The draft bill states that ISPs are required to determine whether their services are used for "illegal conduct or speech."
Paragraph 152 of the Explanatory Notes to the draft bill says that "Possible action that could be taken by ISPs and Internet Content Hosts (ICHs) so as not to facilitate use of a carriage service by another person that breaches proposed subsection 474.16(1) includes an ISP ceasing to provide Internet services to that person or an ICH ceasing to host a particular Website containing content that breaches the proposed offence."
EFA executive director Irene Graham complains that the above is in contrast with the 1999 Broadcasting Services Act which "does not require ISPs to take action until they are notified by the Australian Broadcasting Authority (ABA)."
EFA strongly proposes that the offence or related defence be amended "so that ISPs are not required to determine whether the conduct or speech is illegal."
"It is unreasonable to require ISPs to decide whether or not particular conduct or speech would be regarded by 'reasonable persons' in all the circumstances as menacing, harassing or offensive," Graham said.
Graham also questioned the definition of "reasonable persons" and what "reasonable persons" consider as "offensive" content in the Internet.
EFA believes that "ISPs cannot possibly know whether a person's use was intentional and reckless nor whether guilt could be proven beyond a reasonable doubt. Neither ISPs or their lawyers are qualified to make such determinations, nor can they even be expected to make a fair and reasonable determination when the ISP risks criminal prosecution for a wrong guess."
EFA is concerned about the "intention to threaten ISPs and ICHs into becoming the nation's censors." Requiring ISPs to make such determinations will only result in Internet users having their Internet access service terminated and/or their content taken down when they have not in fact infringed the law.
"The provisions of the draft bill effectively compel ISPs to terminate a user's access in response to any allegation of offensive, menacing or harassing use of their service." EFA said they do not believe any ISP would be prepared to risk criminal prosecution, which will in turn result to Internet users being denied due process of the law with no means of appeal.
Graham said that the draft bill raises many of the same issues and concerns that were addressed and largely resolved in relation to the Internet censorship regime.
"While EFA is a critic of that regime, it does treat both ISPs and Internet users fairly in relation to these matters," Graham said.
"ISPs are not required to be the nation's censors and users can be reasonably well assured that decisions of the ABA and Office of Film and Literature Classification (OFLC) will be fair and impartial as they are not at risk of criminal prosecution themselves. Furthermore if the user/content provider does not agree with the ABA/OFLC decision, they at least have the right to appeal as a person aggrieved by the classification decision," EFA adds.
Graham also said "there has been no explanation from the Attorney-General's office on why they brought this issue back when in fact it has already been resolved before. It is completely reverse of the 1999 BSA," Graham said.