Laws Content 1 Content Regulation and Restrictions on Free Speech (inc. censorship, gambling, spam…) David Vaile Executive Director Cyberspace Law and Policy Centre

Laws Content 2 Summary  Classification  Internet content regulation  Gambling and online services  Spam

Laws Content 3 Those cartoons…  ABC Media Watch criticises both the cartoons and the decisions in Australia not to print them (after fact)  mediawatch/transcripts/s htm mediawatch/transcripts/s htm mediawatch/transcripts/s htm  mediawatch/transcripts/s htm mediawatch/transcripts/s htm mediawatch/transcripts/s htm  What do you think?  Is it about law, ethics, free speech, respect… ?

Laws Content 4 GENERAL CENSORSHIP

Laws Content 5 CENSORSHIP: CLASSIFICATION of CONTENT OFLC - Guidelines for the Classification of Films and Computer Games resource.html?resource=62&filename=62.pdfwww.oflc.gov.au/ resource.html?resource=62&filename=62.pdfwww.oflc.gov.au/ resource.html?resource=62&filename=62.pdfwww.oflc.gov.au/ resource.html?resource=62&filename=62.pdf EFA - censorship outline Issues/Censor/cens1.htmlwww.efa.org.au/ Issues/Censor/cens1.htmlwww.efa.org.au/ Issues/Censor/cens1.htmlwww.efa.org.au/ Issues/Censor/cens1.html

Laws Content 6 INTERNET CONTENT Regulation

Laws Content 7 Content Regulation - United States  ‘Constitutional protection’ of free speech  First Amendment to the US Constitution “ Congress shall make no law... prohibiting the free exercise... or abridging the freedom of speech”.

Laws Content 8 Communications Decency Act 1996 (CDA) CDA ‘On a screen near you: Cyberporn’ xenia.media.mit.edu/~rhodes/Cyberporn/time.html ‘On a screen near you: Cyberporn’ xenia.media.mit.edu/~rhodes/Cyberporn/time.html xenia.media.mit.edu/~rhodes/Cyberporn/time.html Carnegie Mellon University study ‘Marketing Pornography on the Information Superhighway’Carnegie Mellon University study ‘Marketing Pornography on the Information Superhighway’ American Civil Liberties Union (ACLU) Civil Liberties Union (ACLU) Citizens Internet Empowerment Coalition (CIEC) Internet Empowerment Coalition (CIEC)

Laws Content 9 Action challenging the constitutionality of the CDA  American Civil Liberties Union v Reno 929 F Supp 824 (1996) Philadelphia District Court  Plaintiffs’ opposed two key prohibitions in the Act: s 233 (a) illegal to knowingly send a minor material which is legally ‘obscene’ or ‘indecent’; ands 233 (a) illegal to knowingly send a minor material which is legally ‘obscene’ or ‘indecent’; and s 233 (d) prohibits knowing sending or displaying of patently offensive messages, according to community standards in a manner that is available to a person under 18 years.s 233 (d) prohibits knowing sending or displaying of patently offensive messages, according to community standards in a manner that is available to a person under 18 years.

Laws Content 10 ACLU’s request for injunction against enforcement granted  Attorney General (Janet Reno) appealed to the Supreme Court 117 S Ct 2329 (1997) supct.law.cornell.edu/ supct/html/ ZO.html117 S Ct 2329 (1997) supct.law.cornell.edu/ supct/html/ ZO.html supct.law.cornell.edu/ supct/html/ ZO.html supct.law.cornell.edu/ supct/html/ ZO.html Commentary webofpolitics/fall2001/casons/ch2.htmlCommentary webofpolitics/fall2001/casons/ch2.html webofpolitics/fall2001/casons/ch2.html webofpolitics/fall2001/casons/ch2.html

Laws Content 11 Child Online Protection Act 1998 (COPA)  Second attempt  free_speech/censorship/copa.html free_speech/censorship/copa.html free_speech/censorship/copa.html  webofpolitics/fall2001/casons/ch3.html webofpolitics/fall2001/casons/ch3.html webofpolitics/fall2001/casons/ch3.html

