From M/Cyclopedia of New Media
Effectiveness of Legislation
Legislation is only effective if there are provisions for it to be successfully enforced. In Australia, legal rules are transferred to specific authorities, in the case of the Broadcasting Services Amendment (Online Services) Act 1999, the Australian Broadcasting Authority (ABA) is responsible for enforcing Internet Service Providers (ISPs) to comply with the Act.
The principle of The Online Services Act is to hold the carriers of content responsible for the material they carry rather than the makers of the content. It achieves this through ‘online provider rules’ (Broadcasting Services Amendment (Online Services) Act 1999) which internet carriers must comply with or face fines of $27,500 for every 24hour period of non-compliance.
The stated intent of the amendments is to only censor online what would be subject to censorship offline, and in a method commensurate with the regulation of other media. Nevertheless, may believe that the effect of the Act is potentially much more damaging than this. It has been argued that the provisions will:
- stifle Internet development
- introduce anti-information politics to the currently anarchic Internet
- not work for technical reasons
- hinder the exploitation of commercial opportunities
- Introduce political censorship through the introduction of politicised filtering software
- breach privacy principles
- lead to an unacceptable degree of censorship or to collateral damage
- put Australia out of step with the global information community.(Yee, 2003, p375)
The fundamental problem with the Act is that it makes the content carrier responsible for the content rather than the person responsible for producing the content. If the Act were to make the content producers liable rather than those who transport the content it would still offend principles of free speech, but it would reduce compliance costs and make the right people responsible. ISPs seam to send content offshore when the ABA requests that it be taken off their sites. As it stands internet access may become more expensive as internet carriers will have to pay more to international service providers for access to their content and since Telstra does not differentiate cost between local and international internet sites, access costs will become higher.
The technical application of the Act is difficult since it relies on complaints.
Early application of the legislation suggests that it may be functioning more as ‘symbolic policy’ rather than as an effective means of content regulation: only a hundred complaints were received in the first six months of the legislation’s operation, and in the majority of cases, the offending content was simply re-hosted outside of Australia. (Flew, 2002, p195) So while the Act does have the ability to enforce harsh penalties upon ISPs allowing access to inappropriate sites the legislation needs to evolve with the development of the Internet to remain practical.
Kathryn Badger 10:01, 28 Oct 2004 (EST)
Other Relevant Wiki Entries
- [[Internet_Pornography_Censorship:_Regulation_and_Responsibility]]
- E-commerce_and_the_Law-Risk_to_Consumers
- E-commerce_and_the_Law-Consumer_Protection
- Implication of Applying Traditional Contract Laws to Electronic Contracts
Kathryn Badger 10:01, 28 Oct 2004 (EST)
References
- Broadcasting Services Amendment (Online Services) Act 1999
- Johnson D and Post D Law and Borders – The Rise of Law in Cyberspace (1996) Stan L Rev 1367 in Fitzgerald, B. and Fitzgerald, A. (2002) Cyberlaw: Cases and materials on the Internet, digital Intellectual property and electronic commerce, Australia: LexisNexis Butterworths
- Scott, B (1999) An Essential Guide To Internet Censorship in Australia, in Fitzgerald, B. and Fitzgerald, A. (2002) Cyberlaw: Cases and materials on the Internet, digital Intellectual property and electronic commerce, Australia: LexisNexis Butterworths
- Weber, R. (2002) Regulatory Models for the Online World, Switzerland: Schulthess Juristische Medien.
- Yee Fen Lim. (2003) Cyberspace Law: Commentaries and Materials, Victoria, Australia: Oxford University Press.
Kathryn Badger 10:01, 28 Oct 2004 (EST)
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Kathryn Badger 10:01, 28 Oct 2004 (EST)
