Content Regulation
and
Restrictions on Free Speech
(inc. censorship, gambling,
spam…)
David Vaile
Executive Director
Cyberspace Law and Policy Centre
http://www.cyberlawcentre.org/genl0230/
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Summary
Classification
 Internet content regulation
 Gambling and online services
 Spam

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Those cartoons…





ABC Media Watch criticises both the
cartoons and the decisions in Australia not
to print them (after fact)
www.abc.net.au/
mediawatch/transcripts/s1568919.htm
www.abc.net.au/
mediawatch/transcripts/s1568881.htm
What do you think?
Is it about law, ethics, free speech,
respect… ?
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GENERAL CENSORSHIP
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CENSORSHIP:
CLASSIFICATION of CONTENT
• OFLC - Guidelines for the Classification of
Films and Computer Games
• www.oflc.gov.au/
resource.html?resource=62&filename=62.pdf
• www.oflc.gov.au
• EFA - censorship outline
• www.efa.org.au/
Issues/Censor/cens1.html
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INTERNET CONTENT
Regulation
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Content Regulation United States


‘Constitutional protection’ of free
speech
First Amendment to the US
Constitution
“ Congress shall make no law...
prohibiting the free exercise...
or abridging the freedom of speech”.
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Communications Decency Act
1996 (CDA)
• CDA
http://www.epic.org/CDA/cda.html
• ‘On a screen near you: Cyberporn’
xenia.media.mit.edu/~rhodes/Cyberporn/time.html
• Carnegie Mellon University study
‘Marketing Pornography on the Information
Superhighway’
• American Civil Liberties Union (ACLU)
www.aclu.org
• Citizens Internet Empowerment Coalition (CIEC)
www.ciec.org
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Action challenging the
constitutionality of the CDA


American Civil Liberties Union v Reno
929 F Supp 824 (1996) Philadelphia District Court
Plaintiffs’ opposed two key prohibitions in the Act:
• s 233 (a) illegal to knowingly send a minor material
which is legally ‘obscene’ or ‘indecent’; and
• s 233 (d) prohibits knowing sending or displaying of patently
offensive messages, according to community standards in a
manner that is available to a person under 18 years.
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ACLU’s request for injunction
against enforcement granted

Attorney General (Janet Reno)
appealed to the Supreme Court
• 117 S Ct 2329 (1997)
supct.law.cornell.edu/
supct/html/96-511.ZO.html
• Commentary
www.reed.edu/~gronkep/
webofpolitics/fall2001/casons/ch2.html
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Child Online Protection Act
1998 (COPA)



Second attempt
www.epic.org/
free_speech/censorship/copa.html
www.reed.edu/~gronkep/
webofpolitics/fall2001/casons/ch3.html
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ACLU v Reno II
217 F 3d 162 (2000)

www.epic.org/
free_speech/copa/3d_cir_opinion.html
• became ACLU v Ashcroft
when John Ashcroft
became the new Attorney-General

www.ca3.uscourts.gov/
recentop/week/991324.pdf
• March 2003
Third Circuit Court of Appeals
struck down COPA as unconstitutional
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CDA and COPA cases
make it clear that to be
constitutionally valid, US laws
attempting to regulate Internet content
must be very narrowly drafted and
highly specific to maintain the delicate
balance between the protection of
children and freedom of speech and
expression. ”
“ ...
Sutter, ‘Nothing new under the Sun:
Old fears and the new media’ (2000) IJLIT
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Useful links American content regulation




‘Communications Decency Act’ –
www.epic.org/cda
‘The Legal Challenge to the Child Online
Protection Act’
www.epic.org/free_speech/copa.
‘Internet Regulation: Governmental v
Individual;’
www.reed.edu/~gronkep/
webofpolitics/fall2001/casons/ch1.html
‘Content Regulation on the Internet’
iml.jou.ufl.edu/projects/fall01/song/page5.
html
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Content Regulation in Australia


Online content regulated by both Cth and State legislation.
Commonwealth regime: framework for regulating
Internet Service Providers (ISPs) and
Internet Content Hosts (ICHs).
• ISP: a person who supplies an
Internet carriage service, consisting of
service points within Australia, which enable end-users
(members of public) to access the Internet.