Laws Content 12 ACLU v Reno II 217 F 3d 162 (2000)  free_speech/copa/3d_cir_opinion.html free_speech/copa/3d_cir_opinion.html free_speech/copa/3d_cir_opinion.html became ACLU v Ashcroft when John Ashcroft became the new Attorney-Generalbecame ACLU v Ashcroft when John Ashcroft became the new Attorney-General  recentop/week/ pdf recentop/week/ pdf recentop/week/ pdf March 2003 Third Circuit Court of Appeals struck down COPA as unconstitutionalMarch 2003 Third Circuit Court of Appeals struck down COPA as unconstitutional

Laws Content 13 CDA and COPA cases “... make it clear that to be constitutionally valid, US laws attempting to regulate Internet content must be very narrowly drafted and highly specific to maintain the delicate balance between the protection of children and freedom of speech and expression. ” Sutter, ‘Nothing new under the Sun: Old fears and the new media’ (2000) IJLIT Sutter, ‘Nothing new under the Sun: Old fears and the new media’ (2000) IJLIT

Laws Content 14 Useful links - American content regulation  ‘Communications Decency Act’ –  ‘The Legal Challenge to the Child Online Protection Act’  ‘Internet Regulation: Governmental v Individual;’ webofpolitics/fall2001/casons/ch1.html webofpolitics/fall2001/casons/ch1.html webofpolitics/fall2001/casons/ch1.html  ‘Content Regulation on the Internet’ iml.jou.ufl.edu/projects/fall01/song/page5. html iml.jou.ufl.edu/projects/fall01/song/page5. html iml.jou.ufl.edu/projects/fall01/song/page5. html

Laws Content 15 Content Regulation in Australia  Online content regulated by both Cth and State legislation.  Commonwealth regime: framework for regulating Internet Service Providers (ISPs) and Internet Content Hosts (ICHs). ISP: a person who supplies an Internet carriage service, consisting of service points within Australia, which enable end-users (members of public) to access the Internet.ISP: a person who supplies an Internet carriage service, consisting of service points within Australia, which enable end-users (members of public) to access the Internet.  Corporate intranets not generally regarded as ISPs because not accessible to the public. ICH: person who hosts Internet content in Australia.ICH: person who hosts Internet content in Australia.  Eg, a person with own website or server in Australia, and hosts content provided by a range of contributors

Laws Content 16 Cth legislative instruments  Classification (Publications, Films and Computer Games) Act 1995 (Cth) Classification (Publications, Films and Computer Games) Act 1995 Classification (Publications, Films and Computer Games) Act 1995  National Classification Code  Schedule 5 and Schdule 7 to the Broadcasting Services Act 1992 Broadcasting Services Act 1992 Broadcasting Services Act 1992

Laws Content 17 Content regulation in Australia (2) the States  Content providers, creators and users are regulated by State laws: the intentional publication and transmission of proscribed material online. While slightly out of date Volume 6, Number 1 (2000) of UNSW Law Journal is a good resource slightly out of date Volume 6, Number 1 (2000) of UNSW Law Journal is a good resource The article ‘The Government's Regulatory Framework for Internet Content’ is was written by Senator Richard Alston, former Minister for Communications, Information Technology and the Arts.The article ‘The Government's Regulatory Framework for Internet Content’ is was written by Senator Richard Alston, former Minister for Communications, Information Technology and the Arts.

Laws Content 18 State and Territory Content Regulation (3)  Legislation regulating publication and transmission of proscribed material online by content providers and content creators is different in each state and territory; some states are yet to regulate.  1999 Standing Committee of Attorneys-General’s group of State and Territory Censorship Minsters released draft model legislation  Aim: standardising censorship across states  However, consistent model could not be agreed upon and movement has since been abandoned.

Laws Content 19 States which have enacted censorship legislation include:  Victoria – Classification (Publications, Films & Computer Games) (Enforcement) Act 1995 (Vic)  Northern Territory – Classification of Publications, Films and Computer Games Act 1996 (NT)  Western Australia – Censorship Act 1996 (WA)  South Australia – Classification (Publications, Films and Computer Games) (On-line Services) Amendment Act 2002 (SA) in force December 2002 based largely on 1999 draft

