Cyberspace Law materials – Content Regulation
1.	Introduction
2.	Content Regulation - International
2.1.	United States
2.1.1.	Communications Decency Act 1996 (CDA)
2.1.2.	Child Online Protection Act (COPA)
2.1.3.	More legislation attempts
2.2.	Asia
2.2.1.	Hong Kong
2.2.2.	Japan
2.2.3.	Singapore
2.2.4.	South Korea
2.2.5.	China
3.	Content Regulation in Australia
3.1.1.	Commonwealth Content Regulation
3.1.2.	State Content Regulation
3.2.	Jurisdiction example: online gambling and Betfair
4.	Commonwealth Regulation
4.1.	The Online Content Co-Regulatory Scheme
4.2.	Elements of the Commonwealth Scheme
4.3.	Codes of Conduct
4.4.	The ACMA Complaints Scheme
4.4.1.	ACMA action where material is hosted in Australia
4.4.2.	ACMA action where material is hosted outside Australia
4.4.3.	Prohibited Content – different definitions on- and off- shore, or on phone
4.5.	Other ISP obligations
4.5.1.	Reporting child pornography and abuse
4.6.	Restricted Access System (RAS)
4.7.	Enforcement
4.8.	Criticisms of the Commonwealth Scheme
4.9.	Further Proposals for ISP level filtering in Australia
5.	State and Territory-based Content Regulation
5.1.	State and Territory censorship laws affecting online material
5.2.	ISP and ICH Exemptions – BSA Schedule 5
6.	Technology-specific content regulation
6.1.	Mobile phones
6.2.	National ISP and backbone filtering schemes
6.2.1.	China
6.2.2.	Australian proposals for ISP level filtering?

1.	Introduction
The Internet is renowned for its global nature, freedom of expression and anonymity. People are able to freely publish material without censorship and are able to reach a global audience. While it is considered a haven for free speech (especially in its early years), what happens when Internet content is considered offensive or is illegal? 
The inherent nature if the Internet makes it difficult to prevent people from publishing and viewing such explicit content. Another problem is that some material (pornography being a primary example), may be illegal to be viewed by children but can be legally viewed by adults. How then do regulators ensure that children are prevented from viewing such sites while not interfering with the rights of adults? These are all issues that need to be addressed when regulating Internet content.  
We first look at some international approaches to this problem, then examine the hybrid commonwealth-state-industry system established in Australia. 
The international approaches are of course dominated by US thinking and the impact of its First Amendment to the US Constitution, not matched in most other countries; while the jurisdictional complications in Australia deserve attention, especially in the light of the 2008 Betfair case which threatens state-based online content controls.
2.	Content Regulation - International
2.1.	United States
Content regulation in the United States is somewhat limited due to the constitutional protection of free speech under the First Amendment which states that “Congress shall make no law… prohibiting the free exercise… or abridging the freedom of speech”. The First Amendment has been regularly invoked to invalidate statutes aimed at regulating Internet content. 
2.1.1.	Communications Decency Act 1996 (CDA) 
The CDA was enacted to counter growing fears that pornography on the Internet could easily be accessed and viewed by children (http://www.epic.org/free_speech/CDA/). This ‘cyberporn panic’ was created after Times magazine published ‘On a screen near you: Cyberporn’ (http://xenia.media.mit.edu/~rhodes/Cyberporn/time.html) which led readers to believe that the Internet was rife with pornography. However, the article was based on a Carnegie Mellon University study ‘Marketing Pornography on the Information Superhighway’ which over-estimated the amount of pornography on the Internet, and has since been regarded in academic circles as being fundamentally flawed.
The CDA was met by much opposition by groups advocating the protection of free speech, notably the American Civil Liberties Union (ACLU) (www.aclu.org) and the Citizens Internet Empowerment Coalition (CIEC) (www.ciec.org). Both groups bought separate actions challenging the constitutionality of the Act which were later joined. The case was heard in the first instance in the Philadelphia District Court (American Civil Liberties Union v Reno 929 F Supp 824 (1996)) with the plaintiffs’ case opposing two key prohibitions within the Act: 
•	s 233 (a) which makes it illegal to knowingly send a minor material which is legally ‘obscene’ or ‘indecent’; and 
•	s 233 (d) which prohibits the knowing sending or displaying of patently offensive messages, according to community standards in a manner that is available to a person under 18 years. 
Breach of either section was to result in a maximum fine of $100 000 and/or a maximum term of imprisonment of 2 years.
The District Court agreed with the ACLU and other plaintiffs, “finding that the CDA was as a content-based restriction of speech in a unique medium deserving full First Amendment protection”. The ACLU’s request for an injunction against the enforcement of the Act was granted.
The Attorney General (Reno) appealed to the Supreme Court (117 S Ct 2329 (1997) (http://supct.law.cornell.edu/supct/html/96-511.ZO.html)) which upheld the District Court decision in a 7:2 majority. The specific provisions were found to be unconstitutional as they breached the First Amendment, and so they were struck out. Justice Stevens noted that there is “government interest in protecting children from harmful materials…but that interest does not justify the broad suppression of speech addressed to adults.” 
The Supreme Court also took issue with the ambiguities of the language used in the CDA. Each of the two parts of the CDA employed different language. The first used "indecent", while the second based the restriction on "community standards". There was no definition of either of the two standards used, which created confusion in interpretation, and was especially troublesome when the possibility of a criminal conviction and imprisonment was at stake. Apart from being unconstitutional, the Supreme Court found the CDA to be both overbroad and vague; not ideal qualities in a statute that imposes criminal sanctions. The Court also noted there are other ways to protect children from viewing explicit content than government intervention, and that perhaps the responsibility of monitoring the content that children view should fall on the individual, for example, through the use of filtering software or other methods of parental control. 
2.1.2.	Child Online Protection Act (COPA) 
Following the failure of the CDA, in 1998 US Congress passed the Child Online Protection Act (COPA) (http://www.epic.org/free_speech/censorship/copa.html), commonly referred to as ‘CDA II’, in a second attempt at online content regulation. COPA makes it unlawful to use the Internet to make "any communication for commercial purposes available to any minor and that includes any material that is harmful to minors", unless good faith efforts are made to prevent children from obtaining such material (s 231(a)(1)). Violations of COPA could result in fines of up to $50,000 and/or imprisonment of up to six months. One of the main differences between the CDA and COPA is the fact that COPA attempts only to apply to commercial web sites, supposedly removing the unbearable burden of age verification on non-commercial web sites (http://www.austlii.edu.au/au/journals/PLPR/1999/52.html).
