Examining the regulatory and legislative future of Australia's on-line economy and society

A Keynote Presentation by Peter Webb, Chairman of the Australian Broadcasting Authority

The 1996 On-Line Services Regulation Forum - IBC Conferences, The Boulevard Hotel Sydney April 24 1996.

(This is http://www.anu.edu.au/people/Roger.Clarke/II/ABAWebb.html
See history and links at end about the official Australian Broadcasting Authority WWW site, critiques of this speech and Peter Webb's response to the critiques.)

As you are all aware the ABA is presently close to the end of the allotted time within which it was required by government to inquire into the content of on-line services and report its findings.

30 June is the deadline and we will, of course, meet it.

I am not yet in a position to give you an idea of the terms of our findings - it is the privilege of government to be among the first to find that out, although we will publish our report - and, in any event, we have not yet determined those findings.

But I can report on the responses we have had to our issues paper, and I'll do that briefly, and I then want to deal with two issues that are of particular importance in this debate.

They are:

    1. The need for the on-line industry to arrange its affairs so that it can speak to the community and the government with a representative voice about matters that are clearly of community concern, and
    2. The issue of freedom of speech - an issue dear to the hearts of many of our submitters, and dear to the hearts of the global, and predominantly American, on-line community.

Submissions to the ABA

To date, the ABA has received 213 submissions by way of response to its issues paper.

We have had substantial responses from academia, educationists, the government sector, from various religious, and from the general community.

The online community is well represented across the board in those sectors.

Under the category of "users" the ABA received approximately 100 submissions.

The majority of them did not address specifically the questions raised in the issues paper.

Most submitters in this category had heard of the investigation through other users, and were concerned with censorship and freedom of speech issues.

A majority of submitters expressed concern that adults would not be able to visit adult sites, and thus would be treated as children in order to protect children.

All submitters found this unacceptable.

From the education sector (and we have made a distinction between educationists and academics) came strong support for the development of some form of codes of practice and for an independent complaints handling body.

From academia the main trends in submissions were towards the need to preserve freedom of expression, particularly in an academic context.

A code of practice was supported, but universities have particular needs and concerns which should be addressed in any code of practice.

It was suggested that the ABA may have over-simplified the online environment, and that we should re-visit our conceptual framework.

A need to educate the community, so that there is a better understanding of online services, was identified.

International collaboration is essential, they said, but developments in the United States were terrible.

Community groups almost unanimously stressed the need to preserve freedom of expression.

A small number of religious organisations indicated that they believed that the protection of childrens' rights was far more important than the right to view obscenity.

In the government sector the principal comments were to the effect that

Given the timeframe within which the issues paper had to be prepared, and from a standing start at that, we feel that it has survived the scrutiny of our submitters reasonably well.

We acknowledge the concerns of those members of the online industry who have been happily and uneventfully working online for many years now without encountering untoward material or, for that matter, the prospect of some form of regulation.

Law abiding operators in a field are always the hardest to convince that there is a need for regulation, and the online sector is no exception to this understandable rule.

The splintered nature of the online world is a another reason why such a jaundiced eye is fixed upon those proposing regulation.

This factor goes to the heart of what will need to be one of the fundamental building blocks of industry self-regulation - the formation of satisfactory representative arrangements for the industry.

Industry association arrangements

There are a number of reasons why the online industry will need to make suitable arrangements of its affairs so that it can speak to both the community and to government with a representative voice about matters of concern to it and the community.

I believe this is already widely recognised.

Late last year Roger Buckeridge and Terry Cutler produced their important report, The Online Economy, and they made the point that if Australia was to maximise its opportunities from networked commerce,

Their report identifies that there is much to be done by Australian content developers, publishers and online service providers to build their commercial environment.

They proposed something called the Online Forum for content, network and service providers, to be initiated by industry participants as a means of conducting a continuous dialogue with the legislature and the regulators, and to drive into place a strongly competitive, self-regulatory framework for the online industries.

The urgency with which this proposal should be actioned cannot be overstated.

And that's because the dialogue is at present rather onesided - not so much a dialogue as a monologue.

And government is unlikely to slow the pace at which it is considering the various actions it is proposing to take.

The most imminent of developments in the government sector are the proposals being considered by the Standing Committee of Attorneys General.

At its last meeting in Darwin in March the Standing Committee considered the latest draft of the offence provisions it is considering for objectionable material on the Internet.

The NSW Attorney General, Mr Jeff Shaw, announced earlier this month that his government would make it an offence to transmit, advertise, permit access to and retrieve such material through online services.

Persons contravening the proposed laws could face prison sentences up to a year or fines of up to $10,000.

