Update on the Federal Government’s Convergence Review

August 26, 2011

By Elisabeth K. Cooke

The Department of Broadband, Communications and the Digital Economy is in the process of completing a convergence review of the media and communications laws and regulatory frameworks that apply withinAustralia. The convergence review has stimulated a tremendous debate across the industry.

As older media and communications technologies converge on the Internet, the Convergence Review was formed to examine the changes effected on consumers, business and government and propose new regulations for the digital landscape.

Upon release of the Framing Paper in June 2011, the Convergence review received 72 submissions addressing the eight principles and policy concerns raised by the Convergence Review Framing Paper. The submissions detailed overwhelming support for the review and in depth discussion and feedback on the eight principles and corresponding policy issues addressed in the Framing Paper. Many submissions included other principles and issues that should be considered by the Review Committee.

The eight principles listed in the framing paper broadly addresses: diversity and competition, local and Australian content, community standards, consumer and citizens rights and spectrum allocation. While these principles read like a wish list in a newly converged environment, they raise significant challenges and difficulties. For instance, Principle 5 states that:

‘Communications and media services available to Australians should reflect community standards and the views and expectations of the Australian public’.

However, within such a diverse nation, the fundamental step of defining whose ‘community standard’ is to be the measuring stick in assessing the ‘Australian public’ is absent.

Lawmakers will likely face significant challenges when drafting regulations to fit across all platforms in a converged environment. Complicating the review process even more, these new regulations must be able to anticipate future technological advancements within an industry that has the potential to change dramatically overnight. Social networking raises its head once again, blurring the line between the consumer and creator, further complicating a new regulatory scheme.

However, the difficulties with the convergence review do not stop with technological challenges. The review itself will not address copyright law, classification law, competition issues regarding the National Broadband Network, comparative international approaches orAustralia’s international obligations.

While the Convergence Review is a welcome opportunity to update media and communications law to reflect current technologies and strengthen an industry, the results may not be quite so simple.

The Convergence Review can be followed on the Department of Broadband, Communications and the Digital Economy website, and on twitter.

Elisabeth Cooke recently received a JD from the Melbourne Law School and works for the Centre for Media and Communications Law

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Online Dating, Dating Apps and Privacy

October 14, 2010

by Elisabeth K. Cooke

Generally, it seems counter intuitive to use the most accessible and public forum available to find a person for something as private and intimate as a dating relationship. However, in the United States alone, 20 million people per month visit online dating sites. Online dating services cater to a variety of interests include the general run of the mill categories, for example country of origin, religion and age. If you were under the impression that online dating sites were only for singles – think again. There are also sites that cater to married men and women looking for an affair. The Ashley Madison Agency grabbed headlines in June over their controversial Sydney Airport billboard slogan ‘Life is short. Have an affair while in Sydney’.

While online dating sites provide a number of privacy concerns, users face a dilemma: in order to effectively use online dating services, they must provide some personal information, but providing that information puts them at risk of privacy violations. Often online dating sites will share information with 3rd party advertisers as a term and condition of use. Even searching for ‘privacy issues’ on a basic google search pops up ads for online dating sites. The Canadian Privacy Commissioner has launched an inquiry into online dating sites particularly concerning what happens to users’ personal information once the user wishes to terminate the account. The inquiry is currently pending.

New apps with new risks: GRINDR

While it may seem that online dating services are making the dating world as easy as online shopping, the Grindr iPhone application has taken this concept much further. Created in 2009 by Joel Simkhai of Los Angeles, California, Grindr is billed as ‘the go-to place for gay, bi, and curious guys to meet.’ Grindr is a location based free downloadable application available on Itunes and is used in 162 countries worldwide. Grindr is mobile and works based on your location, tracking you on a map. Grindr uses the GPS technology in the iPhone (or Blackberry and Wi-Fi in the iPod Touch) to determine your exact location, instantly displaying users profiles to other users around them.

