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Academic libraries and access to objectionable

material

Alex Byrne

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FAcademic libraries and access to

objectionable material

• Universities and libraries

• UTS policies and procedures

• What is objectionable material?

• Knowledge of the law

• Library and information ethics

• How do we manage?

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FUniversities and libraries

• Freedom of inquiry is at the core of universities:– The University of Technology, Sydney is committed to freedom

of inquiry, equality of opportunity, the pursuit of excellence in teaching, research and scholarship, and interaction with the professions

– UTS:Calendar 2004 http://www.uts.edu.au/div/publications/cal/intro.html

• Freedom of access to information is at the core of libraries:– IFLA asserts that a commitment to intellectual freedom is a

core responsibility of the library and information profession worldwide, expressed through codes of ethics and demonstrated through practice

– The Glasgow Declaration on Libraries, Information Services and Intellectual Freedom http://www.ifla.org/faife/policy/iflastat/gldeclar-e.html

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FUTS policies and procedures

• UTS Code of Conduct – http://www.uts.edu.au/div/hru/policy/7_3.pdf

• Acceptable Use of Information Technology Facilities – http://www.uts.edu.au/div/publications/policies/select/itfacilities.html

• UTS Policy on the Prevention of Harassment • UTS Policy on Handling Staff Grievances • UTS Equal Opportunity Statement

• University Rules • UTS Disciplinary policies • Disciplinary provisions in the support and academic staff enterprise

agreements

• Privacy of Student Records policy • Intellectual Property policy • Information Technology Security policy • Corporate Records policies

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FAcceptable Use of Information

Technology Facilities

Objectives

• The University communications network and all computing devices are provided for the purpose of teaching, learning, research, professional development and administration. This policy informs users of their rights and responsibilities in relation to their use of this technology. It applies to all users of the University's information technology (IT) facilities and is consistent with the provision of an environment that respects freedom of inquiry and expression, privacy and confidentiality, the law and due process.

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FAcceptable Use of Information

Technology Facilities (cont)A. Ethical useB. Socially responsible use• Users must ensure that their use of the University's facilities is

socially responsible. In particular Commonwealth and State Laws and University policy prohibit harassment and discrimination, vilification or victimisation on grounds such as race, gender, religious belief, political conviction, sexual preference, or disability.

• University IT facilities must not be used to humiliate, intimidate or offend others particularly on the basis of any attribute prescribed under these laws and policies. This includes the sending of offensive emails, displaying inappropriate screen saver images and accessing inappropriate material, which may inadvertently be observed by others. Pornography and other material that can cause offence to others may not be accessed, held or displayed on any IT facilities at UTS except as is necessary to accommodate legitimate research or study needs …

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FAcceptable Use of Information

Technology Facilities (cont)

C. Legal use• Users must ensure their use of the IT facilities complies

with all relevant Federal and State legislation as well as all University statutes and regulations. Illegal activities may include:– …– Creation, possession or distribution of illegal pornography (eg

child pornography)

D. Academic standards of conductE. Competent UseF. Efficient use

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What is objectionable material?

• Of the many definitions perhaps the most apt is:

"I know it when I see it"

– Former US Supreme Court Justice Potter Stewart in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (concurring opinion)

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FSome relevant and related legislation

• Telecommunications Act (C’wealth) 1997 and associated Acts

• Broadcasting Services (C’wealth) Act 1992 and associated Acts

• Commonwealth Classification (Publications, Films and Computer Games) Act 1995

• Crimes Act (C’wealth) 1914 • Crimes Act (NSW) 1900 • Privacy and Personal Information Protection Act

(NSW) 1998 • State and federal anti-discrimination legislation

• See AUSTLII for the full acts - http://www.austlii.edu.au

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FKnowledge of the law

• Australia’s classification (ie censorship) regime:– Commonwealth Classification (Publications, Films and

Computer Games) Act 1995

• Crimes relating to child pornography:– NSW CRIMES ACT 1900

• 578B. Possession of child pornography • 578C. Publishing child pornography and indecent

articles

• Control of Internet content:– Commonwealth Broadcasting Services Amendment

(Online Services) Act

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NSW CRIMES ACT 1900 - SECT 578B

Possession of child pornography

• (1) In this section: "child pornography" means a film, publication or computer game classified RC, or an unclassified film, publication or computer game that would, if classified, be classified RC, on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.

• (2) A person who has in his or her possession any child pornography is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years (or both).

