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Monday, 22 June 2009
Page: 3961


Senator Ludlam asked the Minister for Broadband, Communications and the Digital Economy, upon notice, on 5 May 2009:

(1)   With reference to the hearings of the Environment, Communications and the Arts Committee additional estimates of 23 February 2009, in which an officer of the Australian Communications and Media Authority (ACMA) stated ‘As you may recall, Senator, every six months those overview profiles of the number of investigations that we have done and the breakdown—whether it was RC [Refused Classification], child pornography, X and so on—are tabled in parliament. If we look at one of those six-month reports, there is a lot of information on what we do regarding our investigations there’ (Committee Hansard, 23 February 2009, ECA 108): was the officer referring to the Co-regulatory Scheme for Internet Content Regulation reports; if so, have those reports been prepared and tabled since the report for the period July to December 2005; if so, where can copies of these reports, for the 3 years since 2005, be obtained.

(2)   If the answer to (1) above is no:

(a)   what are the six-monthly reports to which the officer referred to; and

(b)   where can copies of these reports be obtained.

(3)   Does the ACMA charge a fee to filter suppliers for the ACMA’s blacklist and/or updates to the blacklist; if so:

(a)   is the fee $15 000 (as reported by a filter supplier on 26 March 2009 at http://www.crikey.com.au); if not, how much is the fee;

(b)   for what period of time does the fee cover (for example, annually, half-yearly, monthly, etc); and

(c)   when did the ACMA commence charging a fee.

(4)   Does the ACMA charge a fee, or does it intend to do so in future, for the supply of its blacklist to Internet Service Providers (ISPs) who provide server-level filtering; if so, how much.

(5)   What procedures or systems does the ACMA have in place to ensure that filter suppliers promptly add and delete Uniform Resource Locators (URLs) on notification of updates by the ACMA, for example, does the ACMA undertake audits of filter suppliers’ copies of the ACMA’s blacklist; if so, how often.

(6)   In regard to media reports in March 2009 that the ACMA stated that a page containing photographs by Mr Bill Henson had been incorrectly added to the ACMA’s blacklist as a result of a ‘caching error’: (a) what is a ‘caching error’; and (b) can the ACMA prevent a ‘caching error’ happening in future; if so, how.

(7)   When the ACMA adds to its blacklist the URL of a hacked page on an overseas-hosted web site, that is operated/maintained by an Australian resident or Australian-based business, does the ACMA notify the Australian resident/business of the existence of the prohibited content so that it may promptly delete such content and have its page promptly removed from the blacklist; if not, why not.

(8)   How does the ACMA determine whether web page content has ‘an Australian connection’, for example, does the ACMA base this determination on the geographical location of the business/person to whom the IP [Internet Provider] address of the web site’s domain has been allocated, the geographical location of the business/person identified as the registrant the administrative or the technical contact of the domain in the ‘whois’ information.

(9)   In regard to the ACMA’s blacklist:

(a)   how many URLs on the blacklist are main domain addresses, for example, http://www.example.com (not the address of a sub-page on a web site);

(b)   when the ACMA notifies filter suppliers of a domain address, are filter suppliers required to block only that particular page (that is, the site’s ‘home’ page), or all pages on the domain; and

(c)   if filter suppliers are required to block all pages on a domain, by what means does the ACMA determine that there is a substantial likelihood that all pages on the domain are, if classified, potential/prohibited content.

(10)   In regard to the ACMA online content statistics for the month of December 2008, ACMAsphere No. 38, states that 237 overseas-hosted items were actioned and 22 items were ‘R18+ Language’, while the ACMA’s Internet statistics web page states that 253 overseas-hosted items were actioned, no items were ‘R18+ Language’ and 22 items were ‘X 18+ Actual sexual activity’ and given that there are also other discrepancies between the two sets of reported statistics:

(a)   which statistics are accurate; and

(b)   what caused the discrepancies.

(11)   For each of the following periods: 20 January to 31 June 2008 and 1 July 2008 to date:

(a)   how many items of Internet content did the ACMA submit to the Classification Board for the purpose of complying with clause 116 of Schedule 7 (samples of content to be submitted for classification) of the Broadcasting Services Act 1992; and

(b)   how many of these items were content that did not have an ‘Australian connection’.