Quite literally, the profiles of other men in the vicinity will pop up in order of proximity, (closest appearing at the top of the list) in exact number of feet or metres. The free version allows users to see up to 100 profiles and an extra 2.99$ a month increases viewable profiles to 200 more profiles. You can immediately see others’ locations on a map, initiate an online chat, view their photos, tag particular users as ‘favourites’ and send private messages. Of course you can follow Grindr on Facebook and Twitter.

There is no need for heterosexual or lesbian envy. Grindr is currently working on new versions for both of those markets.

Grindr’s privacy policy assures users that they can remain 100% anonymous. Users are not required to provide an email address or account registration. They can choose not to have photos of themselves (although they are warned that will probably get more responses from local men by including a photo and some information). Grindr will not share your personal information or location with any third parties other than advertisers. However, Grindr is silent regarding how they will respond to account deactivation or termination. Do they delete your profile? Can other users continue to search for you?

In providing an arguably high level of convenience to men looking for a date, Grindr has developed a way to lift the veil of privacy on dating and social networking sites. Imagine sitting in your office, a restaurant or on a tram and being able pull out your iPhone and browse potential dates, it’s like Marco Polo without the blindfold.

Grindr may be taking away the nuisance of having to go through introductions and small talk, but it’s at the cost of privacy. Anyone with an iPhone, iPad or iPod Touch can download the free application and now see users’ profiles (again, the amount of information/photos is determined by individual users) and pin point their exact location on a map. While we are in the clichéd age of the information superhighway, how much are we willing to sacrifice for these immediate connections? How do we maintain a professional/personal life when the tools and mediums of communication do not reflect that division?

Elisabeth K. Cooke is a JD candidate at the Melbourne Law School

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Juggling Facebook and Privacy

June 3, 2010

by Elisabeth K. Cooke

Founded in February 2004, Facebook has quickly become one of the most popular social networking sites, playing host to 400 million users in 75 different languages around the world.  Facebook’s mission is to ‘give people the power to share and make the world more open and connected’. They are certainly well on their way. Even the Supreme Court of the Australian Capital Territory is on board with Facebook, ruling in 2008 that Facebook is a valid protocol to serve notice to defendants.

The concept of social networking sites raises a number of privacy and safety concerns. Recently, Facebook has been in the news for a surprising variety of reasons: police laying charges based on the contents of photos, fugitives being located from their own status updates and young people coming to harms way. The very nature of social networking sites provides for a broad ability to raise all sorts of issues. However, it is how Facebook users establish and maintain privacy that has become of the utmost importance.

Understanding Privacy Settings

Scrutinizing Facebook’s privacy statement is no simple task. The New York Times recently investigated Facebook’s privacy statement, drawing particular attention to the word count. In 2005, Facebook’s privacy statement was at a mere 1,004 words. Five years later it has ballooned to 5,830 words, a growth of over a thousand words a year. The New York Times cleverly points out that Facebook’s policy statement is longer than the United States Constitution. The Australian Constitution, however, could eat Facebook’s privacy statement for breakfast, coming in at approximately 14,000 words. The University of Melbourne’s privacy policy weights in with 1,383 words. The length of the privacy statement alone is daunting, never mind trying to navigate around the 50 different privacy settings with 170 different options.

Talking about Facebook and privacy has quickly become as popular as skinny jeans and the elusive ‘best’ coffee in Melbourne. But what should we actually be worrying about? What are the risks and concerns? As a proud and possibly addicted Facebook user, here are my top three concerns:

  1. Who can access my Facebook profile content and personal information?
  2. Search engine visibility
  3. 3rd party advertisers

Understanding privacy on Facebook is much different than privacy in the offline world. Generally, we assume that we are the gatekeepers that grant others a right to our personal information. Facebook sees things differently. Facebook keeps the gate open as their default setting for privacy. Facebook argues that everyone ‘opts in’ to join Facebook and every time a user posts a status update or photo, they have ‘opted in’ to share that personal information by the mere act of adding it to their account. This means that anyone who joins Facebook (meaning anyone over the age of 13 with a valid email address) has zero privacy until they sort through the 50 different settings with 170 options.

