Response to ALIA's letter to the Australian Broadcasting Authority on the Broadcasting Services Amendment (Online Services) Act and how it may apply to libraries and information services

11 December 2001

Ms Jennefer Nicholson
Executive Director
Australian Library and Information Association

Dear Ms Nicholson

Definitions of Internet content host and internet service provider

Thank you for your letter of 22 October 2001 regarding the definitions of Internet content host (ICH) and Internet service provider (ISP) and the likely status of libraries and information services under Schedule 5 of the Broadcasting services Act 1992 (the Act). I regret the delay in responding to your letter of 16 May 2001 concerning this issue.

The status of particular organisation or service is a matter that would need to be considered on a case-by-case basis, having regard to the specific, individual circumstances of the body concerned. However, I am able to explain the general principles that guide the ABA's activities and form the basis of decisions made by the ABA on such issues. You should obtain your own legal advice on these issues where necessary.

The Act defines an ICH as a 'person who hosts Internet content in Australia, or who proposes to host Internet content in Australia'. For the purpose of conducting and investigation into a complaint about Internet content, the ABA regards the ICH to be the person or body that owns or is responsible for managing the computer equipment on which the Internet content concerned is stored. Accordingly, where a library owned or operated computer equipment on which Internet content - such as an online catalogue or community group web site - is stored, the library could be considered to be an ICH if the ABA received a complaint about the content. It is unlikely that provision of search facilities or facilitation of access to content that is hosted by another party would cause a library to be considered to be an ICH.

With regard to the question of whether a library may be considered to be an ISP for the purpose of the Act, this is likely to depend on who are the end-users of an Internet service provided by the library, and the relationship between those end-users and the library. An organisation is likely to be considered to be an ISP where it is providing an Internet carriage service to members of the public that are outside the organisation's "immediate circle" within the meaning of the Telecommunication Act 1997. Members of a library are likely to be considered to be a part of the library's immediate circle, and at this stage the ABA is unlikely to consider that a library providing the services outlined in your letter is an ISP for the purpose of the Act.

I note your advice regarding the development of policies and guidelines for responsible and ethical use of Internet services within libraries and encourage the development and adoption of such arrangements, particularly where Internet services are provided to children.

I hope this information assist you. If you have any further questions regarding this matter, please contact Richard Fraser, acting manager Content Assessment Section, on 02 9334 7860 or by e-mail to richard.fraser@aba.gov.au.

Yours sincerely

Andree Wright
Director, Industry Performance and Review Branch