THIRD DRAFT - 2 February 1998
1. INTRODUCTION
1.1 This Code of Practice establishes general standards of behaviour for those involved in the Internet industry.
1.2 The Code will be administered by an Administrative Council as provided for in Clause 15 of this Code.
1.3 Members of the industry who choose to adhere to the Code may indicate that they have adopted the principles of the Code by use of the "Code Compliance Symbol" endorsed by the Administrative Council from time to time.
2. OBJECTIVES
The aims of this Code include:
(a) establish confidence in and encourage the use of the Internet.
(b) to support systems for the classification of content on and management of access to content on the Internet.
(c) to improve the fairness and accuracy of disclosure to users of the Internet and the community in general.
(d) to provide standards of confidentiality and privacy afforded to users of the Internet.
(e) to provide a transparent mechanism for complaint handling for the Internet industry.
(f) to improve user relations by the Internet industry.
3. PRINCIPLES
In seeking to achieve its objectives this Code applies the following principles:
(a) the Code attempts to be technology neutral.
(b) requirements are intended to be fair to all concerned.
(c) requirements should not adversely affect the economic viability of the parties to the Code and the services they make available.
(d) the primary responsibility for content made available on the Internet rests with the relevant Content Providers.
(e) the privacy of users’ details obtained by Code Subscribers in the course of business will be respected.
4. TERMINOLOGY
In this Code:
"Administrative Council" means the Administrative Council described in clause 15 of the Code.
"Code" means this Code of Practice.
"Code Compliance Symbol" means the symbol approved by the Administrative Council from time to time as indicating agreement to comply with the Code.
"Code Subscriber" means:
"content" means all forms of information and, without limitation, includes text, pictures, animation, video and sound recording, separately or combined, may include software and includes a "Content Service" within the meaning of the Telecommunications Act (1997).
"Content Provider" means a person who publishes the content of a Web Site or database on the Internet and includes:
"copy" when used in relation to written information includes the electronic display of a copy.
"filter" means to deny access to a Web Page or other Internet content.
"hit" means a single access to a Web Page.
"Home Page" means in relation to a Code Subscriber, a Web Page used by the Code Subscriber as the starting point for users to obtain information regarding products or services of the Code Subscriber.
"Internet" means the public network of computer networks known by that name which enables the transmission of information between users or between users and a place on the network.
"IIA" means the Internet Industry Association (ACN 071 075 575).
"ISPs" stands for Internet Service Providers and includes:
"Newsgroup" means an online public discussion group or forum.
"Illegal Content" means content, the mere possession of which is illegal under an applicable State, Territory or Commonwealth law.
"person" includes partnerships, bodies corporate and the Crown.
"Programmers" means those creating and supporting the software used on the Internet.
"publish" means knowingly creating or supplying content.
"Relevant Authority" means a body authorised by statute, ministerial direction or parliamentary intent to adjudicate on matters relevant to this Code, including questions of fact.
"sale" when used in relation to content or software, includes a licence.
"software" means computer software.
"spamming" means the sending of unsolicited and unwelcome advertising material or information to an email address or newsgroup.
"URL" stands for "Uniform Resource Locator" which is the address of a file of content on the Internet.
"user " means a customer of a Code Subscriber.
"Unsuitable Content" means content, the possession of which while not illegal under an applicable State, Territory or Commonwealth law, is nevertheless determined by the Relevant Authority to be unsuitable for minors in accordance with the National Classification Code.
"Vendors" means the vendors of products, information and/or services via the Internet and, without limiting this definition, includes ISPs.
"Web Page Developers" means those who make Web Pages for users.
"Web Page" means a file of content accessible on the World Wide Web by a single URL.
"working day" means any day Monday to Friday, excluding public holidays.
"World Wide Web" means the network of content accessible on the Internet using the Hypertext Transfer Protocol ("http") .
5. SCOPE
This Code is intended to cover those who agree to be bound by the Code and whose business is to provide the products and services that comprise the Internet or who make use of the Internet to supply or service their customers.