Like its predecessor, there was a class action suit where the plaintiffs (including the ACLU) sought an injunction against the enforcement of the Act on the basis of unconstitutionality (ACLU v Reno II 217 F 3d 162 (2000) http://www.epic.org/free_speech/copa/3d_cir_opinion.html, not that this case later became ACLU v Ashcroft when John Ashcroft became the new Attorney-General). In June 2000 the US Court of Appeal for the Third Circuit in Philadelphia struck out the legislation, holding that the COPA was unconstitutional: 
“…because the standard by which COPA gauges whether material is ‘harmful to minors’ is based on identifying ‘contemporary community standards’, the inability of the Web publishers to restrict access to their website based on the geographic locale of the site visitor [ because community standards are different in different geographic locations]… imposes an impermissible burden on constitutionally protected First Amendment speech.”
As with the CDA, the ACLU v Ashcroft dispute over the constitutionality of COPA has a long procedural history. On March 6 2003 the Third Circuit Court of Appeals has (for the second time) struck down the COPA as being unconstitutional (http://www.mediacoalition.org/legal/copa/index.htm). The Court has found the Act is a violation of the First amendment as it improperly restricts access to a substantial amount of online speech that is lawful for adults.
Both the 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).
2.1.3.	More legislation attempts
The findings of the United States Supreme Court with respect to the CDA and COPA have not deterred state legislatures from passing similar legislation. The state of Utah subsequently passed legislation in 2005, Utah House Bill 260 ‘Amendments relating to pornographic and harmful materials’. This subjected ISPs to civil liability if, at the request of a consumer, they failed to filter internet content to prevent the transmission of material harmful to minors. The legislation also requires that content providers generating or hosting content in Utah restrict access to material harmful to minors. 
It seems to have been narrow enough to escape constitutional challenge, though it was later suspended, in part, due to litigation.
House Bill 260 proposed: 
"criminal liability for certain distributions of material harmful to minors" as well as other protections. Certain portions of the legislation, however, are related to a June 2005 lawsuit The King's English vs. Shurtleff, in which a group of Utah bookstores, Web sites, Internet service providers, and others argued for the constitutional rights of children's access to the Internet. The outcome of the lawsuit is still pending [as of early 2007].
The state court ordered that the disputed portions of the law be suspended while the case proceeded. In response, state lawmakers eliminated rules requiring adult content providers to register with the state and a mandate forcing Internet service providers to block adult content without charging consumers for it. Some disputed rules remain, despite amendments approved this week.
The changes also provide relief to Internet service providers doing business in Utah who would have been held responsible for distributing content deemed harmful. However, new language in the bill will hold Utah ISPs and hosting companies accountable for distributing the material or receiving money for transmission only if they knowingly do so. 
(Information Week, 21  March 2007 http://www.informationweek.com/news/security/showArticle.jhtml?articleID=198100527)
However, illustrating the variation across the US states, an attempt in California in 2001 to sue the municipal owners of a library failed because “a city is not subject to suit for damages or an injunction for offering unrestricted access to the Internet through computers at a public library”: Kathleen v Livermore <http://pub.bna.com/eclr/a086349.htm>,  summarised at   <http://www.techlawjournal.com/courts/kathleenr/Default.htm>
Although parts of CDA 1996 were ruled unconstitutional, other parts survived, providing crucial protection for ISPs. A district court dismissed a complaint against an ISP for hosting secret photos of sporting teams taken without their permission by a company called Franco, based on the Communications Decency Act of 1996.
 According to the Act, no provider of an interactive computer service can be treated as the publisher or speaker of any information provided by another content provider. Thus, the Act prevents ISPs from being held liable for such content. The plaintiffs appealed the decision. 

The U.S. Court of Appeals for the Seventh Circuit upheld the lower court's decision. … The judges compared GTE's role to that of the telephone company, whose wires were used to place orders with Franco, the lessor of Franco's office space, or the shipper of the tapes to customers. "Landlord, phone company, delivery service, and Web host all could learn, at some cost, what Franco was doing with the services and who was potentially injured as a result; but state law does not require these providers to learn, or to act as Good Samaritans if they do."
John Doe v. GTE Corporation and Genuity Inc., U.S. Court of Appeals for the Seventh Circuit, No. 02-4323, 2003, discussed at http://onlineliabilityblog.com/doe-v-gte-corporation/
Some useful links about American content regulation include:
•	‘Communications Decency Act’ – http://www.epic.org/cda. This site includes an outline of the case history surrounding the Act as well as relevant links to both pages related to the case history as well as other related pages.
•	‘The Legal Challenge to the Child Online Protection Act’ –http://www.epic.org/free_speech/copa. The ‘COPA version’ of the above site, includes relevant links and outline of the procedural history involving the ACLU v Ashcroft disputes. 
•	 ‘Triple X, Internet Content Regulation and the ICANN Regime’  – http://www.internetgovernance.org/pdf/new-xxx-contract.pdf. Discusses the role of ICANN in the debate about whether to create a new top level domain of .XXX for adult content, and governance issues and assumption in relation to regulation of content.
(Milton Mueller, Internet Governance Project,  School of Information Studies, Syracuse University, January 2007) 
2.2.	Asia
The basic structure of all Asian regimes for content regulation is that they require action by a carrier if it becomes aware that prohibited material is being carried. In some cases this will be through complaints from consumers, in others it will be as a result of government or agency notices. 
There are no regimes which require carriers to monitor all traffic. In some jurisdictions licenses may be linked to compliance with local content regulation.
However, some Asian jurisdictions are discussing options for preventing access by local residents to offshore Internet gambling services. Governments in Asia take this issue more seriously than general content regulation (e.g. adult material) because of the serious revenue implications involved. More heavy handed regulation of Internet services may result from this debate.
2.2.1.	Hong Kong
Online content is regulated generally by the Broadcasting Ordinance though the focus of this instrument is on other broadcasting media (e.g television) and more specifically though the Hong Kong Internet Service Providers Association (HKISPA) Code of Practice (http://www.hkispa.org.hk/cop-970410.htm). This is a general code of practice which can be voluntarily adopted by members. They have also issued a Practice Statement on Regulation of Obscene and Indecent Material (http://www.hkispa.org.hk/Obscene_e.htm). This Practice Statement contains the most detailed content regulation requirements in Hong Kong. It requires members to:
•	Take reasonable steps to prevent users from placing or transmitting content likely to be classifiable as Class 3
•	Advise subscribers that access to the Internet by a person under the age of 18 years should be supervised by an adult.
