[AusNOG] Hyperlink fines from ACMA

Tue Mar 17 21:03:30 EST 2009

Hi Grahame/Skeeve/All

Let's face it, publishing on the internet carries with it the threat of multiple regulatory exposure [eg., see http://en.wikipedia.org/wiki/Gutnick_v_Dow_Jones] and there are a number of situations where Australia extends its "extrajurisdictional" arm, such as where an Australian citizen commits a crime overseas, and then returns home to be prosecuted for the crime. 

Regards,

Alan Arnott
Technology Lawyer

ARNOTTS LAWYERS
T:  +61(0)2 9419 6355
F:  +61(0)2 9419 8795
E: alan at arnotts.net.au
www.arnotts.net.au 

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----- Original Message -----
From: Skeeve Stevens
[mailto:skeeve at eintellego.net]
To: Grahame Lynch
[mailto:grahamelynch at commsdaymail.com]
Cc: ausnog at ausnog.net
[mailto:ausnog at ausnog.net]
Sent: Tue, 17 Mar 2009 20:29:01 +1100
Subject:
Re: [AusNOG] Hyperlink fines from ACMA

> Excellent Grahame!
> 
> Now let's try for further clarification!
> 
> Do you think this relates to data hosted by an Australian
> 'company/individual/etc' or actually onshore in the Commonwealth of
> Australia.
> 
> Could Bulletproof move the Whirlpool website to a US physical server* (see
> below), and tell the ACMA where to go?
> 
> * Is there a difference between having your own 'owned' servers in the US,
> or if you resell another US hosting farm?
> 
> I really hope this is as simple as 'move it offshore' or 'I will move it to
> one of my US (or wherever for FTA issues) servers, and then tell the ACMA
> where to go'.
> 
> Also... If someone reports a complaint to the ACMA... I assume they are
> doing so because they 'think' it is hosted in Australia.  This would
> probably be guessed by the .au domain name we can assume.
> 
> Are .au domain named hosted on US servers safe? Or does the ACMA think they
> have a say?  Is the first thing the ACMA does is a traceroute (which could
> be misleading), and if it is outside out borders... they respond to the
> complainant 'Sorry, can't help you'.
> 
> I am not advocating any particular method to avoiding the ACMA's powers... I
> believe there is much badness on the internet which should be blocked (not
> supporting national filters though) but I just want to understand EXACTLY
> the extent of their authority and powers so I can advise people
> appropriately until they change.
> 
> ...Skeeve
> 
> --
> Skeeve Stevens, CEO/Technical Director
> eintellego Pty Ltd - The Networking Specialists
> skeeve at eintellego.net / www.eintellego.net
> Phone: 1300 753 383, Fax: (+612) 8572 9954
> Cell +61 (0)414 753 383 / skype://skeeve
> --
> NOC, NOC, who's there?
> 
> Disclaimer: Limits of Liability and Disclaimer: This message is for the
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> From: Grahame Lynch [mailto:grahamelynch at commsdaymail.com]
> Sent: Tuesday, 17 March 2009 8:15 PM
> To: Skeeve Stevens
> Cc: ausnog at ausnog.net
> Subject: Re: [AusNOG] Hyperlink fines from ACMA
> 
> Skeeve I usually lurk here but as a publisher who is conscious of my legal
> liabilities my first thought is this - an Australian web hoster will have to
> think long and hard about hosting any form of relatively lightly moderated
> message board.
> 
> I know Whirlpool is modded but by volunteers without full legal training.
> It will basically create the equivalent of 1970s UK pirate radio stations on
> oil rigs off the coast - no website with any potential for liability would
> want to be caught dead in ACMA's regulatory domicile. As far as I am aware
> ACMA only has authority over content hosted in Australia (including those
> publishing hyperlinks to prohibited content). So the incentive is to leave
> the domicile basically.
> 
> Given the list of prohibited links is supposed to be secret how does a web
> moderator really know if a poster has posted an offending link until they
> are already in breach? Catch 22.
> 
> I currently run websites out of Australia but all this is a potential
> nightmare, especially given one of my core topics of competence in my
> content is critiquing the censors.. I intend to move as much of my activity
> and potential liability offshore as is practicable.
> 
> 
> 
> 2009/3/17 Skeeve Stevens
> <skeeve at eintellego.net<mailto:skeeve at eintellego.net>>
> http://www.smh.com.au/news/technology/banned-hyperlinks-could-cost-you-11000-a-day/2009/03/17/1237054787635.html
> 
> Most people would have read about the above link.
> 
> I think it is stupid, and I'd like to know where they get off stopping
> people seeing something about anti-abortion, but... that aside.
> 
> My question is... the ACMA.... who do they have authority over?
> 
> Options:
> 
>  *   Websites hosted in Australia
>  *   Websites hosted under .au domains
>  *   Australian citizens
>  *   Anyone they goddamn please
> 
> Do they have any authority of a .au website hosted in the US?  Or if it's
> run by an Aussie, does it not matter?
> 
> Shouldn't they be going after the website owner (Whirlpool) as opposed to
> the host? (Bulletproof)
> 
> This is concerning and I have people asking questions, and I would like to
> inform them appropriately.
> 
> This is my first thought about this, and I haven't googled, searched their
> website or anything, because I am interested in the opinions of others here
> as well.
> 
> ...Skeeve
> 
> --
> Skeeve Stevens, CEO/Technical Director
> eintellego Pty Ltd - The Networking Specialists
> skeeve at eintellego.net<mailto:skeeve at eintellego.net> /
> www.eintellego.net<http://www.eintellego.net/>
> Phone: 1300 753 383, Fax: (+612) 8572 9954
> Cell +61 (0)414 753 383 / skype://skeeve
> --
> NOC, NOC, who's there?
> 
> Disclaimer: Limits of Liability and Disclaimer: This message is for the
> named person's use only. It may contain sensitive and private proprietary or
> legally privileged information. You must not, directly or indirectly, use,
> disclose, distribute, print, or copy any part of this message if you are not
> the intended recipient. eintellego Pty Ltd and each legal entity in the
> Tefilah Pty Ltd group of companies reserve the right to monitor all e-mail
> communications through its networks.  Any views expressed in this message
> are those of the individual sender, except where the message states
> otherwise and the sender is authorised to state them to be the views of any
> such entity. Any reference to costs, fee quotations, contractual
> transactions and variations to contract terms is subject to separate
> confirmation in writing signed by an authorised representative of
> eintellego. Whilst all efforts are made to safeguard inbound and outbound
> e-mails, we cannot guarantee that attachments are virus-free or compatible
> with your systems and do not accept any liability in respect of viruses or
> computer problems experienced.
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> 
> 
> 
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> 
> 
> --
> Grahame Lynch
> Ph/SMS: +668 1701 7664
> Skype: grahame.lynch
> URL: www.commsday.com<http://www.commsday.com>
> 