(12)   In regard to ACMA Internet content assessors:

(a)   why are the names, dates of appointment and short biographies of the assessors not made publicly available (as has long been the case in relation to members of the Classification Board and Classification Review Board);

(b)   are content assessors, like members of the classification boards, appointed by the Governor-General; if not, who appoints them;

(c)   in selecting and appointing content assessors, are there requirement that they have the capacity to assess, identify and represent community standards;

(d)   are content assessors initially appointed for a fixed term of service; if so, what is that period of time;

(e)   is there a statutory or other limit on the maximum term of service for a content assessor; and if so, what is that period of time;

(f)   for each content assessor, what was the date of their initial appointment;

(g)   how many content assessors are:

(i)   former full-time or part-time members of the Classification Board,

(ii)   former temporary/casual members of the Classification Board,

(iii)   current temporary/casual members of the Classification Board,

(iv)   former members of the Classification Review Board, and

(v)   former employees, in any role, of the former Office of Film and Literature Classification; and

(h)   for each content assessor referred to in (12)(g) above, what is each of their total period of service in the abovementioned former roles.

(13)   Do ACMA content assessors undergo regular training by the Classification Board to help ensure consistency of decisions; if so, how often does such training take place.

(14)   How many content assessors view and assess an item of Internet content prior to an ACMA determination that it is ‘potential prohibited content’ because there is a substantial likelihood that it would be classified by the Classification Board as:

(a)   RC, ‘RC-Child Depiction’;

(b)   RC, for any other reason;

(c)   X18+;

(d)   R18+; and

(e)   MA15+.

(15)   In regard to the page on an anti-abortion web site that was determined by the ACMA to be ‘RC-Violence’ in January 2009 and the criteria for RC in the national classification code:

(a)   was the content determined to be prohibited/potential prohibited content under clause 1(a) of the criteria for RC (depictions of violence that offend against the standards of reasonable adults) or under clause 1(c) (promote, incite or instruct in matters of crime or violence); and

(b)   how many content assessors participated in making a decision that there was a substantial likelihood that the content would be RC if classified.

(16)   In regard to the ACMA’s ‘Restricted Access System Declaration 2007’, the explanatory statement to the declaration and the ACMA’s web page titled ‘new restricted access arrangements’ state that the requirements in the declaration apply only to content that has an ‘Australian connection’ (is hosted in Australia or provided from Australia):

(a)   what procedures/systems are available to providers of overseas-hosted content to enable them to ensure that content they provide that is, or would be classified R18+ or (commercial) MA15+, is not added to the ACMA’s blacklist; and

(b)   if these procedures/systems comply with the ‘Restricted Access System Declaration 2007’, how can the ACMA, and Australian Internet users, know that an overseas content provider is complying with the Australian National Privacy Principles under the Privacy Act 1988, as required by the Restricted Access System Declaration 2007, in relation to use/disclosure etc of proof of age documentation/information they acquire and are required to keep for 2 years.


Senator Conroy (Minister for Broadband, Communications and the Digital Economy) —The answer to the honourable senator’s question is as follows:

(1)   No the reports have not been tabled since December 2005. Since then the key information which would have otherwise have been provided by the six monthly reports on the operation of the online content co-regulatory scheme is incorporated in the Australian Communications and Media Authority's (ACMA) annual reports including its detailed reporting on compliance investigations. Further information is also provided through the ACMA website which contains monthly summaries of online content complaints. The annual reports are tabled.

(2) (a)   In September 1999, the Senate passed motion no. 299 which called on the Government to table six monthly reports on the effectiveness and consequences of the Broadcasting Services Amendment (Online Services) Act 1999 which established the Online Content Scheme set out in Schedule 5 to the BSA.

(b)   Refer to response to question 1.

(3)   In accordance with the co-regulatory scheme for online content set out under Schedules 5 and 7 of the BSA and the Internet Industry Codes of Practice developed by the Internet Industry Association (IIA), ACMA notifies the internet addresses of overseas-hosted prohibited and potential prohibited Internet content to the providers of filter products tested and accredited by the IIA, under the IIA’s Family Friendly Filter program.         The ACMA does not charge a fee for the provision of this information. ACMA has also advised that the IIA charges filter providers to have their products tested and accredited under the Family Friendly Filter program.