•	Inform users that material likely to be classifiable as Class 2 should not be made available to persons under the age of 18 years.
•	Advise local content providers and distributors that material likely to be classifiable as Class 2 should be accompanied by a prescribed on screen warning before the content can be viewed.
The Practice Statement states that members shall be regarded to have complied with the above if they have informed their users of these requirements, and if they act promptly to block access or cancel accounts when they become aware of any breaches.
There is also a requirement that member report to HKISPA about what action they have taken to rectify breaches, and must notify HKISPA if they receive content related complaints from members of the public. 
Control of Obscene and Indecent Articles Ordinance 
Adult content is regulated by the Control of Obscene and Indecent Articles Ordinance which sets out three categories of articles: 
•	Class 1 articles (neither obscene nor indecent) which will not be subject to any restriction.
•	Class 2 articles (indecent) which may only be published to persons over 18 years old and must carry a prescribed warning
•	Class 3 articles (obscene) which are banned from publication.
Categorisation is undertaken by the Obscene Articles Tribunal. Breaches of the Ordinance carry heavy fines and prison terms. However, the Ordinance does not apply directly to Internet content except by cross reference to the Broadcasting Ordinance and the HKISPA Code of Practice.
Hong Kong has a strict Gambling licensing regime, which as yet has not been explicitly extended to Internet gambling. Licenses are administered by the government department Television and Licensing Authority (TELA) (http://www.tela.gov.hk/) and there is a great deal of debate about how to restrict access to offshore Internet gambling sites by Hong Kong residents. An amendment to the Gambling Ordinance which illegalises unauthorised Internet gambling was put before Parliament in 2000, but was never enacted. 
2.2.2.	Japan
Japan has an entirely self-regulatory system of content regulation for online services, although there are some specific laws for purely local content.
In 1996 the Electronic Network Consortium (ENC) (http://www.enc.or.jp/eindex.html) issued the  General Ethical Guidelines for Running Online Services (http://www.nmda.or.jp/enc/guideline.html). These Guidelines require members to take certain action in order to “observe laws, the customs of society and public order and morals”:
All online service providers should prepare Membership Clauses which cover:
•	‘Duties to observe’
•	‘Forbidden conducts’
•	‘Counter measures’
All online service providers should establish a Help Desk and Management System which covers:
•	A help desk to take care of requests
•	Internal procedures for dealing with cases
All online service providers should define and publicise ‘countermeasures’.
The Guideline contains no detailed explanation of material likely to require action, or the exact nature of the action to be taken. Japan is generally tolerant of most forms of sexual content and has a Constitutional right to Freedom of Speech so it is difficult to ascertain exactly what the requirements of the Guideline are in practice. Due to the self-regulatory nature of content regulation, in practice there is very little online censorship in Japan. 
2.2.3.	Singapore
Under s 21 of the Singapore Broadcasting Act the Singapore Broadcasting Authority (SBA) is in charge of licensing: 
•	Internet Service Providers (ISP)
•	All localised Internet Service resellers (classified as a type of ISP)
•	All Non-Localised Internet Service Resellers (classified as a type of ISP)
•	Individuals engaged in providing content for business, political or religious purposes on the www through the Internet (classified as a type of Internet Content Host)
•	Corporations or groups of individuals (including inter-alia, companies, partnerships, societies, organisations whether properly constituted under the laws of Singapore or otherwise) (classified as a type of ICH)
These groups are all subject to the Internet Code of Practice (http://www.mda.gov.sg/Documents/PDF/Policies/PoliciesandContentGuidelines_Internet_InterneCodeOfPractice.pdf) and it is also required that all ISPs and any group which promotes religious or political discussion register with the SBA. The SBA has listed a number of objectionable sites, mainly pornographic, which ISPs are required to block. However this list (approximately 100, according an estimate by insiders in 2008) is not extensive, and it is still relatively easy to access such material. 
It should be noted that on the Internet globally, the estimates of the number of sites which may contain content which contravenes various notions of obscenity number in the hundreds of thousands, often changing IP addresses and URLs frequently. Any attempt to correctly identify and effectively block even a significant proportion of these would be very technically demanding and laborious on an ongoing basis, to say nothing of the potential for debate over the precise standards used in classification.
The Code of Practice specifies broad categories and sub-categories on issues of public security and national defence, racial and religious harmony and public morals and sets out that all licensees shall ensure that they have used their “best efforts” in ensuring no content that comes within these broad categories and sub-categories is made available on the Internet.  
As it stands, the terms of the Internet Code of Practice and the Conditions of License are drafted in generally wide terms to enable SBA regulators much by way of the exercise of their discretion in determining what constitutes objectionable material under the Codes. The SBA have made it very clear that they will not over-zealously enforce these regulations. 
This relatively ‘light touch’ regulatory reality in Singapore is perhaps counter-intuitive, given the popular reputation of Singapore as having quite strict controls over free speech.  By contrast, some assessments of the regime for ISP level filtering to be imposed under a scheme proposed by the new Australian government in early 2008 –  the so-called “Great Firewall of Canberra” – may involve much more stringent restrictions, with an initial 800 sites listed by ACMA growing to 1600, and possibly expanding indefinitely once in operation.
2.2.4.	South Korea
Internet content is specifically regulated by the Electronic Communication Business Law and the Telecommunication Business Act which under an Enforcement Decree (regulation), establish the Information and Communications Ethics Office as a content regulator. This office has flexible powers to regulate the content of online services, including chat, BBS and other ‘public domain services’.  
The legislation gives the power to the Minister of Communications to order an information provider to restrict specific material which may ‘encroach on public morals’ or which may ‘harm youth’s character, emotions and their sense of value’. 
These Ministerial directions (take down notices) are very common in South Korea. The Information and Communication Ethics Committee operates a ratings system which in effect results in the censorship of material. The Office can also order an ISP to prevent users accessing offshore sites. 
Additionally, the Korean Criminal Code makes it an offence punishable by fine or imprisonment to distribute or manufacture obscene goods.
While there is no specific Internet gambling law, the Information and Ethics Committee has responsibility over ISPs including the provision of gambling services. The Ministry of Information and Communication also recently conducted an inquiry on Internet gambling. In addition, the Korean Criminal Code makes it an offence punishable by fine or imprisonment to habitually gamble or bet, open a gambling house or sell lottery tickets (unless licensed). 