Controlling My Profile

Facebook’s privacy settings are detailed and specific. Most importantly they are designed to empower users to sort through each setting individually in order to protect users privacy. It is essential go through each category to select your own privacy settings.

Personally, I was quick to adjust the ‘Search’ subcategory to control who could search for me either on Facebook or on a search engine (search engines can index anything you make public, I set my profile as completely private). I also took the liberty of ‘blocking’ a few individuals on Facebook who shall remain nameless. Apart from 3rd party advertisers, which I’ll address later on, that took care of the outside world – it was then time to work through my ‘Friends’.

I have found that the most effective and time efficient way to control what different ‘Friends’ can see is by creating ‘friend lists’. Creating lists is relatively easy. On my ‘Home’ page, I selected ‘Friends’ from the right hand column of options. The ‘Friends’ page provided me with a list of all my friends in order of most recent activity. At the top of the ‘Friends’ page is a button marks ‘Create a List’. Once I clicked the list I had the option to create a group of friends separate from all of my other friends.

While I would never want to openly admit that I classify or rank my ‘friends’ – I secretly do. Inner circle friends, family, work colleagues, university colleagues all have their own lists. I have found these lists useful to sending out group messages over Facebook, but most importantly, I can tailor the level of privacy I want to have against the entire list by simply going through my privacy settings and ‘allowing’ or ‘blocking’ them on all settings (who can see photos, wall posts etc). This enables me to have a slightly more manageable and time efficient strategy for protecting my privacy. This is of course not to say that I have a particularly interesting Facebook profile, in fact, I am quite sure that I don’t. However, not all of my friends on Facebook need to see me in my pyjamas on Christmas morning.

3rd Party Advertising

Facebook says they don’t share identity or names – they sell advertising based on demographic and perceived interests. Facebook uses anonymized demographically targeted ads, and “serve ad impressions to users where the word is on there somewhere”. While similar to a key word search on Google, this the word search goes through your entire Facebook profile, including personal messages, wall posts, etc. This translates into advertising getting their audience without getting the personal information.

Since setting my status as ‘engaged’ I have been bombarded with ads full of blushing young women dressed up as cupcakes. At the beginning of the year, I arranged a trip to Sydney and organized to meet friends via Facebook messages. Imagine my surprise when ads for Sydney Opera House tours started popping up on the right hand side of my profile.

Facebook’s business pages currently hosts over 1.5 million small businesses and plan to go up against Google in providing advertising services. The anonymized demographically targeted ads provide businesses with the ability to narrow down their target audience, reaching directly to specific individuals. Facebook goes as far as to provides users with the option to ‘close’ an ad and give feedback on why they chose to close the ad. How helpful.

Facebook’s Statement of Rights and Responsibilities

Facebook’s ‘Statement of Rights and Responsibilities’ provides that they can amend the Statement so long as they provide users with notice by posting the change on the Facebook Site Governance Page and provide users with an opportunity to give comment (Section 13). If there are 7000 or more users who comment on a change, Facebook will provide a voting mechanism for the particular change. While Facebook prides itself on being user friendly – the moral of the story is that changes can happen without users receiving direct notification. This means that users must exercise self-responsibility and frequently check the Facebook Site Governance Page for any updates or changes.

New Additions and applications

Social plug-ins let you see what your friends have liked, commented on or shared on sites across the web. All social plug-ins are extensions of Facebook and are specifically designed so none of your data is shared with the sites on which they appear. For example, last week I was on cnn.com and paused in the middle of the reading an article only to notice a bar at the right hand side of the page informing me that one of my Facebook friends had recently posted a comment on his friend’s Facebook wall about that particular article. I couldn’t log into Facebook fast enough to update my privacy settings.

Facebook is on the cusp of offering location-based services to Facebook users. This service will allow users to see the geographical location of other users at the time they log in. This will certainly take ‘face creeping’ (checking up on or ‘stalking’) someone’s profile to an entirely new level.

Facebook’s Stance

Facebook reported that they will soon ramp up their efforts to provide better guidance to those confused about how to control sharing and maintain privacy. Elliot Schrage, Vice President for Public Policy at Facebook said that ‘anyone interested in these topics should become fans of the About Facebook Page and the Facebook Site Governance Page — two valuable sources of information that already provide regular updates to more than 8 million users’. Users are also welcome to become a fan of ‘Facebook’ and to leave a suggestion at the help center.

