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2. What should be the official objectives?
2.1 Statements of general policy and principle
2.2 Objects set out in Communications Acts
Note on what this heading covers. This section deals with broad objectives which could be used to set the direction of all communications policy. They are sometimes set out in the objects clauses of Communications Acts. Those clauses of other countries give some useful examples of what might be the highest level principles to apply in Australia. One place to express them would be at the beginning of a new Communications Act.
This policy matrix has sections below to propose objectives under particular headings such as Infrastructure, Content and Governance. The key Australian Acts contain objects for their own sectors, such as telecoms, broadcasting and radiocommunications. There seems to be fairly wide acceptance that these separate regimes should be included in a single, over-arching Communications Act.
2.1 Statements of general policy and principle
• i2010 High Level Group of the EU, Challenge of Convergence Discussion Paper (2006)
An expert EU group studying convergence and future regulation said that ‘The objectives of the various regulations and policies applying to the converging sectors that have been put in place at EU and Member States level can be, for the purposes of this discussion paper, divided into two main categories:
Economic objectives:
- Promotion of competition
- Encouraging investment and innovation
- Completion of internal market
- Maximising ICT contribution to growth
- Promotion of efficient allocation of spectrum
- Protection of Intellectual Property Rights (IPR)
Social and cultural objectives:
- Universal Service Obligations (USO)
- Plurality of media
- Promotion of cultural diversity and national identity
- Consumer protection and privacy
- Protection of minors and human dignity
- Protection against defamation
[Ref: European Union, 2006, ‘The Challenges of Convergence’, 12 December 2006, viewed 25 July 2008, http://ec.europa.eu/information_society/eeurope/i2010/docs/high_level_group/i2010_hlg_convergence_paper_final.pdf]
• Ofcom and the Communications Act 2003 (UK)
The United Kingdom Communications Act was passed in 2003. Following a different drafting style, that Act does not have a statement of general objects. However, some general principles are involved in the constitution of Ofcom. Section 3(1) of the Act says:
(1) It shall be the principal duty of Ofcom, in carrying out their functions;
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition
Ofcom summarises the specific duties which the Act gives it as follows:
Ensuring the optimal use of the electro-magnetic spectrum
Ensuring that a wide range of electronic communications services - including high speed data services - is available throughout the UK
Ensuring a wide range of TV and radio services of high quality and wide appeal
Maintaining plurality in the provision of broadcasting
Applying adequate protection for audiences against offensive or harmful material
Applying adequate protection for audiences against unfairness or the infringement of privacy
[Ref: United Kingdom Office of Communications, 2002, ‘Statutory Duties and Regulatory Principles’, viewed 25 July 2008, http://www.ofcom.org.uk/about/sdrp/]
• Develop a Charter of Communications Rights and Responsibilities
Source: Vicki MacLeod, Principal, MacLeod Consulting
The development of a Charter of Communications Rights and Responsibilities is needed in Australia, as the different communications and media services converge, to safeguard the principles which underpin our society such as freedom of speech, privacy and cultural expression. This charter should also contain measures that address consumer protection and should attempt to balance the interests of all stakeholders within an overall framework. It should also limit outside interference in an individual’s access to the Internet, for example through ‘clean feeds’.
A charter such as this could be modelled in part on the European Commission’s E-Commerce Directive 2000/31/EC. This Directive creates the basic legal framework for electronic commerce in the European Union, and provides a legal framework for information society services. In particular the Directive has specific provisions relating to the general monitoring of legal, technical and economic developments of electronic commerce and the internet, which could be a valuable basis for an Australian model.
For example, Articles 12 and 15 of the Directive provide for measures that could be included in a Charter relating to the potential liability of intermediary service providers in Australia. These article are:
Article 12: - ‘Mere conduit’
(1) Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
(2) The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
(3) This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.
Article 15 - No general obligation to monitor
Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
The text of the EU Directive notes that its aim is to strike a balance between the different interests of all stakeholders and establishes principles upon which industry agreement and standards can be based.