2.2.5.	China
See the section at the end of this material on technological means of content regulation, such as the so-called “Great Firewall of China”.
3.	Content Regulation in Australia
In Australia online content is regulated by both Commonwealth and State legislation. 
(It has been a quite fluid field over the last decade, so you should continue to check the Tuesday IT pages and other sources for news of developments.)
3.1.1.	Commonwealth Content Regulation 
The Commonwealth regime establishes a framework for regulating Internet Service Providers (ISPs) and Internet Content Hosts (ICHs). 
•	An ISP is defined as a person or an organisation who ‘supplies an Internet carriage service’, consisting of ‘service points’ within Australia, which enable ‘end-users’ (members of the public) to access the Internet. 
A corporate intranet for example, would not generally be regarded as an ISP, as it is not accessible to the public. 
•	ICHs are persons who ‘host Internet content’ in Australia. For example, a person who has their own website or server in Australia and hosts content provided by a range of contributors is an ICH. 
3.1.2.	State Content Regulation 
Content providers, creators and users are regulated by State laws. Such laws generally regulate the intentional publication and transmission of proscribed material online.
While somewhat out of date, Volume 6, Number 1 (2000) of UNSW Law Journal (http://www.austlii.edu.au/au/journals/UNSWLJ/2000) is a good resource for Internet content regulation in Australia. The article ‘The Government's Regulatory Framework for Internet Content’ was written by Senator Richard Alston, the then Minister for Communications, Information Technology and the Arts. 
For a more recent overview from an anti-censorship advocate perspective, see the EFA’s censorship pages (to 2006) http://www.efa.org.au/Issues/Censor/cens1.html, and their more recent filtering update page (May 2008) http://www.efa.org.au/censorship/mandatory-isp-blocking/.
3.2.	Jurisdiction example: online gambling and Betfair
Betfair Pty Limited v Western Australia [2008] HCA 11 (27 March 2008) http://www.austlii.edu.au/au/cases/cth/HCA/2008/11.html 

While Commonwealth government has had some success in imposing a content regulation framework, State governments have had more limited success in imposing regulation on the Internet.  
For instance, gambling company Betfair had a major victory in March 2008 against an attempt by the Western Australian state government to ban their online betting service on the basis that the state’s attempt unlawfully contravened provisions in the Australian Constitution protecting interstate trade from restrictions. 
The success of this constitutional argument effectively bypassed state action on, and judicial consideration of, the alleged harm created by Betfair’s most controversial service: betting that some teams or sportspeople would lose (which is easy), not win (which is hard, if the other team or horses are trying to win too). 
This case thus potentially undermined one aspect of state gambling regulation, the common prohibition on such ‘bets-to-lose’. It also came after of years of controversy over state action to either suppress or approve online gambling in Australia.
4.	Commonwealth Regulation 
The Broadcasting Services Amendment (Online Services) Act 1999 (Cth) inserted Schedule 5 into the Broadcasting Services Act 1992 (Cth), (http://www.austlii.edu.au/au/legis/cth/consol_act/bsa1992214/sch5.html) 
Schedule 5 established the Online Content Co-Regulatory Scheme (‘the Scheme’) for the regulation of prohibited content on the Internet. In contrast to ‘self-regulation’ by industry alone or traditional ‘regulation’ by the government, the concept of ‘co-regulation’ is that government, industry and also the community all have roles to play in managing online safety issues. 
It is important to note that before the introduction of Schedule 5, the old content regulation model was based on a centralized, ‘one-to-many’ pattern of distribution. This is the idea that content controls were directed to, for example, the publisher of a magazine or the importer of a film to ensure that the magazines they produced or films they imported were classified according to the Australian system. In many cases, there was a border-crossing element or ‘choke point’ from which to identify and control which materials needed to be classified. 
However, to accommodate new technology and methods of creating and communicating content, the new system works on a ‘many-to-many’ distribution idea. It is now possible that every person is a potential creator, provider or distributor. The focus of the policy has thus changed to ISPs and ICHs, treating them almost like traditional publishers. This sort of analogy has created several problems, in that ISPs and ICHs cannot afford to check or know everything they are potentially responsible for.
For the above reason, a variety of ‘safe harbour’ models sprang up, where ISPs or ICHs are not liable and have no obligation to investigate material they are unaware of, but as soon as they become aware of potential infringing material, this engages their liability and they have an obligation to take it down. (Broadcasting Act 1992 (Cth), Schedule 5, clause 91). (See below for more discussion on this aspect of Schedule 5.)
Note that the Communications Legislation Amendment (Content Services) Act 2007 has changed the original scheme in recent years. It moves some of the regulatory system from the original Schedule 5 to a new Schedule 7. 
Where once it did not, the Scheme now differentiates between different types of content provider, including link services and streaming content providers, with detailed rules for how ACMA can regulate each. It also extends coverage to new sorts of channel such as premium mobile content (below).  Schedule 7: http://www.austlii.edu.au/au/legis/cth/num_act/clasa2007544/sch7.html 
Some issues to be considered in this area include:
•	Classification – what are the limits?
•	Relationship to:
—	Anti-discrimination
—	Defamation
—	Sedition
—	Certain types of copyright
•	Relationship to certain criminal offences and the criminalisation of content
—	cyber-bullying to harassment or stalking
—	child abuse
—	terrorist-related content
•	See also:
—	 the definition of ‘internet content’, Schedule 5 cl 3(a) and (b), and pointers to what sort of online materials are included in the regime. Note that the Act does not apply to ordinary email or broadcasting services.
For the Scheme’s coverage of overseas content, see p.133 Fitzgerald et al. 2007.
It may be useful to think of the following material in this context as an incomplete adaption or version of a previous model, and consider the reasons why, for this reason, the Scheme may or may not work.
4.1.	The Online Content Co-Regulatory Scheme 
The Scheme is based on the principle that what is restricted offline should also be restricted online. In other words, 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.
Under the Broadcasting Services Act 1992 (Cth), the Australian Communications and Media Authority (ACMA, formerly the Australian Broadcasting Authority) and the Internet industry share responsibility for the regulation of Internet content. More specifically, the Scheme is underpinned by industry-developed codes of practice which the ACMA can supplement using its reserve powers. However, in general, activity by ACMA under the Scheme is complaints-driven (Sch 5, cl 2 Broadcasting Services Act 1992). 
Some resources on the Co-regulatory Scheme:
•	For a brief overview of the Commonwealth scheme, see the Department of Broadband, Communications and the Digital Economy’s (DBCDE) information on content regulation (http://www.dbcde.gov.au/internet/online_content_regulation).