Laws Content 20 States (cont)  NSW - Classification (Publications, Films & Computer Games) Act 1995 (NSW) did not include regulating content on online services Classification (Publications, Films & Computer Games) Act 1995 Classification (Publications, Films & Computer Games) Act 1995  Amendments in Schedule 2 Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 based on 1999 draft Commencement date not proclaimed for Schedule 2.Commencement date not proclaimed for Schedule 2. NSW Parliamentary Standing Committee on Social Issues inquiry into Bill recommended Schedule 2 be repealed LookUp/Committee/StandingCommitteeonSocialIssues?OpenNSW Parliamentary Standing Committee on Social Issues inquiry into Bill recommended Schedule 2 be repealed LookUp/Committee/StandingCommitteeonSocialIssues?Open LookUp/Committee/StandingCommitteeonSocialIssues?Open LookUp/Committee/StandingCommitteeonSocialIssues?Open 9 December 2002, NSW Attorney General announced "the Act will neither be commenced nor repealed until [Commonwealth Government's review of Commonwealth censorship legislation] has been completed and the findings have been considered."9 December 2002, NSW Attorney General announced "the Act will neither be commenced nor repealed until [Commonwealth Government's review of Commonwealth censorship legislation] has been completed and the findings have been considered."  Queensland and Tasmania have yet to enact any relevant legislation.  More information about state and territory content regulation: Electronic Frontiers Australia’s Internet Censorship in Australia

Laws Content 21 ISP and ICH Exemptions ISP and ICH Exemptions  Important: ISPs and ICHs cannot be held responsible under State or Territory law or under common law or a rule of equity for carrying or hosting particular material on Internet if they were not aware of the nature of the content (Sch 5 cl 91 Broadcasting Services Act 1992 (Cth)). Broadcasting Services Act Broadcasting Services Act For example, if an ISP carries material which is defamatory or in contempt of court, but is not aware that the material is carried on its service, ISP cannot be sued or prosecuted for carrying this material.For example, if an ISP carries material which is defamatory or in contempt of court, but is not aware that the material is carried on its service, ISP cannot be sued or prosecuted for carrying this material. Intention of law: content providers or users liableIntention of law: content providers or users liable But, if ISP becomes aware of illegal or infringing material on its service and takes no action to have it removed within reasonable time, protections not apply.But, if ISP becomes aware of illegal or infringing material on its service and takes no action to have it removed within reasonable time, protections not apply.

Laws Content 22 Commonwealth Regulation  Broadcasting Services Amendment (Online Services) Act 1999 (Cth): 1 January 2000  bsasa1999n / bsasa1999n / bsasa1999n /  The Act inserted new Schedule 5 to Broadcasting Services Act 1992 (Cth) scaletext.law.gov.au/html/comact/8/4013/ top.htm scaletext.law.gov.au/html/comact/8/4013/ top.htm scaletext.law.gov.au/html/comact/8/4013/ top.htm  Schedule 5 established the ‘Online Content Co-Regulatory Scheme’ for regulation of prohibited content on the Internet

Laws Content 23 The Commonwealth Scheme (1)  Principle: what’s restricted offline should also be restricted online  Access to online content which is, or would be likely to be, Refused Classification (RC), orRefused Classification (RC), or Classified X or RClassified X or R  by the Office of Film and Literature Classification (OFLC) Board should be restricted in the same way as access to offline material

Laws Content 24 The Scheme (cont 2)  Act establishes co-regulatory scheme: Australian Communications & Media Authority (ACMA, former ABA) and Internet industry (IIA) share responsibility for regulating Internet content Scheme underpinned by industry-developed Codes of PracticeScheme underpinned by industry-developed Codes of Practice ACMA can supplement using reserve powersACMA can supplement using reserve powers  Activity by ACMA is complaints-driven: Sch 5 cl 2 Broadcasting Services Act 1992 Department of Communications, Information Technology and the Arts (DCITA) overview of scheme, insight into Commonwealth’s aims nt_co-reg_scheme_report_Sept_2005.rtfDepartment of Communications, Information Technology and the Arts (DCITA) overview of scheme, insight into Commonwealth’s aims nt_co-reg_scheme_report_Sept_2005.rtf nt_co-reg_scheme_report_Sept_2005.rtf nt_co-reg_scheme_report_Sept_2005.rtf

Laws Content 25 Sen. Alston The Government's Regulatory Framework for Internet Content (2000)  Looks at Government’s reasoning behind 1999 amendments ( ls/UNSWLJ/2000/#V6N1FORUM) ls/UNSWLJ/2000/#V6N1FORUMhttp:// ls/UNSWLJ/2000/#V6N1FORUM  some government aims (for example consistent laws among States, Territories and Commonwealth) yet to materialise

