Tuesday, March 02, 2021

Online Safety meets Classification

The Federal Government has introduced a new Online Safety Bill, that is evoking memories of Stpehen Conroy's ill-fated attempts at introducing a mandatory internet filter. While some might see the Bill as milder because it only introduces a take-down regime rather than a mandatory filter, that is false comfort because it extends far beyond the intent of Labor's scheme. 

First some history. As Minister Senator Conroy was only proposing an internet filter on content that could not be distributed in any other form in Australia. Material that is rated RC (Refused Classification) by the Classification Board is this material. Conroy did not intend that it extended to anything other than that. He was not attempting to impose a higher standard for online content than for other content.

However, the National Classification Code has a very clear gap between what they describe as RC and what they describe as X 18+. There was a particular deficiency in relation to computer games where the guidelines did not include an X 18+ category. The consequence was that an internet filter would capture a much greater range of content than the ALP policy proposed.

The ALP referred the matter to the Australian Law Reform Commission and the report was tabled in 2012. In a section of the report headed 'The need for fundamental reform' the ALRC observed:

2.69 The ALRC considers the major principles that have informed media classification in Australia—such as balancing the rights of adults to make informed media choices with the protection of children—to continue to be relevant. However, the framework that underpins these principles is in need of reform. 
2.70 In the context of media convergence, there is a need to develop a framework that focuses upon media content rather than delivery platforms, and which can be adaptive to innovations in media platforms, services and content. Failure to do so is likely to disadvantage Australian digital content industries in a highly competitive global media environment. 
2.71 The current classification framework is highly fragmented, with different guidelines and regulatory arrangements for different media platforms, and unclear lines of administrative responsibility. The relationship between the Commonwealth, states and territories in particular requires significant reorganisation, and there is a case for a new Act governing all media content classification, as well as revised regulatory arrangements. 
2.72 The costs and regulatory burden of the current classification framework align poorly to community standards and expectations. There is too much top-down regulation of some media content and platforms, while regulatory requirements are unclear in relation to other media. 

The ALRC identified the classification gap above, and recommended that the classification scheme have a clearly defined category of Prohibited Content. It also proposed a fundamental reform of classification procedures. 

Unfortunately, at that time the Classification Act was legislation administered by the Attorney-General. The AG's office in response to the ALRC report prepared a proposal for the States and Territories to adopt the title of Prohibited for RC without making any of the other changes. It took some work to explain the AGs that this was not the intent of the ALRC report.

However,  the Classification Act is now included in the administered legislation of the Department of Infrastructure, Transport, Regional Development and Communications. That means the same Minister introducing the Online Safety Bill is the Minister who could and should be acting on the ALRC recommendations.

So that is the first issue with the Bill. The second, and just as troublesome, is that the Bill also proposes that all X18 + and R18 + material should be subject to take down notices unless they are subject to a restricted access system. Horrifyingly, restricted access systems are defined under s108 of the Bill, where we learn that the e-Safety Commissioner can 'declare that a specified access-control system is a restricted access system in relation to material for the purposes of this Act.' 

Similarly the Bill is extremely vague in terms of exactly what is or isn't covered because in relation to all kinds of content it adds that where the content has not been classified it is subject to restriction if it would 'be likely that the Classification Board' would give it the classification. Effectively this empowers the e-Safety Commissioner to become a secondary Classification Board.

The Government needs to rethink this legislation. This is more restrictive than anything the ALP contemplated and goes well beyond what ordinary citizens expect. 

The idea of have restricted access systems for content is also not objectionable, but it needs to be implemented in such a way that any user can access the content through their arrangements with their service provider. If I want to see an R 18+ film I just have to demonstrate to the theatre owner that I am over 18, I don't need to buy a ticket to the cinema and then separately demonstrate to the content maker that I am over 18.

Of course, ideally, global comms Ministers could have got together with the Internet Community and added a classification field to the DNS. That would have then logically created the ability for clear access controlo to websites based on the category of their content (and to be clear, even with user generated content on sites like Facebook, Twitter and YouTube, ultimately the content on any domain is controlled by the owner of the domain). 

It is inexcusable that after nearly eight years in Government, the best that the LNP can come up with is an approach that ignores the recommendations of the ALRC and is potentially more restrictive than anything that Stephen Conrioy's giant internet filter was going to cover.

Life is what happens while you are busy making other plans JWL

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