While I continue to juggle my paranoia with what has become a mild obsession with Facebook I have found three approaches that I believe protect my privacy: maintain my ‘Friend lists’, checking changes to privacy settings frequently and using what my mother would call using my ‘not-so-common common sense’ about what I post about myself on the internet. But after all the work to maintain my privacy and stay ahead of any updates or changes, I can’t help but ask myself, is it worth the risk?

Elisabeth K. Cooke is a JD candidate at the Melbourne Law School


Twitter – ripe ground for litigation?

May 6, 2010

By Elisabeth Cooke

Created in 2006, Twitter is a free social networking and micro blogging site available to anyone with an Internet connect and an email address. It is based in San Francisco, USA, but is available in French, German, Italian, Japanese and Spanish. There are more than 100 million users worldwide.

‘Tweets’ are posted on the authors Twitter page and are available either to friends and followers or to anyone on the Internet, depending on individual privacy settings.

A ‘tweet’ consists of a maximum 140 characters, expressing all sorts of information and comments. You can follow President Obama (http://twitter.com/BarackObama), leading newspapers around the world, the World Health Organization (http://twitter.com/whonews) or Justin – a guy in the states who tweets all sorts of comments from his 74 year old father (http://twitter.com/shitmydadsays), which I am ashamed to say has become a personal favourite.

Twitter has quickly become a forum to disseminate information across the globe to a tremendously high number of users. Of course, this has opened the door to marketers and spammers the world over. Looking for a coupon or special deals for movie theatres? Be sure to check Twitter! Businesses have begun offering bargains to consumers who provide ‘special offer’ codes from twitter postings.

On April 14 2010, the Library of Congress in Washington DC recently tweeted, ‘Library to acquire ENTIRE Twitter archive – ALL public tweets, ever, since March 2006! Details to follow.’ While it is unclear what actual use the public tweets archive will fill, it demonstrates the level popularity of this social networking phenomenon.

With the ability to speak out and publish an opinion or comment so effortless comes the inevitable question: What happens when things go wrong? 

Last year, Courtney Love became the first celebrity to be sued for defamation over comments she posted on her Twitter and MySpace accounts. Clothing designer Dawn Simorangkir (under the label Boudior Queen) filed a complaint in the Los Angeles Superior court suing for defamation, invasion of privacy and infliction of emotional distress. There are 10 allegedly defamatory tweets in question that were all written and posted within twenty-one minutes. The most popular sample of Love’s tweets is “oi vey don’t f— with my wardrobe or you will end up in a circle of corched eaeth hunted til your dead”. The case is currently pending.

The legal implications for Twitter users are currently coming to light. The United States has been working their way through defamation claims resulting from posts on twitter, but we have yet to see the implications of cross boarder ‘tweets’ bringing defamation claims. In the Gutnick case, the High Court found that an article printed in an online magazine in the United States that was downloaded in Australia constituted ‘publishing’ under the act. The court noted that was the cost of an American company doing business in Australia – they needed to be aware of Australian defamation laws.

But where does that leave tweeters? Twitter is not just about doing business – individuals, friends, newspapers, and celebrities use it. Celebrity ‘tweets’ are increasing in media attention. This social medium provides a unique forum that courts are only just beginning to approach. While we have yet to see the legal implications of ‘tweeting’, perhaps we can find out on twitter – the US Supreme Court tweets (http://twitter.com/USSupremeCourt). The High Court of Australia however does not. 

Elisabeth Cooke is a JD candidate at the University of Melbourne


Internet Censorship in Australia

April 9, 2010

By Elisabeth Cooke

When I think about censorship, I instantly recall the image of my mum jumping up off the couch to change the channel when a ‘grown up’ show came on too close to bedtime. Or seeing pictures in the newspaper with big black bars blocking out all the bits I was not meant to see. The censorship of radio, tv and print media now seems much simpler than the internet censorship issues we are faced with today. The concerns are predominately the same: protecting children, preventing criminal acts etc. However, the risk to our civil liberty seems substantially greater.