Laws Content Amendments  Required review of legislative provisions establishing online content scheme by 1 January 2003  September 2002 DCITA published Issues Paper ‘A review of the operation of Schedule 5 to the Broadcasting Services Act 1992’ nsultation_and_submissions/a_review_of_ schedule_5_to_the_broadcasting_services _submissions_closed nsultation_and_submissions/a_review_of_ schedule_5_to_the_broadcasting_services _submissions_closed nsultation_and_submissions/a_review_of_ schedule_5_to_the_broadcasting_services _submissions_closed

Laws Content 27 Submissions Mood of the Paper revealed support for stricter content regulationMood of the Paper revealed support for stricter content regulation One option considered by Minister: a central system to filter all local and overseas internet traffic through a "proxy" server.One option considered by Minister: a central system to filter all local and overseas internet traffic through a "proxy" server. But fears it would slow down overall InternetBut fears it would slow down overall Internet Favours approach to toughen regulations on internet service providers, already obliged to filter out offensive material.Favours approach to toughen regulations on internet service providers, already obliged to filter out offensive material. See also ‘Canberra clamp on net porn’ March Australian IT (Factiva)See also ‘Canberra clamp on net porn’ March Australian IT (Factiva)Factiva

Laws Content 28 Elements of the Commonwealth Scheme Main elements of the Scheme: Industry codes of practiceIndustry codes of practice ACMA-administered complaints systemACMA-administered complaints system Community educationCommunity education

Laws Content 29 3 Codes of Practice regulating ISPs & ICHs under Cth Scheme ISP Obligations in Relation to Internet Access GenerallyISP Obligations in Relation to Internet Access Generally ISP Obligations in Relation to Access to Content Hosted Outside AustraliaISP Obligations in Relation to Access to Content Hosted Outside Australia Internet Content Host Obligations in Relation to Hosting of Content Within AustraliaInternet Content Host Obligations in Relation to Hosting of Content Within Australia Codes drafted by Internet Industry Association (IIA) ( ) and registered by ABA, in response to requirement in Act this be done by 1 January 2000; failing this ABA would have imposed a standard on industry (Sch 5 cls 59 and 68 Broadcasting Services Act).

Laws Content 30 ACMA administered complaints system  Under Scheme, any Australian resident or company can complain to the ACMA about offensive online content  ACMA provides telephone hotline as well as online complaints form:  ACMA required to investigate all bona fide complaints, and decide whether material complained about falls into any prohibited category

Laws Content 31 Community Education  Responsibility of ACMA and community advisory body established by Fed Govt NetAlert (  Role: educate and inform public and industry about managing access to prohibited Internet content  Scheme does NOT apply to private or restricted distribution comms such as Intranets or (definition of ‘Internet content’ under Sch 5 cl 3 Broadcasting Services Act).  Does NOT apply to chatrooms or live audio or video streaming  Does apply to material contained in newsgroups (page 18 Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill htm) htm htm

Laws Content 32 Prohibited Content  Site hosted in Australia or overseas? (Sch 5 cl 10 Broadcasting Services Act). Hosted in Australia: ‘prohibited content’ is Internet content Refused Classification (RC) or classified X by OFLCHosted in Australia: ‘prohibited content’ is Internet content Refused Classification (RC) or classified X by OFLC  also Internet content rated R, where not subject to ‘Restricted Access System’ Hosted overseas: ‘prohibited content’ only that which would be Refused classification (RC) or classified X by OFLCHosted overseas: ‘prohibited content’ only that which would be Refused classification (RC) or classified X by OFLC  ‘Potential prohibited content’ is Internet content not classified by OFLC, but likely to be prohibited content if it were (Sch 5 cl 11 Broadcasting Services Act).