• …

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FNSW CRIMES ACT 1900 - SECT 578B (cont)

• (5) It is a defence to a prosecution under this section to prove:

– (a) that the defendant did not know, or could not reasonably be expected to have known, that the film, publication or computer game concerned is or contains pornographic material involving a child under 16, or

– (b) that the person depicted in the material was of or above the age of 16 at the time when the film, computer game or publication was made, taken, produced or published.

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NSW CRIMES ACT 1900 - SECT 578C (cont)

578C Publishing child pornography and indecent articles

• (1) In this section: "article" includes any thing: (a) that contains or embodies matter to be read or looked at, or (b) that is to be looked at, or (c) that is a record, or (d) that can be used, either alone or as one of a set, for the production or manufacture of any thing referred to in paragraphs (a), (b) or (c)

• …

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NSW CRIMES ACT 1900 - SECT 578C (cont)

• "publish" includes: (a) distribute, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire, or (b) have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a), or (c) print, photograph or make in any other manner (whether of the same or of a different kind or nature) for the purpose of doing such an act.

• "record" means a gramophone record or a wire or tape, or a film

, and any other thing of the same or of a different kind or nature, on which is recorded a sound or picture and from which, with the aid of a suitable apparatus, the sound or picture can be produced (whether or not it is in a distorted or altered form).

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NSW CRIMES ACT 1900 - SECT 578C (cont)

• (2) A person who publishes an indecent article (other than an indecent article that is child pornography) is guilty of an offence.

– Maximum penalty: in the case of an individual—100 penalty units or imprisonment for 12 months (or both), and in the case of a corporation—200 penalty units.

• (2A) A person who publishes an indecent article that is child pornography is guilty of an offence.

– Maximum penalty: in the case of an individual—1,000 penalty units or imprisonment for 5 years (or both), or in the case of a corporation—2,000 penalty units.

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FNSW CRIMES ACT 1900 - SECT 578C (cont)

• (4) For the purposes of this section, an article may be indecent even though part of it is not indecent.

• … • (6) In any proceedings for an offence under this section in

which indecency is in issue, the opinion of an expert as to whether or not an article has any merit in the field of literature, art, medicine or science (and if so, the nature and extent of that merit) is admissible as evidence.

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NSW CRIMES ACT 1900 - SECT 578C (cont)

• (7) If a corporation contravenes, whether by act or omission, another provision of this section, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the provision if the person knowingly authorised or permitted the contravention.

• (8) A person may be proceeded against and convicted under a provision pursuant to subsection (7) whether or not the corporation has been proceeded against or been convicted under that provision.

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FBROADCASTING SERVICES ACT 1992

Three component scheme1. schedule 5to BSA 1992 regulates Internet service

providers and Internet content hosts

2. State/Territory laws and section 85ZE of the Commonwealth Crimes Act 1914 that impose obligations on: – (i) producers of content; and– (ii) persons who upload or access content

3. non-legislative initiatives directed towards: – (a) monitoring content on the Internet; and – (b) educating and advising the public about content

on the Internet.

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BROADCASTING SERVICES ACT 1992 (cont)

• Internet content hosted in Australia is prohibited content if: – (a) the content has been classified RC (Refused

Classification) or X by the Classification Board; or– (b) the content has been classified R by the Classification

Board and access to the content is not subject to a restricted access system.

• Internet content hosted outside Australia is prohibited content if the Internet content has been classified RC (Refused Classification) or X by the Classification Board.

• Internet content is potential prohibited content if the content has not been classified by the Classification Board, but if it were to be classified, there is a substantial likelihood that the content would be prohibited content.

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FBROADCASTING SERVICES ACT 1992 (cont)

• A person may complain to the ABA about prohibited content or potential prohibited content on the Internet, and the ABA must investigate the complaint.

• If the ABA is satisfied that Internet content hosted in Australia is potential prohibited content, and is likely to be classified RC or X, the ABA must: – (a) request the Classification Board to classify the

content; and – (b) give the relevant Internet content host an interim take-

down notice directing the host not to host the content pending the classification of the content.

• If the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA must give the relevant Internet content host a final take-down notice directing the host not to host the prohibited content.

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FBROADCASTING SERVICES ACT 1992 (cont)

• If the ABA is satisfied that Internet content hosted outside Australia is prohibited content or potential prohibited content, the ABA must:

– (a) if the ABA considers that the content is of a sufficiently serious nature to warrant referral to a law enforcement agency— notify the content to an Australian police force; and

– b) notify the content to Internet service providers so that the providers can deal with the content in accordance with procedures specified in an industry code or industry standard (for example, procedures for the filtering, by technical means, of such content).

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FCOMMONWEALTH CRIMES ACT 1914 -

SECT 85ZK

Equipment used for unlawful purposes etc.

