What Conroy Meant by Voluntarily Mandatory

Yesterday, Senator Conroy said that filtering could be implemented with a voluntary industry code. Here’s what he (probably) meant.

Confused

Australian IT ran a story yesterday suggesting that Senator Stephen Conroy is backing away from the ‘mandatory’ in his mandatory Internet filtering plan. The story refers to statements that Senator Conroy made in a Senates Estimates hearing suggesting that filtering could be implemented with a voluntary industry code.

To explain what he (probably) meant, I have set out how filtering is governed by a voluntary industry code today, how this can be changed to make filtering mandatory, and what exactly is ‘voluntary’ about this industry code.

Current System

Schedule 5 of the Broadcasting Services Act 1992 (Cth), which is presently in force and has been for years, already provides that ISPs must filter ‘prohibited content’ and ‘potential prohibited content’ hosted overseas notified to them by ACMA.

However, that filtering is subject to any industry code (a code made by a body or association that represents ISPs) that sets out a notification scheme for such content and procedures that ISPs will follow when notified of such content.

In other words, the Act provides that ACMA can direct ISPs to filter out ‘prohibited content’ and ‘potential prohibited content’ hosted overseas unless ISPs have made a code that says that they will deal with the content in some other way.

The Internet Industry Association (IIA) has made such a code. The most recent version is the Internet Industry Codes of Practice 2005, and it’s registered by ACMA here. The Code provides that ACMA will notify the content to makers of IIA Family Friendly Filters, and that ISPs will distribute those filters to customers who want them at no more than cost. Effectively, this creates an opt-in filtering system.

What Senator Conroy was saying was that there are two ways to introduce mandatory Internet filtering: change the legislation so that ISPs have to filter despite any code or change the code to require mandatory filtering.

Voluntary Codes are Mandatory

But if the industry code is voluntary, how can it provide for mandatory filtering? The answer is that compliance with a registered industry code is not really voluntary.

The code is voluntary in that the IIA (or some other body or association that represents ISPs) would have to voluntarily make it (as opposed to legislation which is simply imposed by Parliament). However, once it’s made and registered by ACMA, ACMA can direct an ISP to comply with it.

While failure to comply with the code is not itself an offence, failure to comply with a direction to comply with the code is. The penalty is $5,500 for each day of contravention for an individual and $27,500 for each day of contravention for a body corporate.

Effectively, compliance with the code is mandatory.

In Summary

In this way, even though the code would be voluntarily made, ISPs could be required to comply with it, making filtering effectively mandatory. And even if compliance with the code were truly voluntary, filtering could still be mandatory from the perspective of the end user if enough ISPs chose to comply with it.

None of this is to suggest that the IIA is likely to change the code to mandate filtering. Indeed, given the opposition to filtering, it’s unlikely that ISPs would volunteer to implement filtering on a mandatory basis (especially with the overbroad definition of ‘prohibited content’ in the current Act).

Unfortunately, though, it’s a little too early to celebrate victory over mandatory filtering.

While I have attempted to write this post without bias, I am opposed to any plan for mandatory filtering of online content.
This post is not intended as legal advice. I make no representations whatsoever as to its quality, and will not be liable for any loss, injury, or damage howsoever resulting from it. Seek independent legal advice.

Tags: ACMA, Broadcasting Services Act 1992 (Cth), censorship, clean feed