Corporations will face even stiffer penalties, including fines of up to $25,000.

The Attorney General said that negotiations are continuing between the various Australian governments in order to achieve the aim of a national standard, and that NSW recognises that national uniformity is desirable.

Mr Shaw also said that the planned legislation will promote the development of industry codes of practice in consultation with online service users and providers, creating guidelines that service providers will need to meet.

The Standing Committee will meet again around the middle of the year to review progress.

There is a strong probability that at that meeting final Standing Committee approval will be given and that legislative action will flow.

If this should occur, it would seem likely that the new laws will begin to operate throughout Australia on and from 1 January next year.

Whatever the outcome of the Standing Committee's deliberations, the online industry must be on notice that Australia-wide legislative action seems inevitable and not far away.

There has been a sharp reaction to Mr Shaw's announcement.

Commentators have called it a wide variety of things.

It is, in the eyes of some, "technically unworkable, morally reprehensible and politically opportunist' [No place for cyber-censorship in a free society, McKenzie Wark, The Australian 4.4.96], "nothing short of wowserism" [Futile moves on net porn, Jon Casimir, The Sydney Morning Herald 4.4.96], and "dumb and dumber" [Our leaders' decisions get dumb and dumber, Jeremy Horey, The Australian 16.4.96].

One can understand these viewpoints, although not the hyperbole, but they fail to appreciate that what Australia's Attorneys General are doing, by way of what are essentially new criminal laws, is providing the necessary legislative back-up for the obvious and worst cases of their kind, not necessarily for every case of their kind.

I do not think this is at all understood by an industry which has been upset by the recent action of the United States Congress in enacting the Communications Decency Act, 1996.

And this failure to connect, between industry and government, seems to me to mark almost every debate about the Internet.

On the one hand defenders of the online phenomenon routinely claim that because it is impossible, technologically or otherwise, to apply regulatory rules unflinchingly across the entirety of the traffic on the Internet, it is pointless to attempt to do so.

The point that is being missed here is that very few systems of regulation, whether they be traffic laws, corporate fraud laws, street offence laws, drug laws, laws that regulate the sale of cigarettes or liquor, taxation laws and so on, are either designed to operate, or in fact operate, so as to ensure every breach is brought to account and dealt with.

Many crimes, of all kinds, go unreported and uninvestigated, particularly less serious offences.

Sometimes crime is reported and investigated, but not prosecuted.

Sometimes crime is reported, investigated and prosecuted, but not otherwise punished.

In other words our criminal justice system is a regulatory system which does not claim to be universally applied.

We all know it doesn't bring to account every breach, and in fact we know that it is not designed to do so.

Indeed it would collapse under its own weight if it did do so.

In a phrase the criminal justice system is expected to be administered with discretion.

It may be because I have been an insider to the criminal justice system that I understand this better than some.

For the online defenders the point I am trying to make is that if it is good enough for the criminal justice system to apply partially, and yet still satisfy the general community expectation, objectionable behaviour online is not going to be ignored because it can't be treated by the law in a complete fashion.

In other words, coming back to the proposals of the Attorneys General, there is a large gulf of appreciation between the industry and the law-makers, and the cultural approach each is applying to the issue seems certain to guarantee that there is most unlikely to be a meeting of the minds on the matter.

This is a shame because there needs to be a reconciliation between the two points of view, and each culture will only profit from such a reconciliation.

But it will be doubly a shame for the online industry in particular if it cannot organise itself to speak to government about matters such as this, because it will feel, and therefore be, the loser.

Its perspective badly needs to be built into government thinking, but government cannot delay too much longer before seeking to meet community pressure for action in an area of policy marked by such strong emotions.

I believe it is generally known that one of the major defences to the application of these new laws is compliance with an applicable industry code of practice.

Such a code is designed to set out guidelines for users of online services or online service providers, and is to be approved by the participating ministers.

Such a code may relate to all online services or to a particular kind of online service, such as web sites, and, importantly, it may apply, incorporate or refer to any document formulated or published by persons or bodies that the participating ministers consider have an appropriate interest in the content of industry codes of practice.

This seems to suggest that the work of a body like the ABA, the content regulator for broadcasting, or like the OFLC, the content classifier for film and literature, might usefully be appropriated by the ministers when and if they see fit.

Overall, the scheme the censorship ministers seem to have in mind at this stage, albeit unambiguously criminal in nature, does provide the online industry with opportunities to bring forward comment, suggestions and ideas and to have them incorporated into the new laws so as to provide some of the balance the industry feels is missing.