Laws Content 33 Restricted Access System  RAS is system for preventing access by children to R-rated content (Sch 5 cl 4 BSA)  Minimum requirements for RAS's are in ABA's Restricted Access Systems Declaration /archive/1999/130nr99.shtml /archive/1999/130nr99.shtml /archive/1999/130nr99.shtml  To qualify as a ‘Restricted Access System’, the system must perform three functions: RegistrationRegistration Qualification/ValidationQualification/Validation AccessAccess

Laws Content 34 Registration  The system must receive applications for registration in hard copy or electronically  To be registered, potential subscriber must supply her/his name,supply her/his name, declare s/he is 18 years of age or olderdeclare s/he is 18 years of age or older provide credit card details or other evidence of ageprovide credit card details or other evidence of age

Laws Content 35 Qualification/Validation  The system must verify the potential subscriber’s age  Upon verification, issue a personal identification number (PIN) or password to applicant  on condition the security information is not revealed to anyone else

Laws Content 36 Access  The system must require the applicant to input a valid password or PIN  before granting access to content which is, or would be likely to be, classified R.

Laws Content 37 ACMA Complaints Scheme (1)  Any person who is an Australian resident or an Australian company can make a complaint to the ACMA about objectionable material on the Internet orobjectionable material on the Internet or about a contravention of the Codes by an ICH (Sch 5 cls 22 – 25 BSA).about a contravention of the Codes by an ICH (Sch 5 cls 22 – 25 BSA).  The complaint must be made either in writing to the ACMA, or  via the online complaints form

Laws Content 38 Complaints Scheme (cont 2)  Upon receiving a complaint, ACMA must investigate it unless the ACMA views the complaint as frivolous, misguided or designed to undermine the scheme (Sch 5 cl 26 BSA).  ACMA must take action where it is satisfied that the content complained of is prohibited content or potential prohibited content.  Action taken by the ACMA will depend on whether content complained of is hosted in Australia or overseas.  ACMA is required to inform all complainants of the outcome of their complaint (Sch 5 cl 26(3) BSA).

Laws Content 39 ACMA action where material is hosted in Australia  If prohibited content hosted in Australia and classified RC, X or R (where no RAS in place): ACMA must issue a final take-down notice directing ICH to cease hosting relevant content by 6.00 pm next business day.  Where potential prohibited content has not been classified, but ACMA is satisfied it would be substantially likely to be classified RC, X or R (where no RAS in place): ACMA must refer it to OFLC for classification.  An interim take-down notice must also be issued where material is likely to be classified RC or X.  Notice directs recipient to cease hosting content until ACMA has notified of classification of content determined by OFLC. Requires that content be taken down no later than 6.00pm following business day (Sch 5 cl 30 BSA).

Laws Content 40 ACMA action where material is hosted in Australia (2)  ACMA must give ICH written notice of OFLC’s decision.  If OFLC classifies content RC, X or R (where no RAS in place: content is prohibited content and must be dealt with accordingly by ACMA (see above).  This means that hosting R rated content hosted in Australia will be banned, unless there is an RAS in place.

Laws Content 41 ACMA action where material is hosted outside Australia  If ICH is not in Australia, ACMA only takes action if (potential) prohibited content is RC or X category.  If ACMA forms view that content complained of is or would be classified RC or X: ACMA must notify suppliers of Scheduled Filters and ISPs of location of content (Sch 5 cl 40 BSA). Notification is usually by .Notification is usually by . notification happens pursuant to Designated Notification Scheme set out in the IIA Codes.notification happens pursuant to Designated Notification Scheme set out in the IIA Codes.  ACMA may notify content to an Australian police force, if it thinks such action is warranted. For example, such material might be that which contravenes a State Crimes Act such as child pornography, or matter instructive in the commission of a crime.For example, such material might be that which contravenes a State Crimes Act such as child pornography, or matter instructive in the commission of a crime.

Laws Content 42 Enforcement  Failure to comply with ACMA take-down notice or direction to comply with Code is an offence Maximum penalty of $5,500 for individuals or $27,500 for corporations (Sch 5 Part 6 BSA).Maximum penalty of $5,500 for individuals or $27,500 for corporations (Sch 5 Part 6 BSA).  A contravention of an ACMA direction or notice is considered to be a continuing offence Each day during which the contravention continues and can attract up to 10% of the above penalties per day (s 213 BSA ).Each day during which the contravention continues and can attract up to 10% of the above penalties per day (s 213 BSA ).