Corporate intranets not generally regarded as ISPs
because not accessible to the public.
• ICH: person who hosts Internet content in Australia.

Eg, a person with own website or server in Australia, and
hosts content provided by a range of contributors
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Cth legislative instruments
Classification (Publications,
Films and Computer Games) Act
1995 (Cth)
 National Classification Code
 Schedule 5 and Schdule 7 to the
Broadcasting Services Act 1992

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Content regulation in Australia (2)
the States

Content providers, creators and users are regulated by
State laws: the intentional publication and transmission
of proscribed material online.
• While slightly out of date Volume 6, Number 1
(2000) of UNSW Law Journal is a good resource
http://www.austlii.edu.au/au/journals/UNSWLJ/2000
• The article ‘The Government's Regulatory Framework
for Internet Content’ is was written by Senator
Richard Alston, former Minister for Communications,
Information Technology and the Arts.
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State and Territory Content
Regulation (3)




Legislation regulating publication and transmission
of proscribed material online by content providers
and content creators is different in each state and
territory; some states are yet to regulate.
1999 Standing Committee of Attorneys-General’s
group of State and Territory Censorship Minsters
released draft model legislation
http://www.efa.org.au/Publish/actdraft1.html
Aim: standardising censorship across states
However, consistent model could not be agreed
upon and movement has since been abandoned.
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States which have enacted
censorship legislation include:


Victoria – Classification (Publications, Films & Computer
Games) (Enforcement) Act 1995 (Vic)
www.austlii.edu.au/au/legis/vic/consol_act/cfacga1995596/
Northern Territory – Classification of Publications, Films and
Computer Games Act 1996 (NT)
www.austlii.edu.au/au/legis/nt/consol_act/copfacga508/index.html


Western Australia – Censorship Act 1996 (WA)
www.austlii.edu.au/au/legis/wa/consol_act/ca1996137/index.html
South Australia – Classification (Publications, Films and
Computer Games) (On-line Services) Amendment Act 2002
(SA) in force December 2002 based largely on 1999 draft
www.parliament.sa.gov.au/dbsearch/legislation_search.asp
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States (cont)


NSW - Classification (Publications, Films & Computer Games) Act
1995 (NSW) did not include regulating content on online services
Amendments in Schedule 2 Classification (Publications, Films and
Computer Games) Enforcement Amendment Act 2001 based on 1999
draft www.austlii.edu.au/au/legis/nsw/consol_act/cfacgeaa2001676/sch2.html
• Commencement date not proclaimed for Schedule 2.
• NSW Parliamentary Standing Committee on Social Issues inquiry
into Bill recommended Schedule 2 be repealed
http://www.parliament.nsw.gov.au/prod/parlment/Committee.nsf/
LookUp/Committee/StandingCommitteeonSocialIssues?Open
• 9 December 2002, NSW Attorney General announced
"the Act will neither be commenced nor repealed until
[Commonwealth Government's review of Commonwealth
censorship legislation] has been completed and the findings have
been considered."


Queensland and Tasmania have yet to enact any relevant legislation.
More information about state and territory content regulation:
Electronic Frontiers Australia’s Internet Censorship in Australia
http://www.efa.org.au/Issues/Censor/cens1.html.
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ISP and ICH Exemptions

Important: ISPs and ICHs cannot be held responsible under
State or Territory law or under common law or a rule of
equity for carrying or hosting particular material on Internet
if they were not aware of the nature of the content
(Sch 5 cl 91 Broadcasting Services Act 1992 (Cth)).
• For example, if an ISP carries material which is
defamatory or in contempt of court, but is not aware
that the material is carried on its service, ISP cannot be
sued or prosecuted for carrying this material.
• Intention of law: content providers or users liable
• But, if ISP becomes aware of illegal or infringing
material on its service and takes no action to have it
removed within reasonable time, protections not apply.
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Commonwealth Regulation




