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:

1. 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 publications.
   
2. 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.
   
3. 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.
   
4. 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 research.
   
5. 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 Service Providers.
   
6. 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.
   
7. 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 group ?
   
8. 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.
   
9. 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.
   
10. 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.
    
11. 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 would lie.
    

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.

Yours sincerely

Alex Byrne                           Diane Costello                       
President                            Executive Officer                    
Council of Australian University     Council of Australian University     
Librarians                           Librarians                           
c/- Northern Territory University    LPO Box 169 (Licensed Post Office)   
PO Box 1246                          Australian National University       
CASUARINA  NT  0812                  CANBERRA   ACT   2601                
AUSTRALIA                            AUSTRALIA                            
Tel:      +61 8 89466192             Tel:     +61 6 249 2990              
Fax:     +61 8 89451317              Fax:    +61 6 248 8571               
Email:  alex.byrne@ntu.edu.au        Email:  diane.costello@anu.edu.au            

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