While there have been a lot of loud critics of the new on-line censorship legislation (the Broadcasting Services (On-Line Services) Amendment Act 1999), one aspect of the Act has been largely overlooked. It contains an immunity provision giving Internet Service Providers and Internet Content Hosts powerful new defences to defamation, contempt and other content based actions.
Traditionally, anyone who publishes material has been on the hook for defamation and contempt, even if they didn't know the content was problematic and didn't participate directly in creating or editing it.
The flipside of this has been the defence of innocent dissemination, available to newsagents, libraries and the like who can prove: firstly, they were not a "primary publisher" and secondly, they did not know or have reason to know that the publication they were distributing was defamatory and their ignorance was not due to negligence.
But courts are fairly strict about who gets away with the innocent dissemination defence: a TV network that broadcast a live, instantaneous transmission of another network's current affairs program couldn't rely on it. Although the High Court said that "in the right circumstances" electronic publishers might be protected, it treated the broadcaster as a "primary publisher." This was because the station chose not to delay and pre-vet the broadcast, despite knowing that it was the type of program that was likely to include defamatory material.
The big question for ISPs and ICHs has been whether or not Australians court would treat them like the relay broadcaster or regard them as just "subordinate distributors."
There is no decided case directly on this point, but two early US cases give guidance. In one, Compuserve successfully argued it was not a primary publisher because the volume of traffic on its server made it impossible to vet. In the other, Prodigy failed because it marketed itself as "family friendly" and reserved the right to remove problem content. The choice for Australian ISPs has been difficult: once they start monitoring, they might be treated as "primary publishers" but if they don't they might be considered negligent for not dealing with the likelihood of problem content. A further twist is that the new Act requires Industry Codes dealing with monitoring to be registered. While screening for R or X rated content is a far cry from screening defamatory material, the worry has been that it might transform ISPs into "primary publishers" under the traditional approach.
This is where the new section 91 comes in. At first glance, it seems designed to make ISPs and ICHs immune from conflicting state based censorship laws. But it is broad enough to go further: section 91 effectively says state laws cannot make an ISP or ICH:
* civil or criminally liable for content it was not aware of;
* monitor or keep records of content carried or hosted.
"ICH" is only vaguely defined but probably includes anyone who provides a platform for content but isn't involved in creating, editing or supervising it. ISPs and ICHs can now be more relaxed about carrying or hosting contentious material than previously thought. Of course, once aware of problem content, they may be liable if they don't remove it.
This new Australian immunity is roughly in line with overseas approaches.
Since 1996, the English Defamation Act has protected access providers as long as they take reasonable care and don't know they have contributed to a defamatory publication.
The US Communications Decency Act 1996 has gone even further in addressing the problems raised in the above cases. US service providers are not liable for information provided by someone else. Relying on this, AOL avoided liability for a defamation in the Drudge Report, even though it had an exclusive agreement with Matt Drudge to publish on its service, had marketed his gossip and rumour rag as a drawcard for new subscribers and reserved the right to remove certain content.
Both in the international context and locally, the clear and certain formula of the new Australian immunity provision makes a lot of sense. Anyone familiar with the tangled web of State based defamation laws (and the numerous fruitless attempts to get uniformity) will understand the absurdity of State regulation of a national media. And, as contempt of court is a criminal offence, the new provision gives ISPs and ICHs relief from concerns that they might be charged for transmitting material which could interfere with a fair trial somewhere in Australia.
But there is a small but significant sting in its tail. In an unusual provision, the Minister for Communications, Information Technology and the Arts can declare that a particular area of State law is not covered by the section 91 immunity. This leaves a very significant issue - defamation and contempt liability in the Internet context - entirely up to the discretion of the Minister. It is not clear yet how this will be dealt with but it would be a pity if this opportunity for a clear cut approach to on-line liability was lost.
