SYDNEY, Australia -- A proposed state law here would make it illegal to upload online content unsuitable for minors without an adult verification system in place.
Officials in New South Wales say the law will tighten the screws on pedophiles and pornographers. But opponents say it will criminalize the unwitting and open up the scope for police abuse. Middle-of-the-roaders say a lot will depend upon how the law is implemented.
Under the proposed law, it would be illegal to upload online material that would be rated R (Restricted to adults 18 and over -- usually due to thematic material), X (Sexually Explicit -- for adults 18 and over) or RC (Refused Classification -- usually meaning very violent) by Australia's Office of Film and Literature Classification (OFLC) without an adult verification method on the site where it would be posted.
The OFLC is a government agency that rates books, movies and magazines in Australia.
"We are unaware of any other Western democracy that has put laws remotely like this one in place," said Irene Graham, executive director of Electronic Frontiers Australia (EFA). "Its closest equivalent would be the U.S. CDA (Communications Decency Act), which was overturned by the U.S. Supreme Court."
Robert Debus, attorney general of New South Wales -- Australia's most populous state -- said the measure would be just another step toward enabling police and regulatory authorities to combat invasive Internet pornography.
In a statement to state parliament late last month outlining the bill, he doubled up on his metaphors to describe its benefits.
"This new legislation gives police another string to their bow," Debus said. "We will create another brick in the wall against online sex offenders."
Less sure of the proposed law's benefits, but also less convinced of its inherent evils, is Peter Coroneos, chief executive of Australia's Internet Industry Association (IIA). Coroneos agrees action is needed to protect children against harmful online material, but he also said consenting adults shouldn't be hindered from using the Internet for personal fulfillment.
"This legislation seems very broad," Coroneos said. "But it remains a question of how the New South Wales police enforce it."
The proposed state law is aimed at complementing a national Australian law that went into effect in 2001. Under the national law, the Australian Broadcasting Authority (ABA) -- which regulates the Internet here -- can order material removed from an Australian Internet server if the OFLC rates its content either X or RC. Material rated R would either need to be taken down or offered behind an adult verification mechanism.
Under the national scheme, the ABA responds only to public complaints, rates Internet content before taking enforcement action and provides a grace period -- commonly one business day -- for content to comply with a "take-down" order before pursuing legal action.
When the national law was considered by the Australian Parliament in 1999, both the EFA and IIA opposed it. However, both the EFA and the IIA have acknowledged the effect of the national law has been surprisingly benign, serving mostly to send sexually explicit content providers offshore, where the ABA has no jurisdiction.
However, architects of the national law, which focused on carriers and hosts of content such as ISPs, always believed it would be supplemented by Australian state laws targeting creators of content with legal penalties.
Therefore, under the proposed state law, individuals in New South Wales who "make available" via an online service material that would be rated X or RC by the OFLC without an adult verification mechanism, would face a fine of US$5,700, while corporations could face a fine of $14,000.
Smaller fines would be levied upon those placing material that would be rated R without an adult verification method.
Among other things, state police could initiate a prosecution based upon their initial guess as to how material might by rated by the OFLC, putting the onus on the content provider to prove police wrong, the EFA's Graham said. By contrast, under existing state laws for offline films and books, material must be rated before prosecution can begin.
"The way the new legislation is written now, it is ideal for victimizing people with unpopular political opinions because it will allow police to arrest and charge people, and only then have content classified," Graham said, noting it provides a handy tool for political harassment.
For instance, the "make available" provisions of the law would criminalize content providers in Australia uploading content to overseas websites where such material might be entirely legal.
"We're talking about any material considered unsuitable for minors, which the OFLC says could include detailed discussions of topics such as marital problems, suicide and drug misuse," she said.
"At some point, you'd have to start asking: At what point does a conversation (say in a chat room or mailing list) become so detailed that if a minor reads it, it could be disturbing to them, meriting an 'R' rating" and leaving the chat room participant exposed for uploading content where an adult verification isn't in place?"
The outcome could be to squelch this kind of discourse altogether, she said.
"It's not just about pedophilia and people in raincoats in playgrounds, it goes way beyond that," Ms. Graham said. "We say this law is too broad, and too vague."
Meanwhile, a spokeswoman for Debus, the New South Wales attorney general, acknowledges that under the law police could begin a prosecution without classifying Internet content first, but that if a content provider later proves in court the content was not restricted, he or she can apply to the court to be awarded costs.
"The risk of being ordered to pay the defendant's costs may operate to some extent as a deterrent to the bringing of prosecutions without evidence," the spokeswoman said.
In addition, the spokeswoman said e-mail and chat rooms would be exempt from the law, because material is not generally widely accessible, nor stored for later retrieval. And while newsgroups that archived contributions would be covered by the law, the spokeswoman noted that under the OFLC ratings system, many challenging adult themes are permissible under the OFLC's M (recommended for those 15 and older) and MA ratings (kids under 15 must be accompanied by parent or guardian).
In the past, these have included abortion, incest, the death penalty, domestic violence and gang violence.
However, Graham says controversy over particular ratings has long dogged the system, making it hard for members of the public to gauge in advance how a piece of material might be rated. This is particularly true because the OFLC does not have a specific regime in place for rating Internet content.
Therefore, Internet content submitted to the OFLC on a floppy disk or other electronic medium would be classified as film, while content printed out on paper would be classified as a book or magazines -- and the two ratings systems differ.
She also said there currently is no technical way to prove an adult verification mechanism was in place on a particular website at a given point in time. That means a prosecution undertaken on the basis that an adult verification mechanism wasn't in place could degenerate into a battle of competing assertions.
The proposed law is expected to come before the New South Wales parliament, possibly for final passage, in coming weeks. Similar legislation also is pending in South Australia.