But this opportunity cannot be realised without the industry making the necessary arrangements to speak with an industry voice, or with sectoral voices at the very least.

Elsewhere on the government front the industry will have noted that the new federal government's online policies, which are quite detailed, and which show evidence of considerable thought, squarely address the regulatory issues.

The government says that it will adopt a multi-faceted approach to the content regulation of the online industry in consultation with the community, the online industry and the states and territories.

It intends to establish a commonwealth/state Online Government Council under the Council of Australian Governments (COAG), which will have the role of coordinating government efforts, encouraging collaboration where appropriate, and avoiding costly duplication.

The government's policy says of the Council

The policy also says that

It also seeks to reassure the online community that

This policy seems designed both with a focus, to restrict its operation to actual areas of concern, and with care, to allow the online community to play a part in framing government and regulatory policy.

And it also looks to one of the most important of matters in any community response to matters of widespread public concern - the role that information and education can play in meeting concern and upset.

The coalition policy goes on to say

This is a most important initiative, and one that should be welcomed by the online industry because of its explicit recognition of the industry's role.

Believing as it undoubtedly does in the power of expression, the industry must acknowledge that efforts at community education, and at industry education as well for that matter, are clearly a good thing, and will do much to help us all both to find the proper level at which community concern should be pitched, and to demystify "cyberspace".

But the industry will want its views to be represented in any such educative strategy, and, once again, it will need to have in place structural arrangements that will permit this to happen.

Without industry input, educational strategies might end up being the next battleground between the industry, law-makers and regulators, and this is a battle which, like the one being conducted over the laws of the Attorneys General, doesn't need to be had, and can be avoided by representative industry communication to government.

I do appreciate, I must hasten to add, that the challenge for the industry on this front is not an easy one.

I know that people of good will in the industry are trying hard to manufacture assemblages of industry players with a view to attracting a sufficiently critical mass of them to be able to say that they represent the industry, or a substantial sector of it.

I wish them all well, and I acknowledge that no one association is likely to emerge in the near future which will satisfy that requirement.

However, I believe it is arguable that there is room for all the various pretenders to the industry association throne to be united, if not structurally, then by way of arrangements between them.

In other words, one industry association may not be a prerequisite to integrated industry representation, but arrangements between several such bodies, provided that between them they cover a significant proportion of the field, could do the job.

It needs to be emphasised that the job needs doing, needs doing well, and needs doing soon.

But there is a very real danger that the industry may, in fact, be so intimidated by the challenge that the initiatives currently being taken might fizzle out.

Relief may be at hand, however, in the form of another government initiative.

It is coalition policy to establish a body called the Information Policy Task Force, which will be

The information policy task force, by reference to its role and composition, looks as though it has been designed as a de facto online forum for the fledgling industry.

The government, it seems, has foreseen the problem from the vantage point of opposition and, if the task force could be established quickly, it would fill the gap that has grown up between the industry and government, and provide the industry with the delivery mechanism it needs for its views.

In the short to medium term at least, this looks like an idea whose time has come.

Freedom of speech

Across the spectrum of submitters, we have found many who describe themselves as "Citizens of the Internet".

Some of these now claim allegiance to the country and community called "the net", and disavow their actual citizenship.

This notion of an ethereal place called "cyberspace" is a strong one among "netizens" - citizens of "the net".

Only in cyberspace, it seems, can the proponents of personal freedom find refuge from societal constraints of the kind imposed upon film, literature and broadcasting.

Many netizens refer to cyberspace as a place which represents the last bastion of free speech.

It should be preserved, they say, in order for "free speech values" to be able to apply very strongly.

Only the Internet, they say, has a "unique capacity to liberate discussion and self- expression".

"The Internet is a large and harmonious multi-racial community. It is a world where colour, creed and race are irrelevant to the majority, sex is not a matter for discrimination, and tolerance of differences is a way of life", they say.

There is quite a lot to be said for these points of view.

Freedom of speech is a freedom which should never be lightly diminished, and that section of the Internet community that has fears about the potential for new laws to radically affect them, and the freedoms they value, is entitled to protest, and to have its protest assessed and valued.

There is an immensely respectable philosophical provenance for our personal freedoms.

John Stuart Mill's essay On Liberty, written in 1859, has become, together with John Milton's Areopagitica, written in 1644, the classic argument for free speech in the English language.

Milton the Republican, as George Sabine says of him, "could do what few men of his age could do: he could look with equanimity on the multiplication of sects and parties as experiments in the search for new truth and new freedom". [A History of Political Theory, George H Sabine, 1937, p 509.]

