Consumer Rights

Introduction

The traditional role of government regulation of industry is to protect consumers. This legislation not only provides no consumer protections, but tilts the playing field against the consumer and in favour of industry. In particular, it fails to address issues of privacy and freedom to read.

Especially worrying in this regard is the clause of the Bill (section 84) indemnifying service providers and content hosts from civil proceedings in respect of anything done to comply with the Bill's take-down or access blocking requirements.

Privacy

The Bill provides no protection for user privacy. Email and private data stored on Internet connected servers are included in the definition of "Internet content". While complaints about such content may not be likely, such content (or content substantially similar to it) may be classified elsewhere and deemed "prohibited". If so, private data will fall under the scope of the Bill's enforcement clauses.

For example, it is possible for Australian users to have overseas web pages emailed to them. Where such web pages have been declared "prohibited content" in an ABA notice then, under this Bill, ISPs will be required to try and block such email. Monitoring users' email in an attempt to do this would be a totally unacceptable invasion of user privacy, but it is not ruled out by this Bill.

More generally, almost all web traffic traffic consists of private communications - personal access to information. Users expect privacy for this in the same way thaat they expect their library borrowing records to be private. The Bill provides no such protection, and indeed creates defences for businesses infringing on user privacy.

Problems also exist with the lodging of complaints. An ISP employee may, as a result of a technical addressing problem, see copies of private user email. Under this legislation, they could report the email (as potentially prohibited content) and would be indemnified against civil proceedings - even if so doing breached both the ISP's contract with the user and the employee's terms of employment.

Freedom to Read

Nor does the Bill provide any protection for users' freedom to read. In attempting to comply with access-prevention and take-down notices from the ABA, service providers and content hosts are at complete liberty to exceed the scope of the notices. Indeed, if the notices are at all vague or unclear as to the precise extent of the material involved, ISPs and ICHs will be forced to interpret them in the widest possible way, least they fail to meet their obligations under the Bill.

If, for example, an ISP is given notice to block scores of different pages located on Geocities (www.geocities.com, a large site which provides free web hosting), then the ISP may choose, for technical reasons or otherwise, to block all of Geocities. This will drastically affect its users' freedom to read extensive amounts of perfectly legal material. But under this Bill, its users will have no recourse, even if by so doing the ISP has breached its contractual obligations.

Freedom to Publish

Under this Bill, users publishing content can have it removed with no warning. Neither the ABA, the OFLC, nor their content hosting service is obliged to inform them before issuing or executing a take-down notice. Moreover, there is no obligation for affected users to be informed as to which portions of their content are deemed "prohibited".

Conclusions

The Bill fails to provide consumer protections which it could reasonably be expected to. In an attempt to justify unreasonable burdens on ISPs, the legislation has given them excessive powers over their users.