Broadcasting Services Amendment (Online
Services) Act 1999 (Cth): 1 January 2000
www.austlii.edu.au/au/legis/cth/num_act/
bsasa1999n901999476/
The Act inserted new Schedule 5 to
Broadcasting Services Act 1992 (Cth)
scaletext.law.gov.au/html/comact/8/4013/
top.htm
Schedule 5 established the ‘Online Content
Co-Regulatory Scheme’ for regulation of
prohibited content on the Internet
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The Commonwealth Scheme (1)


Principle: what’s restricted offline
should also be restricted online
Access to online content which is, or would
be likely to be,
• Refused Classification (RC), or
• Classified X or R

by the Office of Film and Literature
Classification (OFLC) Board
should be restricted in the same way
as access to offline material
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The Scheme (cont 2)

Act establishes co-regulatory scheme:
Australian Communications & Media Authority
(ACMA, former ABA) www.acma.gov.au
and Internet industry www.iia.net.au (IIA)
share responsibility for regulating Internet content
• Scheme underpinned by industry-developed
Codes of Practice
• ACMA can supplement using reserve powers

Activity by ACMA is complaints-driven:
Sch 5 cl 2 Broadcasting Services Act 1992
• Department of Communications, Information Technology
and the Arts (DCITA) overview of scheme, insight into
Commonwealth’s aims
www.dcita.gov.au/__data/assets/file/32781/online_conten
t_co-reg_scheme_report_Sept_2005.rtf
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Sen. Alston The Government's Regulatory
Framework for Internet Content (2000)


Looks at Government’s reasoning
behind 1999 amendments
(http://www.austlii.edu.au/au/journa
ls/UNSWLJ/2000/#V6N1FORUM)
some government aims (for example
consistent laws among States,
Territories and Commonwealth) yet
to materialise
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1999 Amendments


Required review of legislative provisions
establishing online content scheme by 1
January 2003
September 2002 DCITA published Issues
Paper ‘A review of the operation of
Schedule 5 to the Broadcasting Services
Act 1992’
www.dcita.gov.au/media_broadcasting/co
nsultation_and_submissions/a_review_of_
schedule_5_to_the_broadcasting_services
_submissions_closed
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Submissions
• Mood of the Paper revealed support for stricter
content regulation
• One option considered by Minister: a central
system to filter all local and overseas internet
traffic through a "proxy" server.
• But fears it would slow down overall Internet
• Favours approach to toughen regulations on
internet service providers, already obliged to
filter out offensive material.
• See also ‘Canberra clamp on net porn’ March 5
2003 Australian IT (Factiva)
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Elements of the
Commonwealth Scheme
Main elements of the Scheme:
• Industry codes of practice
• ACMA-administered
complaints system
• Community education
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3 Codes of Practice
regulating ISPs & ICHs under Cth Scheme
• ISP Obligations in Relation to Internet
Access Generally
• ISP Obligations in Relation to Access to
Content Hosted Outside Australia
• Internet Content Host Obligations in
Relation to Hosting of Content Within
Australia
Codes drafted by Internet Industry Association (IIA)
(http://www.iia.net.au/codes.html) and registered by ABA,
in response to requirement in Act this be done by 1
January 2000; failing this ABA would have imposed a
standard on industry (Sch 5 cls 59 and 68 Broadcasting
Services Act).
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ACMA administered
complaints system



Under Scheme, any Australian resident or
company can complain to the ACMA about
offensive online content
ACMA provides telephone hotline as well as
online complaints form:
www.aba.gov.au/what/online/complaints/
ACMA required to investigate all bona fide
complaints, and decide whether material
complained about falls into any prohibited
category
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Community Education





Responsibility of ACMA and community advisory body
established by Fed Govt NetAlert
(http://www.netalert.net.au/)
Role: educate and inform public and industry about
managing access to prohibited Internet content
Scheme does NOT apply to private or restricted distribution
comms such as Intranets or email (definition of ‘Internet
content’ under Sch 5 cl 3 Broadcasting Services Act).
Does NOT apply to chatrooms or live audio or video
streaming
Does apply to material contained in newsgroups (page 18
Revised Explanatory Memorandum, Broadcasting Services
Amendment (Online Services) Bill 1999
http://scaleplus.law.gov.au/html/ems/0/1999/0/064240
4224.htm)
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Prohibited Content

