Greenleaf, Graham --- "Cyberspace censorshop threatens privacy" [1995] PrivLawPRpr 95; (1995) 2(8) Privacy Law & Policy Reporter 148

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Cyberspace censorship threatens privacy

Graham Greenleaf

The Internet finally 'arrived' as a new medium of publication in 1995, and the censors are in hot pursuit. Three states have introduced Bills to censor material on the Internet, and it is understood that they all intend to have legislation operative by 1 January 1996 - the WA Censorship Bill 1995, the NT Classification of Publications and Films Amendment Bill 1995, and the Victorian Classification (Publications, Films and Computer Games) (Enforcement) Bill 1995. The NT Bill is said to be based on a draft of the WA Bill, but only the WA and Victorian Bills are discussed here. The WA Bill is based to a substantial extent on the Commonwealth Department of Communications and the Arts (DoCA) 'Consultation Paper on the regulation of online information services' (July 1995), but the Victorian Bill is not.

Faced with a proliferation of inconsistent state and territory laws which will cause great difficulties for anyone publishing on the Internet, the Standing Committee of Attorneys-General (SCAG) has agreed in principle that the NSW Office of Parliamentary Counsel will prepare a draft Bill suitable for a national scheme, based on the consultation paper.

The Bills raise numerous issues, but this column will focus on the impact of the legislation on 'private' communications through e-mail, and other privacy implications, as well as sketching the overall approach of the Bills.

The scope of the Bills

The DoCA consultation paper said that one of the objectives of a regulatory regime should be 'protecting freedom of expression, especially with regard to private communications between adults'. One question about both the DoCA recommended offences and this legislation is the extent to which it may catch what we would otherwise regard as 'private' or person-to-person communications, as distinct from the various forms of 'publishing' (books and periodicals, films and computer games) that are the usual focus of censorship laws.

The WA Bill includes offences involving the use of a 'computer service' relating to both 'objectionable material' (cl 102) and 'restricted material' (cl 103). 'Computer service' is defined broadly to mean 'a service provided by or through the facilities of a computer communications system' (cl 100), which means it will cover the Internet, bulletin board systems, and other restricted-access networks. Local area networks are also covered, even within an office (unless it is considered that an employer does not provide a 'service' to itself).

Most of the offences are committed in relation to the transmission or other dealings with an 'article', which is defined to include, inter alia, 'a publication' and 'a computer program and related data' (cl 3). 'Publication' means 'any written or pictorial matter' (excluding films, computer games and advertisements for them) (cl 3).

In the Victorian Bill, the definition of 'online information service' is of similar scope (cl 56). The offences in the Bill may be committed in relation to any 'publication', which has the same definition (cl 3) as in the WA Bill.

Neither Bill therefore inherently excludes any form of computerised private communications just because of its definitions. The WA second reading speech confirms that it was intended that e-mail should be covered.

Banning 'objectionable material'

'Objectionable material' in the WA Bill is essentially material that it is intended the Bill will ban completely from computerised communications. It is defined (cl 100) to mean:

(a) films, computer games or publications banned under the classification schemes elsewhere in the Bill;

(b) 'child pornography' (defined very broadly);

(c) articles promoting, inciting or instructing in matters of crime or violence; or

(d) 'an article that describes or depicts, in a manner that is likely to cause offence to a reasonable adult', (in summary) violent coercion of sexual conduct, necrophilia, use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct, bestiality or acts of torture or the infliction of extreme violence or extreme cruelty.

It is an offence to use a computer service to 'transmit' or 'obtain possession' of an article knowing it to be objectionable material (plus some related offences), punishable by a $15,000 fine or 18 months' imprisonment, in the case of an individual, or $75,000 otherwise (cl 102(1)). The only defences are if the article is 'of recognised literary, artistic or scientific merit' or is a 'bona fide medical article', and the dealing with the article which constitutes the offence 'is justified as being for the public good' (cl 102(2)).

The privacy issue arises principally from (d) of the definition of 'objectionable material'. Should consenting adults be able to engage in private conversations by electronic mail which describe (in a way which is likely to offend other reasonable adults) any of the matters set out in (d)? If adults have such private conversations face-to-face, by telephone or by 'snail mail' (the post), their conduct is not criminalised. What difference does e-mail make? Should any offences concerning private communications require additional elements, such as the communication being unsolicited, or the conversation constituting conspiracy to do a criminal act? Of course, many uses of e-mail are for non-private communications, such as mailing to discussion lists, so it is not as simple a matter as just exempting e-mail.

Other civil liberties concerns could arise from the breadth of (c) in the definition, and the fact that communication by internet of how to commit any minor crime, no matter how small a penalty it carries, could constitute an offence of far greater seriousness.

