as it currently stands.
Everybody also agrees, and certainly Labor believes, that there is a strong public interest in the ABA and the OFLC remaining transparent and accountable for their decisions and actions in censoring Internet content. Labor’s response to the legislation, in particular Schedule 2 of the Communications Amendment Legislation Bill, will be in accordance with these principles.
I would now like to reflect on other issues relating to internet content. Foremost amongst these is spam: that most invasive and frustrating form of internet content,
Unsolicited Bulk Email, or spam has always caused a great deal of aggravation to internet users who have suffered from it. At best it is as irritation, cluttering up one’s inbox and slowing down the connection. However, at its worse, and it often is, it can contain content that is offensive, deceptive or even sometimes criminal.
Unsurprisingly, given the huge increase in the number of Australians who are venturing online, spam is growing as a widespread community concern.
72% of adult Australians currently use the Internet, either at home or at work, as do around 80% of small to medium enterprises. For all of these email is an important application.
Its invasive, offensive nature is doing more than any other type of online content to give the internet a bad name. It contributes to the general angst about the internet and in my opinion constitutes a barrier to some sections of the community going online.
Spam is also costly. These costs are undoubtedly hard to quantify, but according to the National Office for the Information Economy (NOIE) the worldwide cost to Internet users is around $16.8 billion annually. The annual cost to business is estimated at around $960 per employee.
These are big numbers, but even allowing for some over-estimation of these figures, the cost of spam to the economy is still a significant issue.
I should add unlike normal junk snail mail, spam costs nothing for the spammer to send. Instead the cost is borne by the receiver, the spamee, either directly, as the longer download times, and higher download rates result in a larger bill from ISPs, or indirectly, as ISPs pass on their costs to their customers.
Privacy is also a big issue. Spam does not necessarily cause breaches of privacy. Instead the widespread incidence of spam tends to represent a lack of good, enforceable privacy regulations.
Basically, spammers are only able to send unsolicited bulk email if they have lists of email addresses. This usually means that the spammer has obtained the email addresses, often through an unspecified method. The user is often unaware of how to remove their details from the spammer’s list, and may well be concerned that a purveyor of pornography or other offensive material may hold other personal details about them.
Often email addresses are collected and sold without the knowledge or consent of the owner. This usually indicates an in-principle breach of privacy for the owner of the address. Once again education of internet users has a key role in helping individuals managing the problem.
Unfortunately for users who have their email clogged with spam, businesses who are losing productivity, and for internet users everywhere who are paying for unsolicited bulk email, the Government has been happy to prevaricate over this problem.
For a very long while, the Government’s only response was a page on the website of the National Office for the Information Economy which basically claimed that existing laws were enough to deal with spam, and some guidelines for business which briefly touched on the use of email for direct marketing.
Then, all of a sudden, this year the Minister for Information Technology, Senator Alston decided that spam was an issue after all. He announced a NOIE inquiry into the issue. Several months later an interim report was produced. The final report was expected last month, but I have since heard it will now be delayed until January.
The 15 recommendations of the interim report include internet industry self-regulation, the education of internet users, and co-operation with the international community. These are all positive steps. However, the report neglected to spend any great time on the merits or otherwise of using legislation to address spam.
As part of Labor’s ongoing policy review, we are considering a stronger response to spam, including:
- the effectiveness of existing legislation designed to combat spam;
- the possible legislative mechanisms to cut the trade in email addresses;
- establishment of a legal presumption that individuals are entitled to be free of unwanted email;
- examine legislative methods that require senders of bulk emails to correctly identify themselves to recipients; and
- examine what remedies can deter breaches.
We will also be focussing on the public education objectives, cooperating with the internet industry and of course, international forums will play an important role in continuing the fight against spam. Unilateral action on behalf of Australia will never solve the problem.
Seriously though, Labor is encouraging input to this discussion paper which will be on my web site, www.katelundy.com.au/spam, and available from my office.
In conclusion, I would like to turn to the role the government can play in providing leadership and vision. The Labor opposition in the Federal Parliament believes that information technology can be used to create greater opportunity and reduce disadvantage in society.
For agencies and departments, this means setting an example. This will require transforming the management of public information in a way that addresses accessibility, privacy, security and critical infrastructure protection. We must invest in adaptable architecture, insist on open environments designed for future needs and explore in full the potential of open source software. Nothing less than a comprehensive national information policy is required.
This must be accompanied by a clear social agenda to close the digital divide. Whilst the internet provides the 21st century interface between Government and Citizen, it is far from being a ubiquitous medium. We need to work towards universal access, in particular broadband access, if we are serious about preparing for the future. It is entirely necessary and appropriate for government to intervene to close the digital divide from the bottom up.
This can be achieved by having a clear vision for a future Australia and understanding how central the innovative use of the internet and software will be to achieving this vision.
[1] Page Six, Submission by the Council of Australian University Librarians: Senate Inquiry into the Role of Libraries in the Online Environment 16-8-02.
[2] Page Six, Submission by the Council of Australian University Librarians: Senate Inquiry into the Role of Libraries in the Online Environment 16-8-02.
[3] http://www.aph.gov.au/senate/committee/it_ctte/gambling/contents.htm
[4] Has the Online Services Act been effective in solving the problem of offensive and illegal content online? Aveline E. Rubinshteyn November 2002