Laws Content 43 Criticisms of the Commonwealth Scheme  2003 Australia Institute study revealed current scheme is a “manifest failure”. Youth and Pornography in Australia: Evidence on the extent of exposure and likely effects revealed 84% of teenage boys and 60% of girls accidentally came across Internet sex sites and 38% of boys and 2% of girls deliberately visited such sites.Youth and Pornography in Australia: Evidence on the extent of exposure and likely effects revealed 84% of teenage boys and 60% of girls accidentally came across Internet sex sites and 38% of boys and 2% of girls deliberately visited such sites. drastic recommendation: all ISPs filter all net content recommendation: all ISPs filter all net content view close to Federal Govt position, announced look at reducing access to hardcore pornography from PCsview close to Federal Govt position, announced look at reducing access to hardcore pornography from PCs ‘Net porn controls useless: study’ March 4, 2003 cnn.com australia.netporn/index.html‘Net porn controls useless: study’ March 4, 2003 cnn.com australia.netporn/index.html australia.netporn/index.html australia.netporn/index.html

Laws Content 44 EFA criticised ineffectiveness of online regulation scheme  “failed dismally insofar as its alleged objective of making the Internet safer for children is concerned” (  Unlike AI, EFA condemns current regime as infringement on adult free speech both generally, and in light of offshore publications not receiving same level of censorship.  Urges those who value freedom of speech to lobby Parliament repeal 1999 amdts to Broadcasting Services Act.  2002 EFA response to DCITA’s Review of Operation of Schedule 5 to Broadcasting Services Act 1992 noted failings of regulatory scheme and review paper itself: Alston stmt trumpeting success of scheme were by own admission based on erroneous statistics.  “ABA's refusal to provide URLs of taken-down Australian hosted web pages, on ground that such information would enable a person to access prohibited content, indicates the ACMA believes such content has not been taken down from the Internet”. (

Laws Content 45 Codes of Conduct  Internet Industry Association (IIA) Internet Industry Codes of Practice (version 7.2)  Operates as part of a co-regulation scheme:  While voluntary, Broadcasting Services Act provides that if ACMA directs an ISP or ICH to comply with this code, they are required to do so

Laws Content 46 ISPs and ICHs responsibilities (2)  Take reasonable steps to make sure that children do not become Internet subscribers without the consent of an adult;  Encourage subscribers who are commercial content providers to label content that might be unsuitable for children;  Advise subscribers who are commercial content providers about their legal responsibilities in relation to content;  Inform users about ways they can supervise and control their children’s access to Internet content;  Help subscribers block unwanted and undesirable ;  On becoming aware that an ICH is hosting Prohibited Content advise them about the Prohibited Content;

Laws Content 47 Codes (cont 3)  Provide Scheduled Filters for subscribers in Australia at charge determined by ISP (although in case of individual subscribers this charge cannot exceed cost to the ISP of providing filter).  Obligation on ISPs to provide approved filters not apply where already an effective mechanism in place to filter content ( ‘designated alternative access prevention arrangement’);  Take reasonable steps to inform subscribers about their right to, and procedures for, making complaints to the ACMA about online content.

Laws Content 48 Codes (cont 4)  Codes also recognise limitations of present filtering technologies and impracticality of filtering all Internet content  Nevertheless, Codes endorse end user empowerment including education, provision of information, and filtering methods as most practical means by which responsible adults can facilitate appropriate controls, particularly children  To encourage adoption of best practice standards IIA launched Family Friendly ISP Seal scheme. ISPs compliant with IIA codes to display a special seal known as ‘Ladybird Logo’.

Laws Content 49 IIA Codes of Practices  IIA Content Regulation Code of Practice Webpage  Guide for ISPs: Information About Online Content  Guide for Internet Users: Information About Online Content

Laws Content50 INTERACTIVE GAMBLING

Laws Content 51 KEY ISSUES  Policy: What was the Government trying to achieve?  Law: How is it trying to achieve it?  Technology: Interaction with policy and law.

Laws Content 52 POLICY OBJECTIVES  Address a potential area of problem gambling before it starts by curtailing opportunities for it to grow.  Moratorium on new Australian services from May 2000 to May 2001  NOIE report: feasibility & consequences of a ban on interactive gambling.

Laws Content 53 INTERNET GAMBLING  1,400 sites (100% increase in 12 months to 2001)  Revenue estimates: 2001$US2.5 b 2002$US3.5 b 2003$US5.0 b

Laws Content 54

Laws Content 55 STATE OF PLAY  Moratorium expired 18 May 2001  Interactive Gambling Act Senate Committee reported 23 May  Offline gambling issues being separately addressed by Commonwealth/ States.