•	Senator Richard Alston published The Government's Regulatory Framework for Internet Content in 2000, covering the Government’s reasoning behind enacting the 1999 amendments (http://www.austlii.edu.au/au/journals/UNSWLJ/2000/1.html).  However, some of the government’s aims (for example consistent laws among the States, Territories and the Commonwealth) are still yet to be given effect. 
•	The 1999 amendments required that a review of the legislative provisions establishing the online content scheme be undertaken, and in 2002, DCITA (now DBCDE) published an Issues Paper ‘A review of the operation of Schedule 5 to the Broadcasting Services Act 1992’. Submissions on the paper were open to the public until November 2002. The mood of the Paper revealed support for stricter content regulation. (http://www.dbcde.gov.au/__data/assets/word_doc/0019/10909/Australia_Library_and_Information_Association.doc ) 
•	‘Canberra clamp on net porn’ March 5 2003 Australian IT (available on Factiva via UNSW Library website)
4.2.	Elements of the Commonwealth Scheme
The main elements of the Scheme are summarised below:
•	Industry codes of practice (see also 4.3 Codes of Conduct)
•	The IIA Codes of Practice 
—	Content Services Code (current version 1.0 registered July 2008)
—	Spam Code
—	Gambling Code
—	Codes available at: (http://www.iia.net.au/index.php?option=com_content&task=section&id=3&Itemid=33)
—	These constitute the main basis of regulating ISPs and ICHs under the Commonwealth Scheme. 
Originally, the codes were drafted by the Internet Industry Association (IIA) (http://www.iia.net.au) and registered by the ABA, in response to a requirement in the Act that this be done by 1 January 2000. The Codes are now administered by ACMA. Although the codes were originally voluntary and not binding, per Schedule 7, ACMA has the power to create industry standards when the codes are not working, which can have a mandatory effect. Addressing the initial problem to some extent.
•	The Codes of Practice are discussed in greater detail in section 6 below. 
•	The Australian Communications and Media Authority (ACMA)-administered complaints system 
•	Under the Scheme, any Australian resident or company can complain to the ACMA about offensive online content. 
In 2005, ACMA replaced the Australian Broadcasting Authority and the Australian Communications Authority. It now administers the national regulatory scheme for internet content established under the Broadcasting Services Act 1992, and was designed to address community concerns about offensive and illegal material on the internet. The ABA’s original complaint system was replaced by the ACMA complaint system, but they are very similar. (http://www.acma.gov.au/WEB/STANDARD/pc=PC_90103)
•	ACMA also provides a telephone hotline as well as an online complaints form: https://web.acma.gov.au/AimsWeb/index.html?scriptMode=true 
•	ACMA is required to investigate all bona fide complaints, and decide whether the material complained about falls into any of the prohibited categories. (This is discussed further below) 
•	Community Education 
•	Education is the responsibility of the ACMA and a community advisory body established by the Federal Government called NetAlert (http://www.netalert.gov.au/). Their role is to educate and inform the public and the industry about managing access to prohibited content on the Internet. 
•	The Scheme does not apply to private or restricted distribution communications such as Intranets or email (due to the definition of ‘Internet content’ under Sch 5 cl 3 Broadcasting Services Act). It also does not apply to chat rooms or live audio or video streaming, however it does apply to material contained in newsgroups (page 18 Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill 1999 (http://www.comlaw.gov.au/comlaw/Legislation/Bills1.nsf/framelodgmentattachments/058C723AE5B16A45CA2576900000949C)
4.3.	Codes of Conduct
The Internet Industry Association (IIA) Internet Industry Codes of Practice (version 1.0) http://www.iia.net.au/images/content_services_code_registration_version_1.0.pdf operates as part of a co-regulation scheme; that is, while it is a voluntary code, the Broadcasting Services Act provides that if the Australian Broadcasting Association (ABA) directs an ISP or ICH to comply with this code, they are required to do so. 
Under the Codes of Practice ISPs and ICHs have responsibilities as follows:
•	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; 
•	Provide Scheduled Filters for subscribers in Australia at a charge determined by the ISP (although in the case of individual subscribers this charge cannot exceed the cost to the ISP of providing the filter). The obligation on ISPs to provide approved filters does not apply in instances where there is already an effective mechanism in place to filter content (the ‘designated alternative access prevention arrangement’); 
•	Take reasonable steps to inform subscribers about their right to, and the procedures for, making complaints to the ABA about online content.
Examples of the ways in which these obligations can be fulfilled are set out in the relevant IIA code. 
The Codes also recognise the limitations of present filtering technologies and the impracticality of filtering all Internet content. Nevertheless, the Codes endorse end user empowerment including education, the provision of information, and filtering methods as the most practical means by which responsible adults can facilitate appropriate controls, particularly in the case of children. 
To encourage adoption of best practice standards IIA launched in March 2002 the Family Friendly ISP Seal scheme. The Scheme allows ISPs that are compliant with the IIA codes to display a special seal known as the ‘Ladybird Logo’. 
Useful websites regarding the IIA Codes of Practices include:
•	IIA Content Regulation Code of Practice Webpage – http://www.iia.net.au/index.php?option=com_content&task=section&id=3&Itemid=33
•	Guide for ISPs:  Information About Online Content – http://www.iia.net.au/index.php?option=com_content&task=view&id=121&Itemid=33
•	Guide for Internet Users:  Information About Online Content –http://www.iia.net.au/index.php?option=com_content&task=view&id=416&Itemid=73
ACMA monitors ISPs for compliance with the content codes, and can seek enforcement action in the Federal Court. (Source: ‘IIA Guide for Users’ http://www.iia.net.au/index.php/initiatives/guide-for-users.html)
4.4.	The ACMA Complaints Scheme
Any person who is an Australian resident or an Australian company can make a complaint to ACMA about objectionable material on the Internet or about a contravention of the Codes by an ICH (Broadcasting Services Act 1992, Sch 5, cls 22 – 25). The complaint must be made either in writing to the ACMA, or via an online complaints form  (http://www.acma.gov.au/WEB/STANDARD/pc=PC_90102) . 
Upon receiving the complaint, ACMA must investigate it unless they view the complaint as frivolous, misguided or designed to undermine the scheme (Sch 5, cl 26). 
ACMA must take action where it is satisfied that the content complained of is prohibited content or potential prohibited content. The action taken by the ACMA will depend on whether the 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)). The major difference is that for content hosted in Australia, ACMA will investigate the content.  