Site hosted in Australia or overseas?
(Sch 5 cl 10 Broadcasting Services Act).
• Hosted in Australia: ‘prohibited content’ is
Internet content Refused Classification (RC) or
classified X by OFLC
 also Internet content rated R, where not
subject to ‘Restricted Access System’
• Hosted overseas: ‘prohibited content’ only
that which would be Refused classification (RC)
or classified X by OFLC

‘Potential prohibited content’ is Internet content
not classified by OFLC, but likely to be prohibited
content if it were (Sch 5 cl 11 Broadcasting Services
Act).
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Restricted Access System



RAS is system for preventing access by children
to R-rated content (Sch 5 cl 4 BSA)
Minimum requirements for RAS's are in ABA's
Restricted Access Systems Declaration 1999
http://www.aba.gov.au/newspubs/news_releases
/archive/1999/130nr99.shtml
To qualify as a ‘Restricted Access System’, the
system must perform three functions:
• Registration
• Qualification/Validation
• Access
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Registration


The system must receive applications for
registration in hard copy or electronically
To be registered, potential subscriber must
• supply her/his name,
• declare s/he is 18 years of age or older
• provide credit card details or other evidence of
age
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Qualification/Validation



The system must verify the potential
subscriber’s age
Upon verification, issue a personal
identification number (PIN) or password
to applicant
on condition the security information is
not revealed to anyone else
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Access


The system must require the applicant to
input a valid password or PIN
before granting access to content which is,
or would be likely to be, classified R.
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ACMA Complaints Scheme (1)

Any person who is an Australian resident or an
Australian company can make a complaint to the
ACMA about
• objectionable material on the Internet or
• about a contravention of the Codes by an ICH
(Sch 5 cls 22 – 25 BSA).


The complaint must be made either in writing to
the ACMA, or
via the online complaints form
www.aba.gov.au/what/online/complaints/www.asp
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Complaints Scheme (cont 2)




Upon receiving a complaint, ACMA must investigate it
unless the ACMA views the complaint as frivolous,
misguided or designed to undermine the scheme (Sch 5 cl
26 BSA).
ACMA must take action where it is satisfied that the
content complained of is prohibited content or potential
prohibited content.
Action taken by the ACMA will depend on whether content
complained of is hosted in Australia or overseas.
ACMA is required to inform all complainants of the outcome
of their complaint (Sch 5 cl 26(3) BSA).
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ACMA action where material is
hosted in Australia




If prohibited content hosted in Australia and classified RC, X
or R (where no RAS in place): ACMA must issue a final
take-down notice directing ICH to cease hosting relevant
content by 6.00 pm next business day.
Where potential prohibited content has not been classified,
but ACMA is satisfied it would be substantially likely to be
classified RC, X or R (where no RAS in place):
ACMA must refer it to OFLC for classification.
An interim take-down notice must also be issued where
material is likely to be classified RC or X.
Notice directs recipient to cease hosting content until
ACMA has notified of classification of content determined by
OFLC. Requires that content be taken down no later than
6.00pm following business day (Sch 5 cl 30 BSA).
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ACMA action where material is
hosted in Australia (2)



ACMA must give ICH written notice of OFLC’s
decision.
If OFLC classifies content RC, X or R (where no
RAS in place:
content is prohibited content and must be dealt
with accordingly by ACMA (see above).
This means that hosting R rated content hosted
in Australia will be banned, unless there is an
RAS in place.
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ACMA action where material is
hosted outside Australia


If ICH is not in Australia, ACMA only takes action if
(potential) prohibited content is RC or X category.
If ACMA forms view that content complained of is or would
be classified RC or X: ACMA must notify suppliers of
Scheduled Filters and ISPs of location of content (Sch 5 cl
40 BSA).
• Notification is usually by email.
• notification happens pursuant to Designated Notification
Scheme set out in the IIA Codes.

ACMA may notify content to an Australian police force, if
it thinks such action is warranted.
• For example, such material might be that which contravenes a
State Crimes Act such as child pornography, or matter
instructive in the commission of a crime.
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Enforcement

Failure to comply with ACMA take-down notice
or direction to comply with Code is an offence
• Maximum penalty of $5,500 for individuals or
$27,500 for corporations (Sch 5 Part 6 BSA).