He was, unfortunately, not so tolerant of Roman Catholics, but his Areopagitica has been said to be the finest argument ever written against the stupidities and futilities of censorship. [Ibid p 509.]

John Stuart Mill said that all mankind has no right to silence one dissenter - he was really claiming the right to think, to investigate and to know as moral attributes inseparable from the dignity of a rational being. [Ibid p 666.]

Mill was mainly concerned, it must be said, with the possibility that mass-opinion, expressed through majorities, might itself be repressive.

In the words of Sabine, "His essay was in a sense a defence of liberty against democracy". [Ibid p 665.]

Nonetheless, Mill's name is commonly invoked today as one of the original intellectual wellsprings of our fundamental freedoms.

According to Mill

So "harm to others" and "self-protection" are the only bases upon which Mill would concede that the exercise of constraint by one person over another is justifiable.

The Australian law professors, Enid Campbell and Harry Whitmore, point out that the concept of harm to others is so accommodating that it encompasses Lord Devlin's defence of the legal enforcement of morality. [The Enforcement of Morals (1968).]

As they put it

J S Mill has other critics as well.

Nietzsche, the author of Thus spake zarathustra, liked to refer to him as "that blockhead" [History of Western Philosophy, by Bertrand Russell 2nd ed (1961) p 730.], and Darwin chided him (and others) for saying that moral feelings are entirely learned during each individual's lifetime. [The Descent of Man (1871) p 71.]

Nevertheless, his name will continue to be invoked in connection with the ideal of freedom of thought and expression, and deservedly so.

And "citizens of the net" are usually to the forefront in that invocation.

But the idea of an entirely unconstrained freedom of expression, however much it might be thought to be desirable by those who yearn to be entirely uninhibited in at least one part of their lives - in this case in their "wired" existence - does not survive examination.

As I've noted, Mill could justify the exercise of a constraint by one person over another in order to prevent harm.

Essentially what Mill proposed

Campbell and Whitmore go on to say that "The line separating paternalistic laws from those justifiable on Mill's self-protection principle is very fine". [Ibid p 9.]

And a much more recent essayist in this field has said, although this is not presented as the last word on the topic, merely one of the latest

This is Stanley Fish, a controversial and formidable author, and scholar of Milton, who says that the first amendment to the American Constitution is the first refuge of scoundrels, and who suggests that

and separately

Well what do we make of these many and varied views on freedom of speech?

All I can say is that free speech values are invoked in aid of many causes, for some with more validity than for others, and the job of judging where the greater merit might rest is a tough one.

As Lord Devlin has observed

So it seems that what is regarded as a human weakness lies entirely in the eyes of the beholder, and it often implies a moral judgment.[Freedom in Australia p 9.]

Regrettably for netizens, moral judgments have long been made in fields that are analogous to the fields of Email, newsgroups and bulletin boards, Internet Relay Chat, and the World Wide Web.

Society has already made rules for telephony, radio, video and television, for books and magazines, and, more lately, for computer games.

For that matter even literal speech has been limited since the earliest times of legal memory by the law of slander.

I have said before that, instinctively, Australians are not banners, although the OFLC does indeed ban, by refusing to classify, publications, films and computer games that

But we are a tolerant people who understand that adults should be, in the main, free to engage in activities that cause no harm to others.

Our response to the fact that different tastes in film, television and literature etc exist within our community is usually to classify, not to ban.

We believe in providing consumer information to Australians so that they can make informed decisions about what they want to view or read.

It is only the smallest proportion of materials, relating to matter about which there is a near community consensus that it is truly objectionable and offensive, that is refused classification and, therefore, legitimate distribution in Australia.

The signals for the online industry are plain.

They are found neatly summarised in the submission of the Western Australia Censorship Office, which says

It is clear that government will expect the industry to do what industries like the commercial television and radio industries have long done, and to work together to define a competitive framework which respects community needs and concerns.

Both FACTS and FARB have lengthy and respectable records of industry representation and they have demonstrated they can make self-regulation, through industry codes of practice, work.

So too has the community broadcasting sector.

The CBAA is comprised of many diverse groups, displaying all the diversity of view one would expect from a grass roots organisation, yet it too has signed off on codes of practice.

Quite apart from the fact that Australians, like most people, don't like bringing things into their homes that have the potential to disturb their domestic sovereignty, there is a business imperative as well.

The Internet has the potential to turn into a moneyspinner for many commercial operators, if their entrepreneurialism can find the keys to unlock its commercial mysteries.

There is every prospect that they will find commercial applications of wide appeal, and many of them will revolve around ease of access to domestic dwellings.

