The ABA Investigation into the
Regulation of On-Line Services:
A Reaction to the Webb Paper of 24 April 1996

The Chair of the Australian Broadcasting Authority (ABA), Peter Webb, provided a keynote presentation at the '1996 On-Line Services Regulation Forum' on 24 April 1996 in Sydney.

The presentation was reported on in hard-copy and electronic media, and has caused considerable concern among some groups of people. (It will be available at some stage on the ABA's own home-pages. In the interim, ABA staff faxed and emailed copies of the paper to Robin Whittle and myself on 2 May. Robin html'd it, and sent it to me for uploading onto the web).

This document contains my interpretation of the paper and, more importantly, its import.

Another commentary on the paper has been provided by Robin Whittle and is available at http://www.ozemail.com.au/~firstpr/contreg/bigpic.htm#Comm, and Peter Webb's response to that commentary is also available, at ABAWebbResp.html.

For the record, my personal views on regulation of the net are at ACSPanel960420. I also maintain what I believe to be the most comprehensive source of links on the issue.

Peter Webb's paper expressly set out to make two major points:

1. the 'on-line industry' needs to organise itself so that it speaks with one voice; and
2. freedom of speech is qualified in many contexts, and will be qualified in the context of the Internet as well. But these qualifications, at least within Australia, leave a great deal of scope for self-expression.

It's a paper well worth looking at (I'd have said 'erudite', but that would imply it was difficult to read, and it isn't). Many participants in these debates are likely to feel comfortable with the two main lines of argument, and the two main conclusions; at least, I am (:-)} (Mind you, anything that traverses John Stuart Mill, Nietsche and Bertrand Russell is bound to stir up some discussion along the way!).

Unfortunately, some of the obeservations contained in the paper do indeed provide cause for concern, and the remainder of this document examines those concerns.

1. State Government Initiatives

The paper is written as though the various State Government initiatives:

• had been and were being driven and drafted by people with an understanding of the Internet;
• would only ban materials that would be refused classification under the existing Office of Film and Literature Classification (OFLC) scheme; and
• would ensure that behaviour was not criminal provided that it complied with a code prepared by the industry subject to the purview of relevant regulatory agencies and advocacy groups.

Unfortunately, none of the above are true, especially given that the N.S.W. government has the pen in its hand, and has to date shown the least appreciation of the realities of any of the recent participants.

2. Impact of the ABA Investigation

"There is a strong probability that at [the SCAG meeting around the middle of the year], final Standing Committee [of State and Commonwealth Attorneys-General] approval will be given and that legislative action will flow" (p.5). The ABA's report will not be completed before 30 June (and will presumably be available to the State Attorneys-General some time after that, and made public later still). So it cannot be considered as part of SCAG's mid-year agenda.

It therefore appears from the paper that the ABA Investigation, and all of the effort that's been put into it by many people, is by and large irrelevant: the decisions will have already been taken.

3. Appreciation Shown of the Internet and Internet Services

The paper acknowledges that "it was suggested that the ABA may have over-simplified the online environment, and that we should re-visit our conceptual framework" (p.2). But it did not indicate whether it accepted the criticism, nor whether it was doing anything about it.

There are several elements of the paper which suggest that the ABA's understanding of the Internet is still inadequate:

• the notion of 'online services' remains problematic. During 1994-95, Karl Auer (PCUG), Tom Worthington (ACS), myself and a couple of others were successful in clarifying to the agencies then involved and the Senate Committee what 'bulletin board system' actually meant; but we don't appear to have successfully conveyed that a packet-switching mechanism, like any connectionless system, is not actually 'on-line'. 'Online' can reasonably be used as a descriptor of the media which are encompassed by the proposals, but only if a definition and examples are provided;
• the absence of any mention of terminal emulation (e.g. Telnet) and of file transfer mechanisms (especially ftp) is carried through from the Issues Paper of December to the conference paper of April;
• the Internet is not a medium but rather an infrastructure. There are many different media which use that infrastructure. It appears from the paper that the ABA considers its brief to extend to all Internet-based media (which is dubious, given the Authority's charter). On the other hand, "Our Issues Paper ... held out the prospect that it may be more appropriate for material which is essentially available to members of the public to be subject to a code of practice[,] than material which is essentially made available to an individual, or a small group of individuals" (p.20); and
• expression such as "[Australians] won't respond well to an Internet which appears to carry much more objectionable and harmful material than radio and television will ever carry" (p.18) appears to make the implicit assumption that Internet services are generally broadcast. They can be (e.g. email and e-lists work on a supplier-push model); but in most cases they aren't (e.g. newsgroups, the web, telnet, ftp and MUDs are demand-driven).

4. Regulation of Content Rather Than Media

No consideration appears to be being given to the argument pursued in at least the ACS submission that the focus on specific media (such as films, videos, games, newsgroups, email, e-lists, ftp, the web, MUDs, CU-SeeMe, MBONE, etc.) is the root of the problem.

There is considerable sympathy within the community for the proposition embodied in the existing censorship scheme, that some things are simply beyond the pale - roughly speaking, materials that are abhorrent to people generally (in particular, hard-core pornography and outpourings of racial or religious hatred), material involving minors (paedophilia), and materials "that promote, incite or instruct in matters of crime or violence".

Rather than continually chase technologies, why not regulate the content?

5. Conclusion

It would be valuable if Peter Webb personally, or the ABA, would explain to the community as a whole what, if any, role the Investigation is playing in the design of the regulatory scheme which is being developed.

I, for one, have offered to provide comments on a revised expression of what the paper refers to as the Investigation's 'conceptual framework' (if necessary, under a Non-Disclosure Agreement). It would be valuable if clarification could also be provided as to whether the ABA has indeed revised or re-written that chapter, and what steps have been taken to have the ABA's understanding of the technologies checked by technology providers, and by industry and community advocates.

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Created: 2 May 1996

Last Amended: 11 May 1996

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