Yesterday, Australian IT ran a story suggesting that Senator Stephen Conroy is backing away from the ‘mandatory’ in his mandatory Internet filtering plan. The story refers to statements that Senator Conroy made in a Senates Estimates hearing suggesting that filtering could be implemented with a voluntary industry code.
To explain what he (probably) meant, I have set out how filtering is governed by a voluntary industry code today, how this can be changed to make filtering mandatory, and what exactly is ‘voluntary’ about this industry code.
Status Quo
The Broadcasting Services Act 1992 (Cth) sch 5, which is presently in force and has been for years, already provides that ISPs must filter ‘prohibited content’ and ‘potential prohibited content’ hosted overseas notified to them by ACMA.
However, that filtering is subject to any industry code (a code made by a body or association that represents ISPs) that sets out a notification scheme for such content and procedures that ISPs will follow when notified of such content.
In other words, the Act provides that ACMA can direct ISPs to filter out ‘prohibited content’ and ‘potential prohibited content’ hosted overseas unless ISPs have made a code that says that they will deal with the content in some other way.
The Internet Industry Association (IIA) has made such a code. The most recent version is the Internet Industry Codes of Practice 2005, and it’s registered by ACMA here. The Code provides that ACMA will notify the content to makers of IIA Family Friendly Filters, and that ISPs will distribute those filters to customers who want them at no more than cost. Effectively, this creates an opt-in filtering system.
What Senator Conroy was saying was that there are two ways to introduce mandatory Internet filtering: change the legislation so that ISPs have to filter despite any code or change the code to require mandatory filtering.
Voluntary Codes are Mandatory
But if the industry code is voluntary, how can it provide for mandatory filtering? The answer is that compliance with a registered industry code is not really voluntary.
The code is voluntary in that the IIA (or some other body or association that represents ISPs) would have to voluntarily make it (as opposed to legislation which is simply imposed by Parliament). However, once it’s made and registered by ACMA, ACMA can direct an ISP to comply with it.
While failure to comply with the code is not itself an offence, failure to comply with a direction to comply with the code is. The penalty is $5,500 for each day of contravention for an individual and $27,500 for each day of contravention for a body corporate.
Effectively, compliance with the code is mandatory.
Conclusion
In this way, even though the code would be voluntarily made, ISPs could be required to comply with it, making filtering effectively mandatory. And even if compliance with the code were truly voluntary, filtering could still be mandatory from the perspective of the end user if enough ISPs chose to comply with it.
None of this is to suggest that the IIA is likely to change the code to mandate filtering. Indeed, given the opposition to filtering, it’s unlikely that ISPs would volunteer to implement filtering on a mandatory basis (especially with the overbroad definition of ‘prohibited content’ in the current Act).
Unfortunately, though, it’s a little too early to celebrate victory over mandatory filtering.
This post is not intended as legal advice. I make no representations whatsoever as to its quality, and will not be liable for any loss, injury, or damage howsoever resulting from it. Seek independent legal advice.
While I have attempted to write this post without bias, I am opposed to any plan for mandatory filtering of online content.
{ 4 comments… read them below or add one }
Another aspect of this that’s worth mentioning is that the Act doesn’t convey to the Minister or ACMA any authority to revoke an Industry Code once it has been registered.
So regardless of how angry the Minister gets, the IIA is entirely within their rights to wipe his spittle off their faces afterwards and say, “Screw you.”
ACMA (not the Minister) can determine that an Industry Code is deficient and require the industry to modify it, but having approved of PC censorware for a decade they’re hardly likely to come out and say, “Actually, we’ve been completely incompetent for ten years by saying that’s ok. It isn’t ok anymore, you need to filter ur internetz.”
And even if they did, the Codes are disallowable instruments, which means either house of Parliament can vote them down within 14 sitting days of the Minister tabling them.
I think the Coalition did a fascinating job of tying the hands of the Communications Minister in this space. There really isn’t a lot he can do to force an outcome here, other than pass new legislation.
Under cls 70 and 71, ACMA has a fairly broad power to replace a registered industry code with its own industry standard (industry standard being the term for, essentially, an industry code made by ACMA).
These clauses respectively relate to situations where the registered industry code is deficient in relation to all of the matters that it deals with or in relation to only some of the matters that it deals with.
Deficiency is defined broadly: if ‘the code is not operating to provide appropriate community safeguards’ or ‘the code is not otherwise operating to regulate adequately [ISPs]’ it is deficient.
If there is a deficiency that isn’t remedied after ACMA gives notice, ACMA can make an industry standard that remedies the deficiency. The industry standard that ACMA makes is a disallowable instrument (industry codes are not disallowable instruments).
One can certainly see how ACMA could make an argument that opt-in filtering for certain classes of material does not ‘provide appropriate community safeguards’, especially if the Minister set policy to the effect that mandatory filtering of that material was necessary to provide such safeguards.
In fact, the Minister’s influence is even greater. Under both cl 70 and cl 71, the Minister may give ACMA a written direction as to the exercise of its power to replace the industry code with its own industry standard.
(I’ve never heard anyone suggest using this method to implement mandatory filtering, though.)
The problem ACMA will have in that situation is that it’s difficult for them to make an argument that says opt-in censorware doesn’t “provide appropriate community safeguards” when they’ve spent the last decade saying it does, and nothing tangible has changed to alter the landscape.
The Minister’s influence under 70 and 71 is quite limited. He can give ACMA a written direction to exercise its powers under those clauses, but (a) ACMA is an independent statutory body, and he has no control over HOW they exercise their powers; and (b) all their powers under those clauses use terms like “if” and “may”, meaning that ACMA’s first step in “exercising their powers” is always to decide whether or not they’re going to do anything (i.e., they could satisfy the Minister’s written direction by saying, for example, “We exercised our powers under clause 70 by determining that the registered industry code is not deficient.”
You’ll also note that their power in relation to industry standards requires extensive consultation with the industry segment under regulation, which has plenty of chances to rectify a “partially deficient” situation by amending their code. One would expect minimalist implementations of Govt policy to result from that process, rather than the wide, sweeping vistas of content control that the Government has been advocating.
… and even then, the result is a disallowable instrument which the Parliament can disqualify. Hardly likely to deliver “Labor’s Plan for Cyber Safety.”
So there are enough question marks over the development of standards and codes that it’s very unlikely that Conroy will get what he wants if he tries to force the process. If he learns to “Play Nicely With Others” he might have a chance of getting something cooperative and voluntary in place. But if he carries on as if he’s actually in charge of anything here, he won’t find much in the way of satisfaction any time before the next election.
– mark
You’re right that it would be inconsistent for ACMA to suddenly require mandatory filtering, and I wouldn’t expect them to do so. (The arguments for mandatory filtering are untenable irrespective of any inconsistency with ACMA’s current position.)
I’m merely submitting that ACMA has the power to do so, if it wanted to exercise it. ACMA can act under these clauses so long as it’s satisfied that the code is deficient. It doesn’t have to convince anyone else of that deficiency (you cannot appeal the decision on its merits).
Of course, ACMA would still have to consult with the industry and give them a chance to fix the code. And any standard that it did set would be a disallowable instrument, which I would hope would be promptly disallowed.
And it is important, as you say, that the power is that of ACMA, and not of the Minister. Senator Conroy wouldn’t be able to force ACMA’s hand under the current legislation to require mandatory filtering. (Courts disagree to an extent on the effect of legislation that provides for ministerial directions, but any direction in this case would be non-binding, I would think.)