[LINK] RFC: IIA Draft Code re Privatised Content Censorship

[Jeremy Malcolm]

On 16/04/2008, at 7:54 PM, Roger Clarke wrote:
> Okay, I don't actually *know* that it's what the Subject: of this  
> email says, but you may need to be both a lawyer and an experienced  
> post-modernist analyst to reverse-engineer it.

A close reading of IIA codes such as this one suggests a policy of  
damage limitation on the IIA's part.  Its members understandably do  
not want to have to act as lawyers, judges and policemen (and we would  
not want them to).  So the code goes as far as it needs to in order to  
avoid direct government regulation (which Schedule 7 reserves to ACMA  
the power to do), but no further.  For example:

* Schedule 7 suggests that the industry code deal with "procedures to  
be followed in order to deal with safety issues associated with  
commercial content services that are chat services".  In response the  
IIA simply says that "should *consider* implementation of procedures  
to deal with safety issues associated with access to and use of the  
Chat Services" (emphasis added).

* It also suggests that the code deal with "the making and retention  
of recordings of live content provided by a live content service".   
The IIA code simply says that "*If* a Commercial Content Service  
Provider who or which provides Live Content to End Users makes a  
recording of that Live Content, it is recommended that recordings  
should be kept for 60 days after transmission of that Live Content,  
where reasonably practicable having regard to the availability and  
cost of storage" (emphasis added).

What the Code doesn't do that is cure the deficiencies of the  
legislation.  There are too many of these to go into in detail, but a  
few examples:

* Where a content host links to a third party site that "specialises  
in prohibited content or potential prohibited content", the first  
party is deemed to be linking directly to that content.  But what does  
"specialises in" mean?  Does that mean that more than 50% of the  
material they host is prohibited or potentially prohibited?  Does an  
imageboard such as anonib.com, where all content is supplied  
anonymously by users, "specialise in" prohibited content, even though  
a small percentage of the total is potentially prohibited?

* If a complaint about live content is made to ACMA and accompanied by  
a recording of the content, then the complainant is exempted from  
action for infringement of copyright.  But there is no protection for  
the complainant is possession of the recording is illegal under State  
censorship legislation.  So if a Web site hosted a Webcam video of an  
underage girl taking her top off, and didn't record it, the  
complainant would have no way of providing any evidence of this to  
ACMA without breaking the law.

-- 
Jeremy Malcolm LLB (Hons) B Com
Internet and Open Source lawyer, IT consultant, actor
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