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

[rene]

On Wed, 16 Apr 2008 21:58:31 +0800, Jeremy Malcolm wrote:

> 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.  

While I more or less agree with that, imo it should also be noted that the 
IIA code itself is a direct result of government regulation/censorship. 
This is not "privatised content censorship" (as Roger's subject line 
suggests). The purpose of the IIA code is to establish a "safe harbour" for 
content hosts so those who comply with it won't find themselves subject to 
a "service-cessation-notice" or "take-down notice" issued by the ACMA, or 
being fined for a breach of some other aspect of the censorship law.

Schedule 7 of the BSA is an extension of the Internet censorship laws that 
commenced in 2000. It was enacted last year principally in reaction to the 
Big Brother TV program "live streaming" issue a couple of years ago. The 
2000 law, Schedule 5 of the BSA, did not apply to "streaming" content. So 
Schedule 7 regulates/censors that and also various other things that 
arguably weren't regulated before such as commercial content services 
delivered to mobile phones, and to "links services", and so on.

Schedule 7 specifies (albeit vaguely, one example of which has already been 
given by Jeremy) what can or cannot legally be made available and under 
what circumstances (e.g. R18+ content and MA15+ content - the latter if 
part of a "commercial service" - can only legally be made available if 
access is subject to an age verification system).

Schedule 7 doesn't specify how content hosts can comply or what they must 
do to comply. Instead it provides that the ACMA can develop a mandatory 
Industry Standard (about such things as e.g. what a content host must do to 
'verify' age) if an Industry Code is not developed by the industry and/or 
if the ACMA doesn't consider the Code provides adequate "community 
protection" or whatever. So, the IIA develops a Code, and they hope the 
ACMA will approve it. If so, then any content host that complies with it, 
theoretically can't be found in breach of Schedule 7. Obviously the 
industry would rather develop a code that it thinks it's feasible to comply 
with, than leave it to ACMA to develop a mandatory standard which could 
theoretically be more difficult and/or impossible to comply with.

However, it's not the Code that establishes the censorship rules, it's the 
law - the Code cannot reduce those restrictions. Hence the code is not 
"privatised censorship", it's intended to serve the purpose of a safe 
harbour for content hosts by establishing a set of compliance practices 
that the ACMA agrees are adequate. If the ACMA approves the Code they're 
effectively saying the practices are adequate and therefore would be 
unlikely to take legal action against a content host who was complying with 
the code.

Irene