(4)   The ACMA does not charge a fee for the provision of the list and it does not have an intention to do so.

(5)   In accordance with the co-regulatory scheme for online content set out under Schedules 5 and 7 of the BSA and the Internet Industry Codes of Practice developed by the Internet Industry Association (IIA), ACMA notifies the internet addresses of overseas-hosted prohibited and potential prohibited Internet content to the providers of filter products. These filters are tested and accredited by the IIA, under the IIA’s Family Friendly Filter program. ACMA regularly notifies IIA accredited filter providers of incremental updates to the list of overseas-hosted prohibited and potential prohibited Internet content. ACMA also periodically reviews and updates the entire list of overseas-hosted prohibited and potential prohibited Internet content and provides it to IIA accredited filter providers.         Under the Internet Industry Codes of Practice, the suppliers of Family Friendly Filter products submit their filter products to the IIA for re-testing at least once each year. This allows the IIA to determine the product’s continued compliance with the requirements of the Family Friendly Filter program, including that accredited filter providers are correctly implementing ACMA’s URL notifications.         I understand that the IIA will shortly notify all Family Friendly Filter providers in regard to the forthcoming round of re-testing of their products.

(6)   I understand a technical fault was identified in the database used to store information relating to ACMA’s online content investigations. This resulted in a piece of information being transferred automatically and incorrectly from one database record to another database record. Following identification of the fault, I am advised that all URL entries on the list were checked and it was determined that the error was confined to the one record concerned. A solution that includes upgrade and maintenance of the database has been implemented to ensure that such errors do not occur in the future.

(7)   Under the BSA, the ACMA is not required to identify a web site owner or notify it that a page from its website has been added to the list of overseas-hosted prohibited and potential prohibited Internet content. I understand that there have been instances where criminals have exploited vulnerabilities existing at otherwise legitimate websites to publish child sexual abuse material, or facilitate its distribution. Where ACMA identifies such material as part of an investigation, it is required to notify that material to police and refrain from taking any steps that might interfere with or prejudice investigations conducted by police. This includes liaison with website owners. Law enforcement agencies may allow the material to remain available as part of their investigation, for the purpose of collecting evidence. ACMA is not normally privy to the details involved in police investigations of such material, including whether police have contacted website owners or whether police investigations have concluded.

(8)   Content provided by a content service provider will have an Australian connection subject to Clause 3 of Schedule 7 of the BSA. ACMA’s practice is to determine the location of content hosted by a hosting service provider by using information in publicly available internet name and number databases and standard network tools. Information extracted from these resources indicates the location of the computer hosting the content.

(9)  

(a)   There are approximately 20 URLs currently on the list where the web page that has been the subject of a complaint has been added to the list in the format http://www.example.com/

(b)   In accordance with Schedule 5 of the BSA and the Internet Industry Codes of Practice, ACMA notifies the internet addresses of overseas hosted prohibited and potential prohibited Internet content to filter software providers accredited by the Internet Industry Association. Filter providers are required to block only the content at the URLs specified in ACMA’s notifications and not every page within domains.         The ACMA takes action in relation to content at specified web pages or particular content within web pages and not entire websites.

(c)   Filter providers are not required to block every page within domains

(10)  

   (a)   The statistics relating to complaints about online content for December 2008 were published accurately on ACMA’s website. That is, 253 overseas-hosted items were actioned.

   (b)   Issue 38 (February 2009) of ACMAsphere contained numerical errors in the ‘Items Actioned’ table. This error occurred during compilation of the publication. ACMA will publish a correction note in relation to this error.

(11)  

   (a)   For the period 20 January to 30 June 2008, ACMA referred 13 items of online content for classification by the Classification Board. For the period 1 July 2008 to 30 April 2009, ACMA referred 56 items of online content for classification by the Classification Board.