A contravention of an ACMA direction or notice is
considered to be a continuing offence
• Each day during which the contravention
continues and can attract up to 10% of the
above penalties per day (s 213 BSA).
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Criticisms of the
Commonwealth Scheme

2003 Australia Institute study revealed current scheme is a
“manifest failure”.
• Youth and Pornography in Australia: Evidence on the extent
of exposure and likely effects revealed 84% of teenage boys
and 60% of girls accidentally came across Internet sex sites
and 38% of boys and 2% of girls deliberately visited such
sites.
• drastic recommendation: all ISPs filter all net content
http://www.tai.org.au/WhatsNew_Files/WhatsNew/DP52sum.pdf
• view close to Federal Govt position, announced look at
reducing access to hardcore pornography from PCs
• ‘Net porn controls useless: study’ March 4, 2003 cnn.com
http://edition.cnn.com/2003/WORLD/asiapcf/auspac/03/03/
australia.netporn/index.html
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EFA criticised ineffectiveness of
online regulation scheme





“failed dismally insofar as its alleged objective of making the Internet
safer for children is concerned”
(http://www.efa.org.au/Issues/Censor/cens1.html).
Unlike AI, EFA condemns current regime as infringement on adult
free speech both generally, and in light of offshore publications not
receiving same level of censorship.
Urges those who value freedom of speech to lobby Parliament repeal
1999 amdts to Broadcasting Services Act.
2002 EFA response to DCITA’s Review of Operation of Schedule 5 to
Broadcasting Services Act 1992 noted failings of regulatory scheme
and review paper itself: Alston stmt trumpeting success of scheme
were by own admission based on erroneous statistics.
“ABA's refusal to provide URLs of taken-down Australian hosted web
pages, on ground that such information would enable a person to
access prohibited content, indicates the ACMA believes such content
has not been taken down from the Internet”.
(http://www.efa.org.au/Publish/efasubm_bsa2002.html)
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Codes of Conduct



Internet Industry Association (IIA)
Internet Industry Codes of Practice
(version 7.2)
http://www.iia.net.au/ContentCode7_2.rtf
Operates as part of a co-regulation
scheme:
While voluntary, Broadcasting Services Act
provides that if ACMA directs an ISP or
ICH to comply with this code, they are
required to do so
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ISPs and ICHs responsibilities (2)






Take reasonable steps to make sure that children do not
become Internet subscribers without the consent of an
adult;
Encourage subscribers who are commercial content
providers to label content that might be unsuitable for
children;
Advise subscribers who are commercial content providers
about their legal responsibilities in relation to content;
Inform users about ways they can supervise and control
their children’s access to Internet content;
Help subscribers block unwanted and undesirable email;
On becoming aware that an ICH is hosting Prohibited
Content advise them about the Prohibited Content;
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Codes (cont 3)



Provide Scheduled Filters for subscribers in
Australia at charge determined by ISP (although
in case of individual subscribers this charge
cannot exceed cost to the ISP of providing filter).
Obligation on ISPs to provide approved filters not
apply where already an effective mechanism in
place to filter content ( ‘designated alternative
access prevention arrangement’);
Take reasonable steps to inform subscribers
about their right to, and procedures for, making
complaints to the ACMA about online content.
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Codes (cont 4)



Codes also recognise limitations of present filtering
technologies and impracticality of filtering all
Internet content
Nevertheless, Codes endorse end user
empowerment including education, provision of
information, and filtering methods as most
practical means by which responsible adults can
facilitate appropriate controls, particularly children
To encourage adoption of best practice standards
IIA launched Family Friendly ISP Seal scheme.
ISPs compliant with IIA codes to display a special
seal known as ‘Ladybird Logo’.
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IIA Codes of Practices

IIA Content Regulation Code of Practice
Webpage
• http://www.iia.net.au/contentcode.html

Guide for ISPs: Information About Online
Content
• http://www.iia.net.au/guide.html

Guide for Internet Users: Information
About Online Content
• http://www.iia.net.au/guideuser.html
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INTERACTIVE
GAMBLING
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KEY ISSUES
Policy: What was the Government
trying to achieve?
 Law: How is it trying to achieve it?
 Technology: Interaction with policy
and law.