• (1) A person shall not: (a) connect equipment to a telecommunications network

with the intention of using it in, or in relation to, the commission of an offence against a law of the Commonwealth or of a State or Territory; or

(b) use equipment connected to a telecommunications network in, or in relation to, the commission of such an offence.

Penalty: Imprisonment for 5 years. • Also includes sections relating to investigation,

seizure of equipment, etc.

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FNon-legislative initiatives

• NetAlert was established in late 1999 by the Australian government to provide independent advice and education on managing access to online content. Its roles include:– providing users with sensible, helpful and reliable

advice and information about potential problems, dangers and threats present on the Internet and ways in which users can act to minimise or avoid these problems

– developing and promoting information on existing technological solutions that assist users and the Internet industry to better manage Internet content

• http://www.netalert.net.au/

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Statements of library and information ethics

• The Glasgow Declaration on Libraries, Information Services and Intellectual Freedom

• The IFLA Internet Manifesto

• ALIA Statement on free access to information

• ALIA Statement on online content regulation

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FThe Glasgow Declaration on Libraries,

Information Services and Intellectual Freedom

• IFLA proclaims the fundamental right of human beings both to access and to express information without restriction.

• IFLA asserts that a commitment to intellectual freedom is a core responsibility of the library and information profession worldwide, expressed through codes of ethics and demonstrated through practice.

• … Libraries and information services contribute to the development and maintenance of intellectual freedom and help to safeguard democratic values and universal civil rights. Consequently, they are committed to offering their clients access to relevant resources and services without restriction and to opposing any form of censorship.

• Libraries and information services shall acquire, preserve and make available the widest variety of materials, reflecting the plurality and diversity of society. The selection and availability of library materials and services shall be governed by professional considerations and not by political, moral and religious views.

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FThe Glasgow Declaration on Libraries, Information

Services and Intellectual Freedom (cont)

• Libraries and information services shall make materials, facilities and services equally accessible to all users. There shall be no discrimination for any reason including race, national or ethnic origin, gender or sexual preference, age, disability, religion, or political beliefs.

• Libraries and information services shall protect each user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.

• http://www.ifla.org/faife/policy/iflastat/gldeclar-e.html

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FALIA Statement on free access to information

• Principle: Freedom can be protected in a democratic society only if its citizens have unrestricted access to information and ideas.

• Statement:• … At the institutional level, library and information services

are expected to encourage the free flow of information and ideas within the scope of their roles and responsibilities.

• … library and information services have particular responsibilities in supporting and sustaining the free flow of information and ideas including:

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ALIA Statement on free access to information (cont) – asserting the equal and equitable rights of citizens to

information regardless of age, race, gender, religion, disability, cultural identity, language, socioeconomic status, lifestyle choice, political allegiance or social viewpoint;

– adopting an inclusive approach in developing and implementing policies regarding access to information and ideas that are relevant to the library and information service concerned, irrespective of the controversial nature of the information or ideas;

– …– protecting the confidential relationships that exist between

the library and information service and its clients; – resisting attempts by individuals or groups within their

communities to restrict access to information and ideas while at the same time recognising that powers of censorship are legally vested in state and federal governments;

– …– http://www.alia.org.au/policies/free.access.html

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FHow do we manage?

• Know University policies and procedures• Have a good understanding of the law• Have a good understanding of library and

information ethics• Highlight principles:

– Freedom of inquiry– Freedom of access to information– Privacy and confidentiality– Non discrimination– Avoidance of harassment – Respect the law

• Put our own attitudes to one side

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FHow do we manage?

• Emphasise the interests of our clients and respect their privacy

• Promote good sources of information– Scholarly books, journals, databases, etc– Guides to the literature in each discipline

• Assist clients to develop skills in finding and assessing information ie information literacy

• Share our experiences and responses by recording FAQs framed in accordance with the considerations and principles outlined in this presentation.

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FDealing with complaints

The usual guidelines apply:

• Treat clients respectfully– Don’t make assumptions about their activities or interests– Don’t spy on them

• If one client is complaining about material on the machine being used by another try to resolve it by getting one or both to move.

• If you feel uncomfortable about helping someone with some activity or material ask a colleague to take over or refer it to a supervisor

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And when we think there’s a problem

• Consult supervisors or managers early if we should have any concerns

• Do not discuss the matter widely inside or outside the Library because this might affect any subsequent action

• Do not interfere with equipment or resources which might be required for evidence

• Ensure that any suspected illegal activity is reported immediately to University Librarian or one of the Directors who will take appropriate action