Laws Content 56 INTERACTIVE GAMBLING ACT 2001  Prohibits Australian-based ‘interactive gambling services’ from being provided to customers in Australia.  Established complaints regime for Internet gambling services focus is services hosted outside Australiafocus is services hosted outside Australia  sol_act/iga / sol_act/iga / sol_act/iga /

Laws Content 57 MAIN OFFENCE CREATED Section 15 Section 15 A person is guilty of an offence if: Section 15 (a) the person intentionally provides an Australian-based interactive gambling service; and (b) the service has an Australian customer link.

Laws Content 58 WHAT SORT OF ‘GAMBLING SERVICES’? GAMBLING SERVICESGAMBLING SERVICES  Placing, making, receiving or accepting bets  Introducing gamblers to providers  Lotteries & lottery tickets  A game of chance, or of mixed chance and skill, played for something of value and for consideration

Laws Content 59 NOT AFFECTED  Contracts that, under Corporations Law, are exempt from a law relating to gaming or wagering -options and futures contracts -online share trading  “Linked jackpot” gaming machines.  TV game shows!

Laws Content 60 AUSTRALIAN-BASED Interactive Gambling Services  Provided in the course of carrying on a business; and  Provided to customers using: Internet or other listed carriage serviceInternet or other listed carriage service broadcasting or datacasting servicebroadcasting or datacasting service any other content service; andany other content service; and  Has an Australian-provider link.

Laws Content 61 AUSTRALIAN-PROVIDER LINK  Carrying on a business in Australia; or  Central management & control is in Australia; or  Provided through an agent in Australia; or  Relevant Internet content is hosted in Australia.

Laws Content 62 AUSTRALIAN CUSTOMER LINK  If, and only if, any or all of the customers of the service are physically present in Australia

Laws Content 63 OTHER LEGAL ISSUES  Constitutional heads of power  Claims for compensation  Constitutional issues: is any property being “acquired”?is any property being “acquired”? broader dimension: a “moral claim”?broader dimension: a “moral claim”?

Laws Content 64 Technology Issues

Laws Content 65 TECHNOLOGY ASPECTS  Blocking / filtering technologies none 100% effectivenone 100% effective all affect Internet performanceall affect Internet performance mandatory vs voluntarymandatory vs voluntary  Overseas sites the online content regime as a modelthe online content regime as a model

Laws Content 66 Tasmanian breakthrough?  BetFair agreement with Tasmanian government January 2006  “Briefings by Betfair Australia - a joint venture Betfair UK and Kerry Packer's Publishing & Broadcasting Ltd - convinced MLCs of integrity of betting exchange”  allegations of ‘free’ hospitality  “After months of controversy filled with questions and doubt from members of Tasmanian government and Australian racing industry, British betting exchange Betfair was finally granted a license to operate in Tasmania”  Gaming Control Amendment (Betting Exchanges) Act 2005 (Tas) URL TasURLTasURL Can bet on losers - an exchangeCan bet on losers - an exchange

Laws Content 67

Laws Content 68 SPAM, SPAM, SPAM

Laws Content69 Spam laws in Australia and surveillance Do Spam laws stop Spam, or invite routine surveillance at work?

Laws Content 70 Promise more than deliver?  Internet: strange beast to regulate ‘Cyberspace’ out there‘Cyberspace’ out there Jurisdiction: none or too much?Jurisdiction: none or too much?  Brave attempts to legislate Good intentions and ingenuityGood intentions and ingenuity  But often undermined by a flaw Fails to deliver on promiseFails to deliver on promise Side effects can swamp intended effectsSide effects can swamp intended effects

Laws Content 71 surveillance and Spam  Spam threatens viability of system  Legislation in 2003, each flawed  IT security seen as ultimate Spam solution  Workplace surveillance as the answer?  Threat to privacy of  Misses the target Won’t workWon’t work Erosion of trust, collateral damageErosion of trust, collateral damage Undermine training, organisation intelligenceUndermine training, organisation intelligence