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POLICY OBJECTIVES
Address a potential area of problem
gambling before it starts by
curtailing opportunities for it to grow.
 Moratorium on new Australian
services from May 2000 to May 2001
 NOIE report: feasibility &
consequences of a ban on interactive
gambling.

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INTERNET GAMBLING
1,400 sites (100% increase in 12
months to 2001)
 Revenue estimates:
2001 $US2.5 b
2002 $US3.5 b
2003 $US5.0 b

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STATE OF PLAY
Moratorium expired 18 May 2001
 Interactive Gambling Act 2001

-Senate Committee reported 23 May

Offline gambling issues being
separately addressed by
Commonwealth/ States.
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INTERACTIVE GAMBLING ACT
2001


Prohibits Australian-based ‘interactive
gambling services’ from being provided to
customers in Australia.
Established complaints regime for Internet
gambling services
• focus is services hosted outside Australia

http://www.austlii.edu.au/au/legis/cth/con
sol_act/iga2001193/
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MAIN OFFENCE CREATED
Section 15
A person is guilty of an offence if:
(a) the person intentionally provides
an Australian-based interactive
gambling service; and
(b) the service has an Australian
customer link.
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WHAT SORT OF
‘GAMBLING SERVICES’?
Placing, making, receiving or
accepting bets
 Introducing gamblers to providers
 Lotteries & lottery tickets
 A game of chance,
or of mixed chance and skill,
played for something of value
and for consideration

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NOT AFFECTED
Contracts that, under Corporations
Law, are exempt from a law relating
to gaming or wagering
- options and futures contracts
- online share trading
 “Linked jackpot” gaming machines.
 TV game shows!

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AUSTRALIAN-BASED
Interactive Gambling Services
Provided in the course of carrying on
a business; and
 Provided to customers using:

• Internet or other listed carriage service
• broadcasting or datacasting service
• any other content service; and

Has an Australian-provider link.
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AUSTRALIAN-PROVIDER LINK
Carrying on a business in Australia;
or
 Central management & control is in
Australia; or
 Provided through an agent in
Australia; or
 Relevant Internet content is hosted
in Australia.

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AUSTRALIAN
CUSTOMER LINK

If, and only if, any or all of the
customers of the service are
physically present in Australia
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OTHER LEGAL ISSUES

Constitutional heads of power
Claims for compensation
 Constitutional issues:

• is any property being “acquired”?
• broader dimension: a “moral claim”?
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Technology Issues
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TECHNOLOGY ASPECTS
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Blocking / filtering technologies
• none 100% effective
• all affect Internet performance
• mandatory vs voluntary
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Overseas sites
• the online content regime as a model
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Tasmanian breakthrough?
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BetFair agreement with Tasmanian
government January 2006
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“Briefings by Betfair Australia - a 50-50 joint venture
Betfair UK and Kerry Packer's Publishing &
Broadcasting Ltd - convinced MLCs of integrity of
betting exchange”
allegations of ‘free’ hospitality
“After months of controversy filled with questions and
doubt from members of Tasmanian government and
Australian racing industry, British betting exchange
Betfair was finally granted a license to operate in
Tasmania”
Gaming Control Amendment
(Betting Exchanges) Act 2005 (Tas) URL
• Can bet on losers - an exchange
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SPAM, SPAM, SPAM
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Spam laws in Australia
and surveillance
Do Spam laws stop Spam,
or invite routine email
surveillance at work?
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Promise more than deliver?
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Internet: strange beast to regulate
• ‘Cyberspace’ out there
• Jurisdiction: none or too much?
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Brave attempts to legislate
• Good intentions and ingenuity