The Victorian Bill's approach in banning the publication or transmission or making available of 'objectionable material' (cl 57) is similar but with significant differences. Instead of knowledge being an element of the offence, it is a defence if 'the defendant believed on reasonable grounds that the material was not objectionable material' (cl 57(2)), a defence which is more limited than it seems because it requires an active belief on the defendant's part. The WA Bill makes it an offence to knowingly 'obtain possession' of objectionable material from an online service, but downloading or other forms of receipt of information by users is not an offence under the Victorian Bill.

Unlike the DoCA recommendations, there is no provision in either Bill for a defence based on compliance with an industry code of conduct in relation to 'objectionable material', and no defence of taking 'reasonable steps' to avoid contravention.

Protecting minors

'Restricted material' in the WA Bill means 'an article that a reasonable adult, by reason of the nature of the article, or the nature or extent of references in the article, to matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent behaviour, would regard as unsuitable for a minor to see, hear or read' (cl 100). It is an offence to use a computer service to 'transmit' or 'make ... available' such material to a minor, punishable by a $5,000 fine or six months' imprisonment in the case of individuals, and $25,000 otherwise (cl 103). However, there are defences to cl 103:

(a) that the defendant complied with a code of practice (that must be approved by the Minister and gazetted (cl 101);

(b) that the defendant took all reasonable steps to avoid contravention; or

(c) that the defendant believed on reasonable grounds that the recipient was not a minor (cl 103(2)).

The Victorian approach (cl 58) is again different. Separate offences are created in relation to 'material unsuitable for minors of any age' and 'material unsuitable for minors under 15'. There is no provision for a defence based on compliance with a code of conduct. However, defences similar to the other two WA defences are provided, as is an additional defence of reasonable belief that the material was not material in the relevant category.

Loss of anonymity?

The WA second-reading speech states that 'service providers who establish adults-only services and who take reasonable steps to screen out minors should be protected from prosecution'. Although the speech says that the Internet should not be 'reduced to the level suitable for a five-year old', and that parents and teachers have the 'ultimate responsibility' to control access, the effect of this Bill could be to force any service provider whose service may possibly contain material 'unsuitable for a minor to see' to take the cautious approach and hide access behind identity checks and password controls so as to at least appear to be excluding minors.

Some of the perceived anonymity of using the Internet may disappear as a result. This 'anonymity' was always more apparent than real, as system operators can usually know at least the Internet addresses of those using their services. However, users may now have to disclose their names, addresses and ages in order to access generally innocuous services provided by over-cautious providers. Privacy is diminished when anonymous transactions, including obtaining information, should be possible but are not. In addition, an intangible but important element in the perception of cyberspace as public space, rather than a collection of private spaces with restricted entry, may be an unintended casualty of this legislation.

Exposing service providers?

Service providers might be regarded as transmitting or receiving information even though it is the users of their 'private' e-mail facilities who initiate such actions. The Bills are not clear on this point, but it might not matter. Service providers will only be liable for transmission or reception of 'objectionable material' under the WA Bill if they continue to make such material available on their server in the face of knowledge of its objectionable nature. Therefore, unless a service provider reads the e-mail of its users, it would normally not be liable for offences committed by its users. The Victorian Bill appears to go further to protect service providers, by providing that there is no offence by a person who provides an online information service, or a telecommunications service, 'unless the person creates or knowingly downloads or copies objectionable material' (cl 57(3)). Similar defences are provided in the Victorian Bill in relation to transmissions to minors (cl 58(3), 58(6)).

WA Internet Association endorses Bill

The WA Internet Association has endorsed the WA Bill, principally because it 'clearly defined' the prohibited material (Media Release, 2 November). It has also issued a very brief (one page) code of conduct for online service providers (see URL http://www.waia.asn.au/ for details, and extracts from the Bill).

The most relevant part of the code says that an online service provider will not 'knowingly permit those parts of my system under my control to have publicly available for downloading, files which infringe copyright or contain unlawful material, provided that the provision of cache, mailbox or directory usage to users shall not constitute permission to misuse such facilities.' This code, if approved by the Minister, would provide protection to Internet service providers and would not require them to exercise surveillance over user e-mail.

Moral panic legislation?

These Bills deserve far more consideration than is possible in one brief article. The rush to legislate without adequate public debate is unfortunate. The Australian Broadcasting Authority is preparing a report on the content of online services for the Minister for Communications, with a discussion paper reported to be due by the end of the year. This enquiry was supposed to provide an opportunity for more consideration until the states and territories took over the agenda. The Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies is also supposed to complete its enquiry into Regulation of Computer Online Services at the end of November. Together with the development of a national approach via SCAG, these inquiries may mean that there is still a second chance for an informed debate to develop.

A version of this article also appears in the 'Law in cyberspace' column, Australian Law Journal.