Laws Content 72 Spam threatens ’s viability  Spam is 2/3 of all (Messagecare)  Technical load on infrastructure  Threat to trust, Internet social bonds People begin to abandon People begin to abandon Network effect declinesNetwork effect declines  ‘Tragedy of the Commons’ (Catlett)  Market and technical failure

Laws Content 73 Some problems with real Spam  ‘Epidemic’ of asymmetric attacks  Sender is hidden  Sender is out of jurisdiction  Spam bots Address harvestingAddress harvesting Hybrid worms with built-in mail servers!Hybrid worms with built-in mail servers!  Arms race, cheap technical advances Eg, Anti-filtering contentEg, Anti-filtering content

Laws Content 74 A tale of 2003 Spam laws  Reaction to threat to system  California’s Spam law  US Federal ‘CAN-SPAM’ Act  Australian Spam Act  EU Directive (not covered)  Spot the crippling flaws…

Laws Content 75 Californian Spam laws of 2003  Stricter legislation than Australia  Requires prior consent (‘Opt in’) Can’t rely on ‘Unsubscribe’Can’t rely on ‘Unsubscribe’ Unsubscribe is too lateUnsubscribe is too late  ‘Private right of action’ Anyone could have sued; but …Anyone could have sued; but …  Overridden by CAN SPAM (federal)

Laws Content 76 US CAN-SPAM Act 2003  ‘Opt out’, not ‘opt in’  Requires only: Good return addressGood return address Honour opt out requestHonour opt out request  Over-rides Californian law  Weakens protection drastically  Triumph of Direct Marketing Assn

Laws Content 77 Australia’s Spam Act 2003  A different political balance  ADMA accepted ‘Opt-in’ (unlike US DMA)  Loopholes to drive a truck through? Exempt bodies, Purely factual messages…Exempt bodies, Purely factual messages…  Dragnet to catch slippery spammers Single message can be Spam!Single message can be Spam!  Harsh ‘search and seizure’ powers  sol_act/sa200366/ sol_act/sa200366/ sol_act/sa200366/

Laws Content 78 Concepts in Spam Act 2003 (Cth)  ‘Commercial electronic messages’  Banned if ‘unsolicited’  Prior consent required:  Explicit or implicit?  Covers individual s  Drastic fines for repeat offenders  Complex exemptions  Relationships relevant to the test

Laws Content 79 Enforcement of Spam Act  ACMA under-resourced?  ‘Softly, softly’ policy?  Target the extreme abusers  Liability net is wide and complex  Many offences not prosecuted  Wide discretion, uncertainty?

Laws Content 80 Risk of Spam Act prosecution  Liability v. risk of prosecution?  Serious Offences  Huge Penalties  But ACA policy, resources  Intention needed for offence?  Practical risk of single message Spam  Difficult to frame legal advice

Laws Content 81 Problems of at work  Complex Spam liability rules  Other legal issues  Viruses and security  Pornography etc.  Temptation to track everything?

Laws Content 82 NSW workplace surveillance law  Announced 30 March 2004  Workplace surveillance already regulated ‘Strict laws & protocols to restrict employer snooping on workers phone’‘Strict laws & protocols to restrict employer snooping on workers phone’  Workplace Video Surveillance Act  To be amended to cover , other tech.  Prohibits surveillance Without court order or consentWithout court order or consent  Challenges IT control, Spam monitoring

Laws Content 83 Issues  Industrial opposition to monitoring  Balance of interests  ‘Mutually respectable workplace’  Privacy rights protected in a new sphere  See Privacy Acts Federal and State  Focus on consent

Laws Content 84 Bark worse than bite?  Reduce secret surveillance  May just result in forced consent  Potential to be stricter - details!  Any practical effect?  Precedent for other safeguards?

Laws Content 85 Surveillance stops Spam?  Divergence of views  IT solution v people solution  What is the problem?  After the fact – too late  Not reveal the basis of exemptions  Inadvertent breaches of the Act

Laws Content 86 A better solution?  Trust and respect  Training and peer support  Sensible policies & goodwill  Cooperation with ACMA, ACCC, TIO  Complaint-based approach  Review marketing and PR  Seeking consent is good business

Laws Content 87 Spam - Conclusion  Spam law unintended consequences  Surveillance culture  New awareness of privacy  NSW anti- surveillance law  Effective risk management  Low risk of prosecution  Better solution

Laws Content 88