The Online Services section of the SA Bill is profoundly flawed. Serious criminal justice issues arise necessitating amendments to ensure, at the least, that ordinary South Australians who use the Internet to communicate are treated no less fairly under criminal law than offline publishers.
Many of the flaws in the document appear to arise from the attempt to force Internet content into a censorship regime developed for an entirely different medium: commercial sale and exhibition of movies and videotapes. Rather than address the intention that what is illegal offline should also be illegal online, it criminalises
material online that is not illegal offline.
The proposed laws subject South Australians to criminal proceedings for failure to foresee the classification that "would be" granted, from time to time, to particular material by a non-unanimous decision of members of the Commonwealth Board of the Office of Film and Literature Classification (OFLC). The recent controversy
over the film Hannibal highlights the fact that the OFLC Board members disagree over the boundary between MA and R content, as do many other members of the Australian community. No provision is made to enable Internet users who wish to do so to obtain a classification of material before publication on the Internet (and
Commonwealth law does not empower the OFLC to provide same, except to the ABA and police). This is inconsistent with SA legislation regulating off-line media and treats ordinary South Australians providing on-line content less fairly under criminal law than off-line publishers of magazines and films.
The SA Bill enables prosecution of content providers to commence before classification of content. While it may be argued that police would not commence proceedings against an Internet user unless they expected the OFLC to rule that particular content be classified R, X or RC, no useful purpose is achieved by enabling the
possibility of police guessing wrongly. The instance of South Australian police seizing a book containing photography by Robert Mapplethorpe from an Adelaide book store in January 2001 demonstrates that police are not specialists or even trained in interpretation of classification guidelines, nor should they be expected to be. The OFLC
Board decided that the seized book did not warrant a restricted classification (however, according to media reports of 19 February, the police have since asked the Review Board to review the Board’s decision). In other words, the police guessed wrongly. SA police suffer no penalty for guessing wrongly, but ordinary South Australians
will be prosecuted under criminal law.
The Bill does not appear to require that "Internet content" be classified at all in order to prove an allegation, since proposed subsection 83B "Proof of classification required" specifically refers only to "a film, publication or computer game". There are also a number of other sections in the Bill and
the existing Act where it appears the words "Internet content" should be added to ensure fair treatment of online publishers under criminal law.
The OFLC has not published any classification fees for "Internet content". This indicates that, as Internet content is classified for the ABA "as if" a film, in the case of a successful criminal prosecution police would demand that the online content provider pay a classification fee of $770 (the minimum for a
film for public exhibition, of 15 minutes running time) in addition to penalty. This is unjust if the material at issue is, for example, one image or a web page of text, since the fee for classification of an entire offline magazine is $130.
Proposed penalties for making available content online are double those applicable to sale and exhibition of films off-line. The maximum penalty applicable to online content providers for making available "films" (the definition of which apparently includes text and static images on the Internet) containing matter
unsuitable for minors is $10,000 even if the content is only made available to adults. The maximum penalty for sale, delivery or exhibition of an R-classified movie or video to a child offline is $5,000 and there is no penalty for sale or delivery to adults offline. Internet users should not be subject to higher penalties than offline
publishers, especially when online publishers are not granted the same rights and options available to offline publishers, for example, to obtain a classification prior to publication.
The Bill invites constant enquiry as to the particular State or Territory laws at issue as the law does not specify in which jurisdiction an offence (making available or supply) takes place. It does not define "make available" nor clarify whether content is "made available" in the state where a user downloads it,
or in the state where the web server is located, or in the state where the content provider resides. If various states fail to clarify the jurisdictional aspects and, say, Tasmania or Queensland etc introduces more restrictive provisions than SA, then SA residents may commit crimes under the laws other jurisdictions. Introduction of
legislation in any jurisdiction that does not clarify the jurisdictional aspects sets an undesirable precedent that is likely to have unintended consequences.
Existing or proposed classification legislation must be amended to ensure content providers cannot be prosecuted for infringing laws/classification decisions of jurisdictions in which they are not resident. Average Australians cannot be reasonably expected to know the laws of every jurisdiction in the nation, and should not be
placed at risk of criminal proceedings simply because they chat and/or publish material via an uncontrollable medium that crosses state and national boundaries.
If the Bill is passed unamended, it will be a criminal offence for adults to make available to another adult information that "would be" rated R by a non-unanimous decision of the Commonwealth Classification Board.
During the three years ended June 2000, over 50% of films were classified R because they contained "adult themes", that is, not because of sex, violence or coarse language. According to the classification guidelines, "Adult themes may include verbal references to and depictions associated with issues such as suicide,
crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues". Unless information on these types of topics is provided in a "discreet" manner, that is, "with little or no detail [verbal or visual information] and generally brief" (in
accord with guidelines for an MA classification) such information will be rated R and Internet users and content providers at risk of a maximum penalty under SA criminal law of $10,000.
The provision in the SA Bill is more onerous than existing legislation in Victoria, Western Australia and the Northern Territory, under which it is not an offence to make R-classified material available to another adult, as distinct from making it available to a minor.