By and large the ABA Issues Paper reflects the flavour that developed during the preceding events (which involved the Department of Communications and the Arts, the Attorney-General's Department and a Senate Committee).
The Paper envisages a code of conduct developed by industry, with relevant regulatory and policy agencies looking over industry's shoulder, and advocacy groups participating in the process (rather than merely sitting on the outside looking in).
Rather than being a mere voluntary or 'self-regulated' code, it would be given teeth: the Commonwealth Parliament would enact legislation which renders illegal behaviour which did not conform with the code. [But the above is just my, maybe wishful, interpretation of what pp.24-35 mean!].
The rest of these notes highlight the aspects of the report I'm concerned about, and what I consider now needs to be done.
The ABA failed to do something vital that we understood they had undertaken to do. They read the Consultation Paper that arose from previous work by the other two agencies. But they state on p.8 that they did *not* read the submissions to those agencies, nor those to the Senate Committee, nor, it appears, the materials which accompanied the public event that Committee ran. That's a serious disappointment, because if the key materials had been accessed and absorbed, important weaknesses in the Issues Paper would have been avoided.
Hansard, Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies, Canberra, 4 April 1995, c. 200 pp. plus copies of overheads and materials provided on the day (presenters included Auer, Clarke, Huston, Slater, Wakeley and Worthington)
[but please tell me any I've missed!!]
In considering 'netiquette' (e.g. p.26), they might also consider:
The brief sections provided do *not* fill the reader with confidence that an adequate understanding of the technologies and services has been achieved. In particular:
It does not appear that the Paper directly confronts the challenge of defining what the acts are to which responsibility should be attached.
To 'publish' is to take responsibility for content, and hence to risk contingent liabilities in defamation, breach of confidence, breach of laws relating to pornography, anti-discrimination, racial vilification and other laws, etc.; whereas to make space available into which other people may place content is a valuable service, but is not publishing, and must accordingly involve less, and different kinds of, responsibility.
In reporting on a recent U.S. copyright case, Peter Knight wrote in ComputerWorld of 9 February (yesterday) that the judge had concluded that "'it wouldn't make sense' for simple vehicle providers - mere conduits - to be liable for infringements". A back end control is appropriate, however, i.e. once a service provider has reasonable grounds to believe that the content inside the free space may infringe the law, a responsibility can reasonably be imposed on them to take some appropriate and measured form of action (e.g. suspension of public access to that part of the material, pending clarification with authorities).
It isn't clear that the implications of the international nature of the net have been appreciated ("national borders are just speed-bumps on the information super-highway", as crypto-anarchist Tim May puts it).
In legal terminology, the net is trans-jurisdictional; so surely there has to be consideration as to what multilateral treaties exist that can be used to encourage regulatory authorities in, for example, Mexico to make life more difficult for people who make materials available that offend not only local laws, but the laws of most other countries.
The Paper does not seem to address the question of cultural differences within Australia. This issue has become very apparent in the United States, where a clash between the values of urban California and country Tennessee was central to a recent case.
The ABA may feel that this is catered for by the existing regulatory regime; but even if that's the case, many people may not agree.
The Paper discusses what might be called the 'industry-code-with-teeth' option, which many of us who've been involved feel fairly comfortable with. But it does *not* seem to address the question as to what other options exist, and why they are inferior, and in some cases highly undesirable (possibly on the grounds that they were discussed in previous documents by other agencies). Public availability of this discussion could be particularly important in holding off any serious backlash by 'law and order' devotees against what they might well see as an excessively permissive regime.
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Last Amended: 13 February 1996
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