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Internet Industry Association submission

30 April 2008

SUBMISSION FOR TELECOMMUNICATIONS CONSUMER STAKEHOLDER FORUM

The Internet Industry Association is pleased to submit its views on consumer involvement in co-regulatory code making. We make this submission in the light of over ten years’ code making within a co-regulatory environment.

About the IIA

The Internet Industry Association is Australia's national Internet industry organisation. Members include telecommunications carriers; content creators and publishers; web developers; e-commerce traders and solutions providers; hardware vendors; systems integrators; banks, insurance underwriters; Internet law firms, ISPs; educational and training institutions; Internet research analysts; and a range of other businesses providing professional and technical support services.

The IIA provides policy input to government and advocacy on a range of business and regulatory issues, to promote laws and initiatives which enhance access, equity, reliability and growth of the medium within Australia.

Since 1997 the IIA has been involved in code development on behalf of its members.

Typically codes of practice under Australia’s co-regulatory schemes provide a means by which industry players can comply with their legislative obligations. Code rules often give practical implementation to matters that are not spelled out in legislation.

The IIA has developed codes in response to the Broadcasting Services Act 1992, the Interactive Gambling Act 2001 and the Spam Act 2003.

The codes have been registered with ACMA which has jurisdiction over these areas.

Context of code development

Our code making activities have occurred in circumstances of rapid change in the industry. More so than changes in basic telecommunications services, the evolution of new modes of content delivery over the internet, including the rise of user generated content, has effectively outpaced the capacity of traditional forms of regulation.

The internet is inherently difficult to regulate. The difficulties are no better expressed than by the keynote address at this year’s IIA AGM dinner, where Justice Michael Kirby of the High Court of Australia recounted 4 Parables of Net Regulation. In essence, His Honour pointed out that reliance on traditional statutory means was of limited and decreasing usefulness in an age of instantaneous, diffuse and global connectivity.[1] We concur. It is for this reason that we believe the co-regulatory model is best suited to addressing new and emerging social policy challenges.

Co-regulatory codes have provided the means by which important social policy issues can be addressed without recourse to new legislation. This means that we can implement a regulatory scheme that is more responsive and more targeted than under traditional (ie. statutory) regulation.

Code based regulation still requires industry compliance. Once registered the Codes are enforceable as it they were themselves law. The history of compliance with IIA’s coregulatory codes is high, as measured by successive ACMA audits. Industry is well aware that failure to adhere to these best practice standards risks a market backlash from internet users who may feel powerless to otherwise control their online experience.

The need for speed in code development in these circumstances is paramount. The balance of satisfying minimum community safeguards and delivering enforceable regulatory instruments that industry can live with is challenging. ACMA has the power to reject a code where it believes the community interests are not adequately served.

The basic model for IIA code making involves a four-step process.

First, a taskforce is formed comprising IIA members who represent a relevant sector of the industry for the matter in question. The taskforces sets about drafting a code which complies with the statutory requirements and for which compliance will be possible, having regard to the commercial nature of operations. Importantly, a significant proportion of our members are international companies with operations and a user base here. But often their hosting and service delivery is extra-jurisdictional. It is often necessary to temper the intent of legislation with the recognition that we cannot always enforce rules for foreign based operators.

Second, once a draft is complete, we are required to undergo a public consultation process. This is done generically via the media and our site but is bolstered by direct approaches to consumer and community organisations. A list of organisations we have contacted in our most recent draft code consultation is included in the attachment.

Third, public submissions and the external stakeholder inputs are considered by the taskforce and the draft is revised accordingly. The amended draft is presented to ACMA with documentation supporting the consultation process and evidence of which changes were accepted or not accepted, with reasons.

Fourth, ACMA then subjects the code to a public interest assessment of its own, having regard to the requirements of the legislation, and if satisfied, approves the code.

Most codes are subject to an 18 month review process, where the above steps are repeated, in the light of new developments in the internet environment.

Our code development process thus provides a relatively quick and efficient method of providing an operational basis to the legislation. It is accountable in requiring both consultation and registration.

As an example, the most recent code, the Content Service Providers Code, has taken some eight months in total development time. This includes the Christmas holiday period and a diversion to address the Restricted Access System determination which was a related but separate process requiring our taskforce’s attention (for about 6 weeks).

The advantage of the relatively streamlined process for consumers is that it enables internet businesses to quickly bring to market services that are available overseas.

A slower process would create regulatory uncertainty and would deprive internet users of the choice of services available elsewhere.

This is important since internet services increasingly impact on a range of economic and social activities. We believe that any change to the system which would result in delay to code development would be to the ultimate detriment of internet users for the reasons stated. The dynamism of the internet is its greatest power, and we believe the current system contains the right balance of speed and accountability.

In the ten years that we have been development the codes, we have never had an instance where a registered code has been rejected or criticised on the basis that it did not adequately meet consumer needs. We are proud of this record, and because of it remain committed to ensuring that the consultation steps we have traditionally observed are maintained.

We are happy to provide additional information as required.

Yours sincerely

Peter Coroneos
Chief Executive

Endnotes

  1. For the full address and transcript click here.

Attachment: Organisations Consulted in the Content Service Providers Code Public Consultation Process

April 2008

  1. Attorney General’s Department
  2. Australian Broadcasting Corporation
  3. Australian Consumers Association
  4. Australian Council of Social Service
  5. Australian Direct Marketing Association
  6. Australian Federation of Disability Organisations
  7. Australian Financial Counselling and Credit Reform Association
  8. Australian Interactive Media Association
  9. Australian Mobile Telecommunications Associations
  10. Australian Privacy Commission
  11. Australian Seniors Computer Clubs Association
  12. Australian Subscription Television and Radio Association
  13. Australian Telecommunications Users Group
  14. Better Hearing Australia
  15. Blind Citizens Australia
  16. Communications Law Centre
  17. Consumers Telecommunications Network
  18. Councils on the Ageing
  19. Deaf Australia
  20. Deafness Forum
  21. Disability Advisory Body
  22. Electronic Frontiers Australia
  23. Eros Foundation
  24. Federation of Ethnic Communities Councils Australia
  25. Federation of Ethnic Communities' Councils of Australia
  26. Financial Counsellors Resource Service
  27. Internet Society of Australia
  28. Isolated Children's Parents' Association
  29. Isolated Children's Parents' Association of Australia
  30. National Council of Women of Australia
  31. National Council of Women of Australia
  32. National Council on Intellectual Disability
  33. National Ethnic Disability Alliance
  34. National Indigenous Disability Network
  35. NSW Council for Civil Liberties
  36. Physical Disability Council of Australia
  37. Rural Counsellors VIC
  38. SETEL (Small Enterprise Telecommunications Centre)
  39. Swinburne University
  40. Telecommunications & Disability Consumer Representation
  41. Telecommunications Consumers Group of SA
  42. Women With Disabilities (Aust.)
  43. Young Media Australia
  44. Youth Affairs Council of Victoria
  • Document ID: 83761 |
  • Last modified: 15 May 2008, 6:25pm