While the review of the amendments to the Model Defamation Provisions is still ongoing, the recently closed consultation into the liability of Internet intermediaries for online defamatory material has indicated that Internet Service Providers will likely be granted a statutory exemption from liability. This comes off the back of the work IAA did, along with other industry representatives, in the last round of consultations regarding this matter. IAA has consistently argued that since ISPs merely providing access do not deal with content, the law should recognise this. While there was some opposition to the proposed exemption during an industry workshop, with suggestions that ISPs should rely on available defences instead, IAA has maintained in its submission that the exemption is necessary to provide ISPs with greater clarity and assurance when it comes to defamation law.  We have also asked that those involved in the mechanics and operation of other infrastructure services, such as DNS, should similarly be exempt. 

IAA’s Public Policy Advisory Panel met for its third quarter meeting on 7 September. While two panellists were unfortunately unable to attend, the Panel had a very spirited meeting, getting into the nitty gritty of telco legislation and the policy context. Sophia (IAA Policy Officer) gave an update on the consultations IAA have responded to since the last meeting (no less than 9!), as well as an overview of other work the policy team have been up to, including meetings with regulatory bodies and NBN Co, forums the team have participated in and publications that have been released. The Panel then discussed upcoming consultations and provided much guidance; sharing their knowledge on the various policy areas that will be of relevance in the coming months, and perspectives on where IAA should devote its focus.  

IAA is extremely grateful to the Panel members who dedicate their time to guide IAA’s advocacy work.  

The last chance to complete your asset registration under the new carrier licence condition and determination for eligible CSPs is 8 October 2022. Under this new determination, telcos must provide the Department of Home Affairs’ Cyber and Infrastructure Security Centre (CISC) with operational information in relation to their telecommunications assets. Where an entity holds a direct interest of at least 10% or a controlling stake in the asset, information about the interest and control in the asset must also be reported.   

An ‘asset’ is defined to be a tangible asset owned or operated by a carrier/eligible carriage service provider and is used to supply a carriage service. It does not refer to typical termination equipment on customer premises. An asset can be thought of by way of an analogy – the entire car as opposed to the individual components that make up the motor vehicle. Please visit the CISC website for further information. We have also created this helpful guide to assist you.  

IAA’s policy team have had another busy month, meeting with regulatory bodies and NBN Co mostly to reinforce IAA’s position within Australia’s Internet industry landscape. We’ve also engaged in consultations that are of relevance to our members, and prepared an educational guide to assist members in complying with new critical infrastructure obligations.

Recent submissions:

Discussion Paper – NBN Co Revised SAU Variation Proposal | NBN Co
The IAA policy team continued its involvement in the revised Special Access Undertaking after the NBN Co’s withdrawal of its previous proposal in late July. In this process, we participated in the industry forum, as well as met with the ACCC and NBN Co to express our concerns and seek greater clarity on the proposed SAU. In our response, we noted that although the Discussion Paper suggested the SAU was stepping in the right direction, lack of transparency seems to be a key issue. In particular, as NBN Co indicates that trade-offs will be necessary between service standards, and price to RSPs, we emphasised that NBN Co must be transparent in these decisions and seek industry collaboration to better inform their decisions. We will continue to be involved in this process as NBN Co seeks to lodge its revised SAU to ACCC by the end of the year.

Stage 2 Review of the Model Defamation Provisions – Part A | COAG
We also continued to be involved in the review of the model defamation provisions, with Stage 2 reflecting perspectives and suggestions made by IAA during the Stage 1 consultations held last year. IAA continued to argue for a statutory exemption to apply to ISPs, recognising that telcos are not involved in the content layer of the Internet and therefore should have assurance that they will not be liable for defamatory material published online. We’ve also argued that DNS registries, registrars and DNS cache operators should not be liable for the domain names people (registrants) register. 

Open submissions:

Exposure Draft—Telecommunications Legislation Amendment (Statutory Infrastructure Providers and Other Measures) Bill 2022 | DITRDCA | 30 September 2022
The Department of Communications is seeking feedback on proposed amendments to the Statutory Infrastructure Provider regime. The Bill indicates changes to various telecommunications laws to enhance the operation of the SIP regime. Overall, IAA approves of the principles and objectives guiding the amendments and will seek greater clarity on areas that require further explanation.

Industry Codes of Practice for the Online Industry (Class 1A and Class 1B Material) | 2 October 2022
Industry representatives have collaborated to draft the Industry Codes relating to Online Safety for the different sections of the Internet sector. This approach recognises the unique functions and roles of the various sections and thus the different responsibilities that should apply. IAA will predominately respond to Schedule 7 for Internet Carriage Services and make recommendations that will better ensure an appropriate balance between protecting end-user safety online, cost and limiting unnecessary burdens for ISPs.

5 Year Productivity Inquiry: Australia’s Data and Digital Dividend | Productivity Commission | 7 October 2022
The second interim report for the Productivity Inquiry has been released, focusing on data and the digital economy in Australia. The Commission has made various recommendations, including changes to government funding allocations for telecommunications services such as those within the Universal Service Obligation and Mobile Black Spot funding.