2.2 Ojects set out in Communications Acts
• The Electronic Communications Act, 2005 (South Africa), s. 3
The primary object of this Act is to provide for the regulation of electronic communications in the Republic in the public interest and for that purpose to:
a) promote and facilitate the convergence of telecommunications, broadcasting, information technologies and other services contemplated in this Act;
b) promote and facilitate the development of interoperable and interconnected electronic networks, the provision of the services contemplated in the Act and to create a technologically neutral licensing framework;
c) promote the universal provision of electronic communications networks and electronic communications services and connectivity for all;
d) encourage investment and innovation in the communications sector;
e) ensure efficient use of the radio frequency spectrum;
f) promote competition within the ICT sector;
g) promote an environment of open, fair and non-discriminatory access to broadcasting services, electronic communication networks and to electronic communications services;
h) promote the empowerment of historically disadvantaged persons, including Black people, with particular attention to the needs of women, opportunities for youth and challenges for people with disabilities;
i) encourage research and development within the ICT sector;
j) provide a clear allocation of roles and assignment of tasks between policy formulation and regulation within the ICT sector;
k) ensure that broadcasting services and electronic communications services, viewed collectively, are provided by persons or groups of persons from a diverse range of communities in the Republic;
l) provide assistance and support towards human resource development within the ICT sector;
m) ensure the provision of a variety of quality electronic communications services at reasonable prices;
n) promote the interests of consumers with regard to the price, quality and the variety of electronic communications services;
o) subject to the provisions of this Act, promote, facilitate and harmonise the achievement of the objects of the related legislation;
p) develop and promote SMEs and cooperatives;
q) ensure information security and network reliability;
r) promote the development of public, commercial and community broadcasting services which are responsive to the needs of the public;
s) ensure that broadcasting services, viewed collectively
i) - promote the provision and development of a diverse range of sound and television broadcasting services on a national, regional and local level, that cater for all language and cultural groups and provide entertainment, education and information;
ii) - provide for regular
aa) news services;
bb) actuality programmes on matters of public interest;
cc) programmes on political issues of public interest; and
dd) programmes on matters of international, national, regional and local significance;
iii) - cater for a broad range of services and specifically for the programming needs of children, women, the youth and the disabled;
t) protect the integrity and viability of public broadcasting services;
u) ensure that, in the provision of public broadcasting services
i) the needs of language, cultural and religious groups;
ii) the needs of the constituent regions of the Republic and local communities; and
iii) the need for educational programmes, are duly taken into account;
v) ensure that commercial and community broadcasting licences, viewed collectively, are controlled by persons or groups of persons from a diverse range of communities in the Republic;
w) ensure that broadcasting services are effectively controlled by South Africans.
• Communications and Multimedia Act 1998 (Malaysia), s. 3
(2) The national policy objectives for the communications and multimedia industry are:
(a) to establish Malaysia as a major global centre and hub for communications and multimedia information and content services;
(b) to promote a civil society where information-based services will provide the basis of continuing enhancements to quality of work and life;
(c) to grow and nurture local information resources and cultural representation that facilitate the national identity and global diversity;
(d) to regulate for the long-term benefit of the end user;
(e) to promote a high level of consumer confidence in service delivery from the industry;
(f) to ensure an equitable provision of affordable services over ubiquitous national infrastructure;
(g) to create a robust applications environment for end users;
(h) to facilitate the efficient allocation of resources such as skilled labour, capital, knowledge and national assets;
(i) to promote the development of capabilities and skills within Malaysia's convergence industries; and
(j) to ensure information security and network reliability and integrity.
(3) Nothing in this Act shall be construed as permitting the censorship of the Internet.
[Ref: Communications and Multimedia Act 1998 Malaysia, viewed on 24 July 2008, http://www.commonlii.org/my/legis/consol_act/cama1998289/s3.html]
• Create an objects clause that pursues the outcome of access rather than the process to achieve it (Media Access Australia)
Legislation will not always be up to date with new technologies. An objects clause that requires access would allow for wider interpretation of specific provisions to extend access requirements to new developments.
Placing access in the objects clause will highlight the importance of access and minimise the industry view that access is an additional extra. If an access requirement is made central to the objects clause then public understanding of the issue would follow. The clause would say:
To ensure all Australians have access to all communications technology regardless of ability.
Media Access understands that this will not be one hundred percent possible, however access should be seen as the starting point that communications companies work towards. If exceptions must be made, the burden should rest with industry to prove that technical, financial or logistical barriers prevent this aim being achieved.
Explicit reference to people with a disability is also essential as broad equality clauses have not promoted universal access for people in Australia. Those outlined in the South African Electronic Communications Act 2005 could be taken as an example. Uncertain terminology using terms such as 'as far as practicable' should be avoided.
The UK model, where access requirements are clearly defined should be taken as an example. See: http://www.mediaaccess.org.au/index.php?option=com_content&view=article&id=137&Itemid=75#8
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