Last month, newly declared ‘Villain of the Internet’ Communications Minister Stephen Conroy announced a mandatory censorship proposal, grabbing headlines around the world, as the proposal joined Australia to the ranks of Iran, Saudi Arabia, North Korean, Burma and Vietnam. Legislation to implement the mandatory ISP blocking of blacklisted websites is expected within the coming weeks. While the proposal is cause for concern, it is worth discussing the current model before critiquing the proposal.

The current model of internship censorship in Australia is complaints driven. The Australian Communications and Media Authority (ACMA) receives complaints about internet content and reviews it according to the Internet Industry Association Codes. Based on their assessment, the ACMA has the right to issue notices and direct Internet Service Providers (ISP’s) to comply with industry standards. However, the ISP’s are not always responsible for the content unless they are themselves the hosts of the content in question. Of course, the ISP’s require government licenses to operate and it does not take a stretch of the imagination to fathom instances where ISP’s may censor content on governmental request. The ACMA can require hosts to comply with the law in Australia, but hosts outside of Australia are beyond the reach of the ACMA’s jurisdiction. It is worth noting that personal communications are not with the scope of the ACMA. The content of emails and attachments are not regulated under this model of censorship.

There are a number of concerns regarding the current model. The fact that the model is complaints driven begs the question ‘who is complaining’? Are specific interest groups able to lobby the ACMA to remove ‘questionable’ content? There is also no formal and open appeals process to review decisions. Notably, the members of the AMCA are not elected, they are appointed from varying backgrounds.

Understandably, the ACMA does not have an easy task. They sift through shocking content for the benefit of our society and a critique of the current model is by no way intended to diminish the vital role they play. However, the proposed model is of much greater concern.

The Proposed ISP Filtering Plan

The proposed model, Australia’s ISP Filtering Plan, would initiate mandatory ISP-level filtering on all Refused Classification content. The Refused Classification content is defined as:

- Child sexual abuse imagery

- Bestiality

- Sexual violence

- Crime instruction

- Drug use

- Terrorist act advocacy

The list has been compiled by the ACMA based on public complaints and assessed against National Classification scheme criteria. There is an appeal process – to an industry body, the Internet Industry Association. At first glance, the list seems reasonable- it certainly isn’t the type of content my mother would have wanted me to be exposed to. But the list of content is quite broad and would apply to the strictest threshold at state level to determine Australia’s threshold on each of the areas of refused classification. For example, Queensland’s abortion laws are stricter than any other state or territory. Therefore a mandatory ban would sit at the Queensland threshold for the entire country.

Of further concern is the broad scope of the topics. There is growing concern that topics such as euthanasia, abortion, safe injections sites, graffiti art, gay and lesbian content and social/political forums fall into the Refused Classification topics. Adding sites to a blacklist with such a broad scope increases the risk that legitimate sites were also block, never mind the negative impact on internet speed. Of further concern is the idea that even if sites are blocked, there is an important element in indexing sites so that at least you know what material is unavailable. Otherwise we are ignorant to the existence of broad scope of information.

Mandatory censorship provides a false sense of security. The technology used to block sites is not 100% accurate. Changes in domain names or search words would result in a never ending cat and mouse game, trying to chase illegal or legitimately blacklisted content out of Australian. The likelihood of being able to successfully block ‘bad’ content comes at an extraordinary risk to our civil liberties.

The balance of protecting Australian society and the welfare of children with freedom of information and free speech is delicate to say the least. A proposed solution to cope with this balance is to educate the public about the internet and to provide tools for peoples homes in order to allow them greater and direct control over what their families can assess. Interestingly, the Australian Government is implementing mandatory censorship after taking away the initiative providing free home control packages to families, claiming the software was not being used. There can be no doubting the abhorrent content of some internet sites and need to censor material according to our laws. But we must consider what we are willing to gamble to attain even the false sense of security provided by the proposed mandatory internet censorship.


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