Plenty of Australians are still reticent about the television and radio programs that come into their homes - some viewers and listeners think they can be the vehicle for offensive and disturbing information and entertainment.

And that's after forty years of television and sixty years of radio in this country.

They won't respond well to an Internet which appears to carry much more objectionable and harmful material than radio and television will ever carry.

However it is worth identifying and focussing on Internet sectors to try to establish just where objectionable material is likely to be found.

After all, there is a tendency to speak of the Internet as one indivisible entity, to assume that objectionable material is ubiquitous throughout the Internet, and to further assume that regulation, of whatever kind, should be equally ubiquitous.

Internet activities, as a number of commentators continue to point out, are many and varied.

Some of them are closely analogous to activities with which we are all familiar.

Email, particularly one-to-one email, is closely analogous to telephony.

One-to-many email is closely analogous to a party line, something that has virtually disappeared these days (despite the scanning operations conducted by low-life characters of the mobile phone conversations between people using analogue technology).

Newsgroups are analogous to international meeting places where people can gather , talk informally with others and discuss matters of common interest.

The World Wide Web, which is the single most important development in online services during the past few years, has greatly simplified the provision of online services.

But I'm not sure that it has a close analogy with any concept already familiar to us.

It is partly a collection of billboards, part-newspaper/magazine, part electronic encyclopaedia and part-archive and library or publishing house.

Of course, the transition, which seems inevitable, from narrowband to broadband capacity means that these services will undergo further conceptual change.

By the end of the century online services are likely to be much more a part of everyday life than at present.

They are likely to provide an important means of communicating socially, shopping, effecting financial transactions, and conducting business generally.

They also have the potential to become a major source of entertainment in the home and of educational materials in the school.

This potential is likely to be concentrated though, it seems, in the World Wide Web.

Email will go on being email, and newsgroups will go on being newsgroups, albeit that they will work better and faster over time.

But they are unlikely to undergo fundamental change, and they are likely to remain analogous to telephony and meeting places.

It would seem sensible, therefore, to treat them in ways analogous to telephony and meeting places.

We don't actually regulate the content of private telephone conversations, where true freedom of speech actually exists, other than for criminal law enforcement purposes (phone tapping) or for information services (the 0055 or 190 services), although it is true we have made it a federal offence to use telecommunications services to menace or harass other persons, or to be offensive.

In the main however, we have found it reasonably easy to distinguish between private and public purposes so far as the use of telecommunications for telephony is concerned.

Our issues paper dealt with this distinction and 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.

The online environment provides us with a much harder task than we have traditionally faced as we try to make these distinctions.

The dividing lines are more blurred and, accordingly, workable boundaries should be our aim for the present, rather than attempts to distil distinctions based on principles that have no ready application in the online environment.

At the risk of needless repetition, I have to emphasise that this work will have to be done, and, in the interests of good policy development, the online community needs to be involved in the task.

So both the industry and government probably need to reach out to each other on a number of fronts.

If they do so, better public policy is likely to be the result, and the public interest, a concept as elusive as freedom of speech, but always worth pursuing nonetheless, is more likely to be served.

Thank you.

History and links

2 May 1996: The electronic version was supplied by the ABA and was converted from all upper-case to HTML. Footnotes in the original have been moved to the body of the text in [square brackets]. Placed on Roger Clarke's WWW site. - Robin Whittle

10 May 1996: Typos and odd characters fixed. The ABA is planning to put a copy of this speech on their WWW site http://www.dca.gov.au/aba/hpcov.htm .

Roger Clarke's critique of this speech is at http://www.anu.ed u.au/people/Roger.Clarke/II/ABAWebbCommRC.html

My critique of this speech can be found in my content regulation directory http://www.ozemail.com.au/~firstpr/contreg This also contains URLs for several resources mentioned in the speech.

Mr Webb wrote a response to a first draft of my critique and this response can be found in the current directory, file ABAWebbResp.html My critique contains a brief reply to Mr Webb's response.

The Internet, through mailing lists, the WWW and Usenet news is able to support detailed, literate debates, whilst the newspapers only carry a few paragraphs, with some comment and little prospect for replies, correction or real debate. A magazine might be able to handle some of the detail and support a debate through an interview and letters.

This speech was reported in articles in the computer sections of The Australian, The Age and the Sydney Morning Herald on Tuesday 30 April 1996. As far as Roger Clarke and I are aware, the broadcast media - radio and TV - made no mention of this speech.

I am glad Mr Webb has addressed these difficult issues and made the text of his speech available for being placed on Roger Clarke's WWW site.

Robin Whittle First Principles Consulting. http://www.ozemail.com.au/~firstpr firstpr@ozemail.com.au