If ACMA is satisfied that content in Australia is prohibited content, it must give the ICH a written notice or  “final take-down notice” directing the ICH not to host such content, and noting relevant procedures to follow to make sure that a restricted access system is in place for material which is R Rated – see below for further information on classifications.
4.4.1.	ACMA action where material is hosted in Australia 
In the cases of prohibited content, if the content is hosted in Australia and is classified RC, X or R (where there is no RAS in place), the ACMA must issue a final take-down notice directing the ICH to cease hosting the relevant content by 6.00 pm the next business day. 
Where potential prohibited content has not been classified, but the ACMA is satisfied it would be substantially likely to be classified RC, X or R (where there is no RAS in place), the ACMA must refer it to the OFLC for classification. An interim take-down notice must also be issued where the material is likely to be classified RC or X. This notice directs the recipient to cease hosting the content until the ACMA has notified them of the classification of the content determined by the OFLC. The notice requires that the content be taken down no later than 6.00pm the following business day (Sch 5, cl 30).
The ACMA must give the ICH written notice of the OFLC’s decision. If the OFLC classifies the content RC, X or R (where there is no RAS in place), then the content is prohibited content and must be dealt with accordingly by the ACMA (see above). Note that this means that hosting R rated content hosted in Australia will be banned unless there is an RAS in place.
When the content is hosted in Australia, the content is first classified by the Office of Film and Literature Classification Board under the Classification (Publications Films and Computer Games) Act 1995 (Cth), (Sch 7, cl 14(3))
 There is a process for review of classification to Minister by ACMA, ISPs or content hosts, and ‘persons aggrieved’ having some relationship to the subject matter of the Internet content concerned.  Schedule 5 cl 16 (Fitzgerald p.131 2nd para) 
4.4.2.	ACMA action where material is hosted outside Australia
If the ICH is not in Australia then the ACMA only takes action if the content is prohibited content or potential prohibited content under definition given in Schedule 7, cl. 20 and 21. This includes not only all RC and X 18+ classified material, but also R 18+ and MA 15+ material if certain other criteria are also satisfied. (see below)
If the ACMA forms the view that the content complained of is or would be prohibited or potential prohibited material, then the ACMA must , among other things, notify the content to Internet service providers under the Designated Notification Scheme set out in the IIA Codes (Sch 5, cl 40). 
The ACMA must also notify the content to an Australian police force if it thinks that the content is of a ‘sufficiently serious nature’ to warrant such an action. 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. 
4.4.3.	Prohibited Content – once different, now the same definition
Originally, under the Scheme, the meaning of ‘prohibited content’ differed depending on whether the site was hosted in Australia or overseas (Sch 5, cl 10 -- repealed). However, since the recent amendments, prohibited content in Schedule 5 now has the meaning given in Schedule 7, clause 20. 
Before:
•	For sites hosted in Australia, ‘prohibited content’ was Internet content that had been refused classification (RC) or classified X by the OFLC. It was also Internet content that is rated R, where access to the Internet content is not subject to a Restricted Access System (see below). 
•	For sites hosted outside Australia, ‘prohibited content’ is only material that would be refused classification (RC) or classified X by the OFLC. Ie, there is no ‘R-rated but no RAS’ category.
Now:
•	For content hosted both within and outside Australia, prohibited content is all material classified RC or X 18+ by the OFLC,
•	R 18+ classified content if the content is not subject to a restricted access scheme
•	 MA 15+ classified content if all the following conditions are also satisfied:
—	Access is not restricted by a restricted access scheme
—	The content does not consist of text and/or one or more still visual images
—	 The content is provided by means of a content service that is operated for profit or part of a profit-making enterprise
—	The content service is provided on payment of a fee (periodical or otherwise)
—	The content service is not an ancillary subscription television content service
•	Alternatively, M 15+ classified content may also be prohibited material if a different set of criteria are all satisfied:
—	Access to the content is not subject to a restricted access system
—	Access to the content is provided by means of a mobile premium service
Potential prohibited content is Internet content which has not been classified by the OFLC, but if it were to be classified, there is a ‘substantial likelihood’ that it could be  would be prohibited content Sch 7, cl 21).
For a review of the regulation of content delivered over convergent devices, see Fitzgerald et al, 2007  p.145, and DCITA 2006.
(http://www.archive.dbcde.gov.au/__data/assets/pdf_file/0011/39890/Final_Convergent_Devices_Report.pdf) 
4.5.	Other ISP obligations
4.5.1.	Reporting child pornography and abuse
ISPs and ICHs are obliged to report material they have reasonable grounds to believe is child pornography or child abuse material to Australian Federal Police under the Crimes Legislation Amendment (Telecommunications Offences and other Measures) Act (No 2) 2004.
The Criminal Code Act 1995 (Cth) Schedule 1 clause 474.25 provides:
474.25 Obligations of Internet service providers and Internet content hosts 
A person commits an offence if the person: 
(a)  is an Internet service provider or an Internet content host; and 
(b)  is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is: 
(i)	child pornography material; or 
(ii)  child abuse material; and 
(c)	does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material. 
Penalty:  100 penalty units. 
This provision complements the right of citizens to complain to ACMA about objectionable material they find on the Internet.
4.6.	Restricted Access System (RAS) 
An RAS is a system for preventing access by children to content that is unsuitable for them (Sch , cl 14). Originally, minimum requirements for RAS' were set out in the ACMA's Restricted Access Systems Declaration 1999. However, this has since been replaced by the Restricted Access Systems Declaration 2007 (http://www.acma.gov.au/webwr/_assets/main/lib310563/ras_declaration_2007.pdf).  
Before, in order to qualify as a Restricted Access System, the system must perform three functions:
•	Registration 
The system must receive applications for registration in either hard copy or electronically. In order to be registered, the potential subscriber must supply her/his name, declare that s/he is 18 years of age or older and provide credit card details or other evidence of age. 
•	Qualification/Validation 
The system must verify the potential subscriber’s age and, upon verification, issue a personal identification number (PIN) or password to the applicant on condition the security information is not revealed to anyone else. 
•	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.
Now, there are different minimum standards for MA 15+ and R 18+ restricted access schemes.