The Internet industry includes:
6. PROMOTION OF THE CODE
Code Subscribers will:
(a) be entitled to include on their Home Page and any of their published material:
7. GENERAL CONDUCT OF ALL CODE SUBSCRIBERS
7.1 When first entering into a transaction with a user, Code Subscribers will provide to each user:
(a) by means of a notice on their Home Page or by other reasonable means:
(b) by means of email, or an attachment to the terms and conditions of subscription, or by other reasonable means capable of providing the user with adequate notice, a copy of an acceptable use policy containing guidelines for the lawful and ethical use of the Internet as recommended by the Administrative Council from time to time.
7.2 Code Subscribers will deal with each user promptly and fairly.
7.3 Code Subscribers will not:
(a) inaccurately represent the benefits of their product or service.
(b) engage in conduct which is misleading or deceptive, within the meaning of the Trade Practices Act 1974.
(c) engage in conduct that is in all the circumstances unconscionable, within the meaning of the Trade Practices Act 1974.
(d) knowingly exploit lack of knowledge of users regarding the Internet or the products or services to be provided.
(e) engage in or encourage the practice of spamming.
7.4 Advertising by Code Subscribers will comply with the Australian Advertising Standards Council Code of Ethics.
7.5 Code Subscribers will provide users with the appropriate means of advising the Relevant Authorities of any service or content available on the Internet from within Australia which the user considers is:
(a) fraudulent.
(b) misleading or deceptive and likely to cause loss or damage to third parties.
(c) illegal.
8. SECRECY AND PRIVACY OBLIGATIONS
8.1 Code Subscribers will:
(a) keep confidential the business records and personal details relating to each user and will respect the privacy of users’ personal communications;
(b) take adequate steps to ensure the confidentiality of business records and personal details;
(c) not sell or exchange the business records or personal details of a user other than to another Code Subscriber as part of the sale of the Code Subscriber’s business as a going concern;
(d) refrain from intentionally examining or tampering with a user’s private content without the express prior consent of the user.
8.2 Clause 8.1 does not prevent disclosure of information with the express or implied consent of the user or as required by law. Nothing in this Code in any way releases a Code Subscriber from more onerous secrecy obligations imposed by statute or contract or equity, or other industry code of practice to which they may be bound.
9. COLLECTION AND USE OF USER DETAILS
9.1 Code Subscribers will collect details relating to a user only:
(a) these are is relevant and necessary for the provision of the service or product that the Code Subscriber is engaged to provide, or
(b) for other legitimate purposes made known to the user prior to the time the details are collected.
9.2 Code Subscribers will use details relating to a user only for:
(a) the Code Subscriber’s own marketing, billing and other purposes necessary for the provision of the service, or
(b) purposes made known to the user prior to the time the details are collected, or
(c) other purposes with the prior consent of the user.
9.3 Code Subscribers will take reasonable steps, having regard to the nature of the information, to ensure that information collected in relation to a user:
(a) to the extent that it comprises business records or personal details, can be checked by a user.
(b) is accurate, and if necessary, kept up to date.
(c) if inaccurate, is erased or rectified.
9.4 In this part of the Code, references to the collection of details include collection of details by active request or inquiry and collection of details by passive recording of actions or activity.
10. CONDUCT OF CONTENT PROVIDERS
10.1 Code Subscriber Content Providers will not knowingly place Illegal Content on the Internet or allow Illegal Content to remain on the Internet.
10.2 Code Subscriber Content Providers will, where technically feasible, ensure that services which provide Unsuitable Content are:
(a) segregated and have clearly identifiable labels which can be recognised by filter software or technologies;
(b) accompanied by suitable on screen warnings on a Web Page which appears to the user before the content can be viewed; and
(c) managed by subscription enrolments to exclude under age subscribers.
10.3 A Code Subscriber Content Provider shall have complied with 10.1 if on being advised by a Relevant Authority that Illegal Content exists or remains at a Web Site or other content database within its control, it removes the Illegal Content.
10.4 Code Subscribers Content Providers will take reasonable steps to ensure that services which provide content will support appropriate ratings technologies and are encouraged to classify and label content in accordance with the system or systems recommended by the Administrative Council.
10.5 Code Subscriber Content Providers will not:
(a) knowingly place material in infringement of copyright on the Internet; or
(b) knowingly allow material in infringement of copyright to remain on the Internet, except to the extent that its removal is not technically feasible.
