Comments on: Why ACMA Probably Won’t Fine You $11,000 a Day http://www.orzeszek.org/blog/2009/04/20/why-acma-probably-won%e2%80%99t-fine-you-11000-a-day/ An inchoate upside-down perspective Tue, 07 Feb 2012 18:26:06 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Chris http://www.orzeszek.org/blog/2009/04/20/why-acma-probably-won%e2%80%99t-fine-you-11000-a-day/comment-page-1/#comment-6665 Chris Tue, 29 Dec 2009 01:01:11 +0000 http://www.orzeszek.org/blog/?p=423#comment-6665 @Tim: The Act provides that ACMA can issue take-down notices in relation to hosting services that have an ‘Australian connection’. A hosting service has an ‘Australian connection’ if <em>any</em> of the content that it provides is hosted in Australia (that is, if <em>any</em> of the content that it provides is stored on a box in Australia). So, in scenarios 1 and 3, the hosting service would have an Australian connection (because content is stored on a box in Australia). In scenarios 2 and 4, the hosting service would not have an Australian connection (because content is not stored on a box in Australia, and the residency of any involved party is not relevant). In scenario 5, the hosting service would also have an Australian connection (because some of the content is stored on a box in Australia and it is enough if <em>any</em> of the content is stored on a box in Australia). It’s also important in all of this that the take-down notices are issued to the hosting service provider, and not to the person who, in an ordinary sense, is responsible for the content. It is the hosting provider that has an obligation to take down the content, and it is the hosting provider who risks the possibility of fines for non-compliance. So, if you as an individual (irrespective of your residency) host a blog on BigPond (in Australia) and post prohibited content, ACMA can issue BigPond a take-down notice and BigPond must comply with that notice. You do not have any obligations under the Act yourself (though your contract with the hosting provider may specify certain obligations). @Tim: The Act provides that ACMA can issue take-down notices in relation to hosting services that have an ‘Australian connection’. A hosting service has an ‘Australian connection’ if any of the content that it provides is hosted in Australia (that is, if any of the content that it provides is stored on a box in Australia).

So, in scenarios 1 and 3, the hosting service would have an Australian connection (because content is stored on a box in Australia). In scenarios 2 and 4, the hosting service would not have an Australian connection (because content is not stored on a box in Australia, and the residency of any involved party is not relevant). In scenario 5, the hosting service would also have an Australian connection (because some of the content is stored on a box in Australia and it is enough if any of the content is stored on a box in Australia).

It’s also important in all of this that the take-down notices are issued to the hosting service provider, and not to the person who, in an ordinary sense, is responsible for the content. It is the hosting provider that has an obligation to take down the content, and it is the hosting provider who risks the possibility of fines for non-compliance.

So, if you as an individual (irrespective of your residency) host a blog on BigPond (in Australia) and post prohibited content, ACMA can issue BigPond a take-down notice and BigPond must comply with that notice. You do not have any obligations under the Act yourself (though your contract with the hosting provider may specify certain obligations).

]]> By: tim http://www.orzeszek.org/blog/2009/04/20/why-acma-probably-won%e2%80%99t-fine-you-11000-a-day/comment-page-1/#comment-6664 tim Mon, 28 Dec 2009 23:42:25 +0000 http://www.orzeszek.org/blog/?p=423#comment-6664 which of these are defined as hosting in australia? 1) australian company or person - using a australian hosting service hosting on a box physically residing in australia. 2) australian company or person - using a australian hosting service hosting on a box physically residing outside of australia. 3) non resident in australian company or person - using a australian hosting service hosting on a box physically residing in australia. 4) non resident in australian company or person - using a australian hosting service hosting on a box physically residing outside of australia. 5) using a hosting mirror site that is primarily overseas but has a mirror for local users etc which of these are defined as hosting in australia?
1) australian company or person – using a australian hosting service hosting on a box physically residing in australia.
2) australian company or person – using a australian hosting service hosting on a box physically residing outside of australia.
3) non resident in australian company or person – using a australian hosting service hosting on a box physically residing in australia.
4) non resident in australian company or person – using a australian hosting service hosting on a box physically residing outside of australia.
5) using a hosting mirror site that is primarily overseas but has a mirror for local users
etc

]]> By: ACMA Blacklists Iran Protest Video & Boing Boing http://www.orzeszek.org/blog/2009/04/20/why-acma-probably-won%e2%80%99t-fine-you-11000-a-day/comment-page-1/#comment-2035 ACMA Blacklists Iran Protest Video & Boing Boing Fri, 28 Aug 2009 03:43:18 +0000 http://www.orzeszek.org/blog/?p=423#comment-2035 [...] However, under both the current and the proposed systems of Internet censorship in Australia, the Classification Board’s decision is binding, to varying degrees, on individuals. For instance, now, Australian-hosted sites cannot link to these videos. [...] [...] However, under both the current and the proposed systems of Internet censorship in Australia, the Classification Board’s decision is binding, to varying degrees, on individuals. For instance, now, Australian-hosted sites cannot link to these videos. [...]

]]> By: Googling Sex in Two Countries http://www.orzeszek.org/blog/2009/04/20/why-acma-probably-won%e2%80%99t-fine-you-11000-a-day/comment-page-1/#comment-1887 Googling Sex in Two Countries Mon, 24 Aug 2009 11:09:45 +0000 http://www.orzeszek.org/blog/?p=423#comment-1887 [...] I had forgotten (somehow) that hosting pornography in Australia is at least impractical, as ACMA can issue a take-down notice that requires the host to remove such content by 6:00 pm the next business day or face $11,000 [...] [...] I had forgotten (somehow) that hosting pornography in Australia is at least impractical, as ACMA can issue a take-down notice that requires the host to remove such content by 6:00 pm the next business day or face $11,000 [...]

]]> By: Classification Board Classifies AbortionTV R 18+ http://www.orzeszek.org/blog/2009/04/20/why-acma-probably-won%e2%80%99t-fine-you-11000-a-day/comment-page-1/#comment-37 Classification Board Classifies AbortionTV R 18+ Tue, 05 May 2009 09:56:54 +0000 http://www.orzeszek.org/blog/?p=423#comment-37 [...] Electronic Frontiers Australia (EFA) announced that its host had received a final link-deletion notice from ACMA directing them to remove a link to a page on the AbortionTV website that EFA included in [...] [...] Electronic Frontiers Australia (EFA) announced that its host had received a final link-deletion notice from ACMA directing them to remove a link to a page on the AbortionTV website that EFA included in [...]

]]> By: Why It’s Legal to View Prohibited Content http://www.orzeszek.org/blog/2009/04/20/why-acma-probably-won%e2%80%99t-fine-you-11000-a-day/comment-page-1/#comment-19 Why It’s Legal to View Prohibited Content Wed, 22 Apr 2009 12:49:44 +0000 http://www.orzeszek.org/blog/?p=423#comment-19 [...] When ACMA finds prohibited content hosted overseas, it adds it to its blacklist. (The procedure dealing with Australian hosted content is different, and I don’t propose to deal with it in this post. I deal with it here.) [...] [...] When ACMA finds prohibited content hosted overseas, it adds it to its blacklist. (The procedure dealing with Australian hosted content is different, and I don’t propose to deal with it in this post. I deal with it here.) [...]

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