For MA 15+ content. the scheme should:
•	Requires an application for access to MA 15+ content
•	Provide warnings and safety information 
•	Limits access to MA 15+ content
•	Include quality assurance measures 
For R 18+ content, the scheme should:
•	Requires an application for access to R 18+ content
•	Provides warnings and safety information 
•	Verifies the age of applicants
•	Limits access to R 18+ content or R 18+ and  MA 15+ content
•	Includes a risk analysis and quality assurance measures
•	Meets record keeping requires
Note: more detail on how this is to be done is available in the Declaration document (see link above).
4.7.	Enforcement 
Failure to comply with an ACMA take-down notice or a direction to comply with a Code is an offence carrying a maximum penalty of 50 penalty units for an individual, or five times that amount for a body corporate (in NSW, 1 penalty unit = $110 as at July 2010), (Sch 5, Part 6). 
A contravention of an ACMA direction or notice is considered to be a continuing offence each day during which the contravention continues and thus can attract up to 10% of the above penalties per day (BSA, s 213).  
4.8.	Criticisms of the Commonwealth Scheme 
A March 2003 study by the Australia Institute claimed that the current scheme is a “manifest failure”. The study, Youth and Pornography in Australia: Evidence on the extent of exposure and likely effects revealed that 84% of teenage boys and 60% of girls had accidentally come across Internet sex sites and 38% of boys and 2% of girls deliberately visited such sites. 
The study made the rather drastic recommendation that all ISPs should filter all Internet content (http://www.tai.org.au/documents/downloads/DP52.pdf ). Such a view accorded closely with the previous Federal Government’s position, who frequently announced that they were looking at reducing access to hardcore pornography from personal computers. (See also ‘Net porn controls useless: study’ March 4, 2003 cnn.com http://edition.cnn.com/2003/WORLD/asiapcf/auspac/03/03/australia.netporn/index.html) 
Electronic Frontiers Australia also criticised the ineffectiveness of the online regulation scheme noting that it “has 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). However, unlike the Australia Institute’s recommendations, the EFA scathingly condemned the current regime as an infringement on adult free speech, both generally and in light of the fact that offshore publications to do not receive the same level of censorship. The site urged those who value freedom of speech to lobby Parliament to repeal the 1999 amendments to the Broadcasting Services Act. 
In November 2002, EFA released a response to DCITA’s Review of the Operation of Schedule 5 to the Broadcasting Services Act 1992. In their response, they noted several failings of the regulatory scheme and the review paper itself, including that the then-Minister, Senator Richard Alston, made statements trumpeting the success of the scheme which by his own admission were based on erroneous statistics. It also claimed that the “ABA's refusal to provide the URLs of taken-down Australian hosted web pages, on the ground that such information would enable a person to access prohibited content on the Internet, indicates the ABA believes such content has not been taken down from the Internet” (http://www.efa.org.au/Publish/efasubm_bsa2002.html). 
4.9.	Further Proposals for ISP level filtering in Australia
After several years of the PC-based filtering scheme being in operation under the Howard Government, in early 2008 the incoming Rudd Labor government announced a review, and flagged an intention to investigate mandating centralized ISP level filtering. Individuals seeking to retain a ‘clean feed’ (not filtered) would have to nominate themselves as a person wanting to ‘Opt-out’, rather than as before, where individuals ‘opted in’ to the filtering scheme. 
The initial test was ‘Prohibited content’ [classified] or ‘potentially prohibited content’ [ACMA guessed what CB would do if it was classified], under the BSA. This is potentially able to cover material similar to that broadcast on late night TV as MA15+, if there is no online age verification, it is for commercial benefit, and not still images or text (see definition of ‘prohibited’).
This was quite controversial, because it apparently goes further than previous plans in imposing monitoring and restrictions on Internet use in Australia. One source of controversy is the potential for comparison with China, where the ‘Golden Shield’ or ‘Great Firewall of China’ has long attracted external criticism, most recently during the 2008 Olympics, on the basis of alleged contradictions of earlier promises to permit free access to foreign journalists. (See below for more discussion on this topic.)
In 2010, the government plans to introduce mandatory ISP-level filtering to block overseas hosted material on a list of Refused Classification-rated material (the RC Content list) maintained by the ACMA. 
For more information, see the EFA’s filtering update page, May 2008 at (http://www.efa.org.au/censorship/mandatory-isp-blocking/), and the DCBDE ‘Frequently Asked Questions’ on ISP-filtering (http://www.dbcde.gov.au/funding_and_programs/cybersafety_plan/internet_service_provider_isp_filtering/isp_filtering_live_pilot/isp_filtering_-_frequently_asked_questions#1.0). 
5.	State and Territory-based Content Regulation
Content providers, creators and users are regulated by State laws. Such laws generally regulate the intentional publication and transmission of proscribed material online.
Legislation regulating the publication and transmission of proscribed material online by content providers and content creators is different in each state and territory, and some states are yet to regulate in this area. 
In September 1999 the Standing Committee of Attorneys-General’s group of State and Territory Censorship Ministers released draft model legislation (http://www.efa.org.au/Publish/actdraft1.html) with the aim of standardising censorship legislation across the state level. 
However a consistent national model could not be agreed upon and the movement has since been abandoned. 
5.1.	State and Territory censorship laws affecting online material

The Australian states and territories which have enacted censorship legislation which purports to also regulate online material, typically based on the 1999 draft model law include:
•	Victoria 
•	Classification (Publications, Films & Computer Games) (Enforcement) Act 1995 (Vic). (http://www.austlii.edu.au/au/legis/vic/consol_act/cfacga1995596/index.html) This legislation provides for heavy penalties for on-line "transmission" of material that is unsuitable for a minor. In many respects, this legislation is as draconian as that proposed by the NSW government in 1996 (below) but not yet in force. It makes what some consider the same fundamental category mistake of treating on-line services as being similar to broadcasting.
•	Western Australia
•	Censorship Act 1996 (WA) (http://www.austlii.edu.au/au/legis/wa/consol_act/ca1996137/index.html - that link seems temporarily unavailable, document also available as PDF at http://www.slp.wa.gov.au/pco/prod/FileStore.nsf/Documents/MRDocument:6628P/$FILE/CenshpAct1996_00-00-00.pdf?OpenElement).
This piece of legislation covers both offline material and Internet content, flying in the face of the Commonwealth Government's then attempts to confine any new Internet legislation to the Commonwealth sphere. The WA legislation is substantially different from both the Commonwealth legislation and legislation in other States. For example, under the WA Act, it is not illegal to make R18 and X18 content available to adults online, although under Commonwealth law the ACMA is empowered to order such content be taken down. 