But often undermined by a flaw
• Fails to deliver on promise
• Side effects can swamp intended effects
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Email surveillance and Spam
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Spam threatens viability of email system
Legislation in 2003, each flawed
IT security seen as ultimate Spam solution
Workplace surveillance as the answer?
Threat to privacy of email
Misses the target
• Won’t work
• Erosion of trust, collateral damage
• Undermine training, organisation intelligence
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Spam threatens email’s viability
Spam is 2/3 of all email (Messagecare)
 Technical load on infrastructure
 Threat to trust, Internet social bonds
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• People begin to abandon email
• Network effect declines
‘Tragedy of the Commons’ (Catlett)
 Market and technical failure
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Some problems with real Spam
‘Epidemic’ of asymmetric attacks
 Sender is hidden
 Sender is out of jurisdiction
 Spam bots
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• Address harvesting
• Hybrid worms with built-in mail servers!
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Arms race, cheap technical advances
• Eg, Anti-filtering content
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A tale of 2003 Spam laws
Reaction to threat to Email system
 California’s Spam law
 US Federal ‘CAN-SPAM’ Act
 Australian Spam Act
 EU Directive (not covered)
 Spot the crippling flaws…

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Californian Spam laws of 2003
Stricter legislation than Australia
 Requires prior consent (‘Opt in’)
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• Can’t rely on ‘Unsubscribe’
• Unsubscribe is too late
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‘Private right of action’
• Anyone could have sued; but …
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Overridden by CAN SPAM (federal)
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US CAN-SPAM Act 2003
‘Opt out’, not ‘opt in’
 Requires only:
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• Good return address
• Honour opt out request
Over-rides Californian law
 Weakens protection drastically
 Triumph of Direct Marketing Assn
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Australia’s Spam Act 2003
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A different political balance
ADMA accepted ‘Opt-in’ (unlike US DMA)
Loopholes to drive a truck through?
• Exempt bodies, Purely factual messages…
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Dragnet to catch slippery spammers
• Single message can be Spam!
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Harsh ‘search and seizure’ powers
http://www.austlii.edu.au/au/legis/cth/con
sol_act/sa200366/
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Concepts in
Spam Act 2003 (Cth)
‘Commercial electronic messages’
 Banned if ‘unsolicited’
 Prior consent required:
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Explicit or implicit?
Covers individual emails
 Drastic fines for repeat offenders
 Complex exemptions
 Relationships relevant to the test
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Enforcement of Spam Act
ACMA under-resourced?
 ‘Softly, softly’ policy?
 Target the extreme abusers
 Liability net is wide and complex
 Many offences not prosecuted
 Wide discretion, uncertainty?
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Risk of Spam Act prosecution
Liability v. risk of prosecution?
 Serious Offences
 Huge Penalties
 But ACA policy, resources
 Intention needed for offence?
 Practical risk of single message Spam
 Difficult to frame legal advice

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Problems of email at work
Complex Spam liability rules
 Other legal issues
 Viruses and security
 Pornography etc.
 Temptation to track everything?
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NSW workplace surveillance law
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Announced 30 March 2004
Workplace surveillance already regulated
• ‘Strict laws & protocols to restrict employer snooping on
workers phone’
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Workplace Video Surveillance Act
To be amended to cover email, other tech.
Prohibits email surveillance
• Without court order or consent
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Challenges IT control, Spam monitoring
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Issues
Industrial opposition to monitoring
 Balance of interests
 ‘Mutually respectable workplace’
 Privacy rights protected in a new
sphere
 See Privacy Acts Federal and State
 Focus on consent
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Bark worse than bite?
Reduce secret surveillance
 May just result in forced consent
 Potential to be stricter - details!
 Any practical effect?
 Precedent for other safeguards?
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Surveillance stops Spam?
Divergence of views
 IT solution v people solution
 What is the problem?
 After the fact – too late
 Not reveal the basis of exemptions
 Inadvertent breaches of the Act
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A better solution?
Trust and respect
 Training and peer support
 Sensible policies & goodwill
 Cooperation with ACMA, ACCC, TIO
 Complaint-based approach
 Review marketing and PR
 Seeking consent is good business
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Spam - Conclusion
Spam law unintended consequences
 Surveillance culture
 New awareness of privacy
 NSW anti-email surveillance law
 Effective risk management
 Low risk of prosecution
 Better solution
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