11 August, 1997
Mr Brian P Stewart
Online Industry and Communications Technology Branch
Department of Communications and the Arts
GPO Box 2154
Canberra ACT 2601
Dear Mr Stewart
Principles for a Regulatory Framework for On-Line Services in the Broadcasting Services Act 1992
I should like to make a submission on behalf of the Council of
Australian University Librarians in regard to the principles for
a regulatory framework for online services. The Council represents
all university libraries in Australia and is therefore vitally
concerned with access to information for research and study.
Universities and their libraries are in the information business.
Unrestricted access to information is essential for the proper
functioning, development and growth of Australian universities.
University libraries are the major providers of information resources
and services to the staff and students of their universities.
Much of that information, which is needed for teaching and research
in Australian universities, has always been, and must be, acquired
from sources outside Australia. The Internet has become a vital
link to remote sources of information and an important conduit
for acquiring electronic information rapidly. It is used by university
libraries to provide access to a large and growing number of electronic
publications, databases and World Wide Web resources which complement
and augment their print collections. As University Librarians
we are concerned that the application of the proposed principles
will seriously restrict ready access to information needed for
teaching or research purposes.
Censorship of material which is not illegal, but which may be
offensive to some adults, will inhibit teaching and research in
the university environment which must encourage students and staff
to consider and assess a wide range of conflicting viewpoints.
We are concerned in particular with the following specific issues:
- The Principles seek to impose much more stringent access
restrictions for electronic materials than are currently in place
for print materials. In the print environment some publications
are banned by law. However many publications which are not illegal
but which may be offensive to some adults and which may not be
suitable for children, are available to adults. Responsibility
for deciding whether to view this material resides, as it should,
with the individual adult. If we were to remove from circulation
all print publications which some person might find offensive,
or which failed to meet undefined "community standards",
the bookshelves in most university libraries would be virtually
empty. We believe that the access principles which currently apply
to print publications in Australia should also apply to electronic
- The Principles do not take into account that clearly objectionable
material such as child pornography is already illegal, or highly
regulated, under existing law. We do not,of course, advocate
unrestricted access to such material. We believe that children
should be protected from exposure to unsuitable material. However,
this does not make it necessary to reduce the adult population
to reading and viewing only what is appropriate for children.
The protection of children should be largely the responsibliity
of parents as it is with print material. It can also be assisted
by the use of filtering software although it needs to be recognised
that filters can be imprecise and there are many documented cases
of access being denied to useful or otherwise innocuous material
(such as material dealing with breast cancer). With regard to
adults the library profession has a long and proud history of
defending the right of adults to freely access information which
is not prohibited by law. This right is an essential component
of a democratic society.
- Content illegal in one State will be illegal Australia
wide. This will be very difficult to interprete and administer.
It will inevitably lead to conflicts between jurisdictions and
may be unconstitutional.
- In the university environment there is a further consideration.
Research depends on access to necessary information. Such
information may include publications, print or electronic, which
would otherwise be restricted or banned. For example, research
on the effects of access to pornography on the Internet requires
access to such information. Likewise research in forensic pathology
demands the use of illustrations of bodies which many members
of the community may find both distressing and objectionable.
University libraries must continue to be permitted to make available
such information, under appropriate access conditions, to support
- The Principles make online service providers responsible
for the content created and published by others. This is unreasonable
and unworkable. We believe a clear distinction should be made
between the responsibility of those who produce and publish content
and those who are intermediaries such as carriers and Internet
- Codes of practice will need to be approved by the Government,
through its regulatory agency the Australian Broadcasting Authority,
before they can be applied. This might facilitate censorship for
political reasons. It will, however, severely limit the freedom
of industry groups to develop and apply reasonable and workable
codes of practice and is thus opposed to the principles of industry
self regulation which are being promoted by the Governments of
Australia and the ACCC in particular.
- The Australian Broadcasting Authority will be empowered to
monitor the operation of codes of practice to ensure that they
provide "appropriate community safeguards". Appropriate
for whom? The Government? Children? A particular minority pressure
- Carriers and Internet Service Providers will be required to
make judgements about how material published by their users
is likely to be classified by the Office of Film and Literature
Classification. This is unreasonable and unworkable. It demands
a degree of knowledge of content and prescience in predicting
community expectations and the possible actions of regulators
that the operators of telecommunications services and access points
could not possibly be expected to have.
- The Principles are replete with phrases such as "community
standards", "objectionable content", and "content
that is of concern to the community". None of these phrases
are defined. What do they mean? How will community standards or
concerns be ascertained? The problem, of course, is that what
is considered offensive by one person is often not considered
offensive by many others. There is a danger here of compromising
the rights of the community as a whole by giving undue weight
to the concerns of individuals or minority groups who are extremely
sensitive about a particular issue: this undermines Australia's
pluralistic and tolerant community ethos.
- The Principles do not make any distinction between
bodies or organisations which
(1) deliver information,
(2) store information,
(3) create information and
(4) use information.
These are all distinct roles which are each essential parts of
the communication chain. However, culpability for the publication
or misuse of objectionable material cannot be laid on all in the
chain: it rests on those who, with intent, contravene the law.
- A further source of confusion is that the Principles focus
on "online service providers" which are defined as Carriage
Service Providers as set out in the Telecommunications Act 1997.
The responsibilities of other categories of online service
providers such as Internet Service Providers, Internet Access
Providers, and Content Providers are not clearly identified.
A single body could be operating simultaneously in all four categories
at the same time: it is not at all clear from the Principles or
the practical aspects of service operation where the responsibility
In summary, the Council of Australian University Librarians is
most concerned by the proposed Principles for a Regulatory
Framework for On-Line Services in the Broadcasting Services Act
1992. We believe the proposed Principles are very seriously
flawed and that their imposition would seriously harm the Australian
community, particularly in regard to access to information for
research and study. I should be pleased to expand upon these points
if it would be of assistance.
Alex Byrne Diane Costello
President Executive Officer
Council of Australian University Council of Australian University
c/- Northern Territory University LPO Box 169 (Licensed Post Office)
PO Box 1246 Australian National University
CASUARINA NT 0812 CANBERRA ACT 2601
Tel: +61 8 89466192 Tel: +61 6 249 2990
Fax: +61 8 89451317 Fax: +61 6 248 8571
Email: firstname.lastname@example.org Email: email@example.com
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