•	However, in other ways the WA legislation is more restrictive than laws in other jurisdictions. For example, it makes possession of any content classified RC a criminal offence (while laws in other States only prohibit possession of the sub-set of RC content that involves child pornography). 
•	Under the WA Act, police do not even need a warrant to search the premises of Internet Service Providers, which obviously includes all records, logs, private E-mail messages and other data contained on the provider's system.*
•	Northern Territory 
•	Classification of Publications, Films and Computer Games Act 1996 (NT) 
•	This Act includes Internet censorship laws which are based on a draft of the WA Censorship Act and is very similar to that Act. (http://www.austlii.edu.au/au/legis/nt/consol_act/copfacga508/index.html) 
•	South Australia 
•	Classification (Publications, Films and Computer Games) (On-line Services) Amendment Act 2002 (SA) came into force on 1 December 2002 and is based largely on the 1999 draft model, but is not identical, nor is it identical to the NSW Act that was also based on the draft model. Among other things, it makes it a criminal offence to make available to adults information that is unsuitable for minors.* (http://www.austlii.edu.au/au/legis/sa/consol_act/cfacga1995489/)  
•	NSW 
•	The online content jurisdiction has been enacted but not commenced and thus is not in operation. Relevant NSW amendments are contained in Schedule 2 to the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 which is again modeled from the 1999 draft (http://www.austlii.edu.au/au/legis/nsw/consol_act/cfacgeaa2001676/sch2.html).  
•	A commencement date has not yet been proclaimed for Schedule 2. In fact, the NSW Parliamentary Standing Committee on Social Issues inquiry into the Bill recommended in July 2002 that Schedule 2 be repealed (http://www.parliament.nsw.gov.au/Prod/parlment/committee.nsf/0/030E66805420D081CA256F1E0019E00A). 
•	On 9 December 2002, the NSW Attorney General announced that "the Act will neither be commenced nor repealed until [the Commonwealth Government's review of the Commonwealth censorship legislation] has been completed and the findings have been considered." It has made no further progress at the present time.
•	 ACT
•	Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 became effective 1 January 1996, but did not include provisions regulating content on online services.
(http://www.austlii.edu.au/au/legis/act/consol_act/cfacga1995596/) 
•	Queensland and Tasmania have yet to enact any relevant legislation. 
The Queensland Classification of Computer Games and Images Act 1995 came into effect on 1 July 1995. This complex legislation differed from that passed in other States in that it included a very broad definition of images (including text) within the meaning of the term ‘computer game’. Although purportedly not intended to cover the Internet, one of the first cases where charges were laid under this Act involved an Internet user. 
•	However, after lengthy proceedings the user was cleared of all charges after the judge ruled that the Act did not apply to content on on-line services (although it does apply to material on users' computer disks).*  R v Quincey, Unreported, Queensland District Court, Ipswich, Robertson J, 29/10/1996 (http://libertus.net/censor/history/docarchive/rvqdecision.html). 
•	There were, in 2004-2007, a number of criminal cases under the Classification of Computer Games and Images Act 1995 , and its replacement provisions in the Crimes Act Qld from 2005, in relation to possession of “child exploitation material” but it was possession of the images on a computer disk and not use of the Internet as a mode of access and distribution that was at issue.
More detailed information about state and territory content regulation, and some of the content above marked*, can be found at Electronic Frontiers Australia’s extensive Internet Censorship in Australia page at http://www.efa.org.au/Issues/Censor/cens1.html.  
5.2.	ISP and ICH Exemptions – BSA Schedule 5
Importantly for ISPs and ICHs, they cannot be held responsible ‘under State or Territory law or under the common law or a rule of equity’ for carrying or hosting particular material on the Internet if they were ‘not aware of the nature of the content’ (Broadcasting Services Act 1992 (Cth), Sch 5 cl 91),
http://www.austlii.edu.au/au/legis/cth/consol_act/bsa1992214/sch5.html#_Toc188426934.
For example, if an ISP carries material provided by someone else which is defamatory or in contempt of court, and is not aware that the material is carried on its service, the ISP cannot be sued or prosecuted for carrying this material. The intention of the law is that the content providers or the actual content creators should bear this liability. 
Only if an ISP becomes aware of illegal or infringing material on its service and takes no action to have it removed within a reasonable time, the protections afforded by law will not apply. This is a very significant ‘loophole’, introduced at the urging of the Internet Industry Association. It relieves ISPs and ICHs of the need to monitor or moderate online content contributed by their users or anyone else, and in fact creates a strong incentive not to do so (for the purposes of state law). 
However, on receipt of notice from anyone: a regulator, offended person or ‘officious bystander’, this immunity evaporates and their only sensible option is to immediately take down any material alleged to contain content contravening state laws. 
6.	Technology-specific content regulation
6.1.	Mobile phones
Mobile content is regulated under the Telecommunications Act 1997 (Cth) (http://www.austlii.edu.au/au/legis/cth/consol_act/ta1997214/) and the Telecommunications Service Provider (Premium Mobile Service) Determination No 1 2005. 
Content that is made available on a mobile phone through a public Internet service is also covered by the BSA Schedule 7. Clause 20 refers to prohibition on ‘Premium Mobile Content’, content which is charged for, if it is classified as MA15+ and made available without a Restricted Access System. This is a much lower classification level than in other channels (http://www.austlii.edu.au/au/legis/cth/consol_act/bsa1992214/sch7.html)
Recent versions of IIA’s content Codes cover the availability of all these types of content on a mobile phone.
6.2.	National ISP and backbone filtering schemes
6.2.1.	China
China has been described as running a ‘Great Firewall of China’ with the intention of excluding large amounts of material from access by its citizens. 
The national filtering system was made under Rules on the Administrative of Internet News Information Service (RAINS) issued by the Ministry for Information and State Council Information Office in PRC (Fitzgerald et al, 2007, p.146).
See also the OpenNet Initiative bulletin on RAINS (http://opennet.net/bulletins/012/).   
6.2.2.	Australian proposals for ISP level filtering?
Some in Australia have suggested that the 2007 proposals  (Conroy announces mandatory internet filters to protect children) to require ISP-level mandatory filtering amount in effect to a similar ‘Great Firewall of Australia’.  (See above for discussion of the proposals).
See also ‘Australia Joins China In Censoring The Internet’, Duncan Riley, 30 Dec 2007 (http://www.techcrunch.com/2007/12/30/australia-joins-china-in-censoring-the-internet/).
See CLPC projects on the filter and young people:
http://cyberlawcentre.org/censorship/