   (b)   For the period 20 January to 30 June 2008, 10 of the 13 items referred did not have an Australian connection. For the period 1 July 2008 to 30 April 2009, 47 of the 56 items referred did not have an Australian connection.

(12)  

   (a)   Classification Board and Classification Review Board members are appointed under Classification (Publications, Films and Computer Games) Act 1995 (the CA). ACMA staff are public servants employed under the Public Service Act 1999 (the PSA). There is no requirement under the PSA to make details such as biographies of public service staff publically available.

   (b)   ACMA staff are not appointed by the Governor-General. ACMA staff are employed under the PSA.

   (c)   ACMA’s recruitment and selection processes must be consistent with the Australian Public Service Values as set out in section 10(1) of the PSA. Employment decisions are based on merit. The selection criteria for any position that involves the investigation of online content addresses both the skill set and personal qualities required of the successful applicant. Consideration, during recruitment, is also given to an applicant’s ability to deal with material that is often confronting and distressing.

   (d)   ACMA staff are ongoing public servants, who are not employed on fixed terms.

   (e)   There are no statutory or other limits on the maximum term of service for public servants.

   (f)    ACMA staff are not statutory appointees.

   (g)   Of the ACMA staff that have Classification Board experience, three were former full time members, one a former temporary member and one was a former employee of the Office of Film and Literature Classification. All ACMA staff involved in content assessment decisions have regular formal training provided by the Classification Board.

   (h)   ACMA employs a number of former Classification Board members who have a combined experience of close to 20 years at the Classification Board in applying the National Classification Scheme across a range of media.

(13)   ACMA’s content assessors undergo regular, formal training provided by the Classification Board. The classification training sessions routinely consist of analysis of classification decisions made by the Classification Board regarding content made available across both new media platforms (Internet and mobile) as well as more traditional media platforms (television) along with critical analysis of Classification Board decisions in respect of difficult classification matters. These training sessions occur approximately every six months. The most recent sessions occurred in April 2009, November 2008, July 2008 and November 2007.

(14)   A minimum of two content assessors view and assess an item of Internet content prior to making a determination that it is potential prohibited content.

(15)  

   (a)   As part of its investigation of the complaint, ACMA determined that if the content were to be classified by the Classification Board, there was a substantial likelihood that the content would be prohibited content. The content was therefore potential prohibited content in accordance with clause 21 of Schedule 7 of the BSA.

   To inform its assessment of the material, ACMA considered a recent decision (April 2008) of the Classification Board made in respect of a similar item of online content. The Classification Board report classified that content RC in accordance with 1(a) of the Films Table of the National Classification Code. This precedent was used to guide ACMA’s assessment of the likely classification of the content.

   ACMA subsequently referred the material to the Classification Board for classification. The Classification Board classified the material R18+. Under Schedule 7 to the BSA, R18+ content is prohibited content if it is not subject to a restricted access system. The content classified R18+ was not subject to a restricted access system and was therefore deemed by ACMA to be prohibited content.

   (b)   Two content assessors were involved in making the decision that the content concerned was potential prohibited content.

(16)   Neither the Explanatory Statement to the Restricted Access Systems Declaration 2007 (RAS Declaration) nor the ACMA webpage titled ‘New restricted access arrangements’ state that the requirements in the RAS Declaration apply only to content that has an Australian connection.

(a)   The RAS Declaration and the Explanatory Statement to the Declaration are made available to the public on the ACMA website and the Comlaw website maintained by the Attorney-General's Department. The providers of content services are able to consult these materials to ensure that if they choose to implement an access-control system, it will comply with the requirements of the RAS Declaration.                         ACMA’s role under Schedule 7 of the BSA involves the investigation of complaints received from the public about online content that may be prohibited or potential prohibited content. ACMA is able to inform industry participants about regulatory arrangements that may apply to their services. However, it is incumbent upon the providers of content services to ensure they comply with the regulatory environment and obtain independent legal advice, regardless of whether they are based in Australia or overseas, in relation to their compliance with the legislative framework in the territories in which they provide content services.

(b)   If an assessment as to whether an access-control system is a restricted access system requires ACMA to consider the record keeping practices of a content service provider, ACMA would contact the provider concerned to gather the information required.