11. CONDUCT OF VENDORS
11.1 Code Subscriber Vendors will, before a sale or agreement to sell is concluded on the Internet, advise the user:
(a) if, according to guidelines published by the Administrative Council, the method of payment chosen by the user is not considered secure.
(b) the refund or exchange policy applicable to the sale.
(c) of the legal jurisdiction which applies to the sale.
11.2 In relation to sales of products on the Internet, Code Subscriber Vendors will make the following information available to the user, before a sale or agreement to sell is concluded:
11.3 In relation to sale of software on the Internet to be delivered using the Internet, Code Subscriber Vendors will make available to the user, before a sale or agreement to sell is concluded:
(a) the terms of the software licence agreement.
(b) a specification of the size of the program and the operating system and equipment required to run it efficiently.
11.4 In relation to sale of content on the Internet to be delivered using the Internet, Code Subscriber Vendors will advise the user, before a sale or agreement to sell is concluded:
(a) particulars of the content that will be provided including:
(b) any restrictions that will apply to the user’s right to use the content that is downloaded.
(c) the operating system and equipment required to view or otherwise use the content.
12. GENERAL CONDUCT OF ISPs
12.1 Code Subscriber ISPs will make available to each user:
(a) a copy of this Code of Practice upon request.
(b) a copy of rules identifying unacceptable posting or conduct that may lead to removal of the unacceptable content, suspension or cancellation of the users account or prosecution by the authorities in Australia as published by the Administrative Council from time to time.
(c) information on how to resolve any difficulties which might arise with the product or service of the Code Subscriber.
12.2 Code Subscriber ISPs will comply with the Prices, Terms and Conditions Code of Practice as developed by the Australian Communications Industry Forum.
12.3 A Code Subscriber ISP will agree with each user at the time of engagement:
(a) the extent of information that the user will receive regarding the basis of each charge made by the ISP to the user.
(b) the procedure for seeking information regarding, or a review of, any account issued.
(c) the extent of telephone or other advice and support which will be provided and the applicable cost.
(d) an Acknowledgment that the Code Subscriber ISP must comply with this Code and that the user must not do any act or make any omission which would put the Code Subscriber ISP in breach of this Code.
(e) the basis on which the user may terminate the service.
(f) the arrangements for transfer of service that will apply if the service is cancelled at any time.
12.4 Code Subscribers who host Web Sites will ensure that the user is informed at the time of engagement that the user should obtain advice regarding the user’s potential liability for the consequences of the publication of material on the Web Site.
13. CONTENT CLASSIFICATION AND SELECTION
13.1 Code Subscriber ISPs will encourage those of their users who are Content Providers to use appropriate labelling systems as recommended by the Administration Council from time to time on:
(a) all Web Sites and other content databases which the Code Subscriber hosts; and
(b) all of the Code Subscriber’s Web Sites and other content databases.
13.2 Code Subscriber ISPs will take reasonable steps to prevent users of their service from placing on the Internet, obtaining through the Internet or transmitting using the Internet, Illegal Content.
13.3 A Code Subscriber ISP shall have complied with 13.2 if:
(a) it has informed its users that they must not place on the Internet, obtain or transmit Illegal Content.
(b) when it becomes aware that a user has placed on the Internet, obtained through the Internet or transmitted using the Internet material which is alleged to be Illegal Content and that material remains at a Web Site or other content database within its control it:
14. CONDUCT OF WEB PAGE DEVELOPERS AND PROGRAMMERS
Code Subscriber Web Page Developers and Programmers will:
(a) ensure that the ownership of the copyright in, or
(b) the terms of the client’s licence to use,
any work created for a user is agreed with each client of the Web Page Developer or Programmer before work is commenced.
15. ADMINISTRATIVE COUNCIL
15.1 The Administrative Council shall be made up of 5 members as follows:
(a) an independent chairperson nominated by the Federal Minister for Communications, the Information Economy and the Arts.
(b) two representatives from the Internet industry nominated by the Board of IIA.
(c) a user representative nominated by a user representative organisation [to be determined].
(d) a lawyer admitted to practice and holding an unrestricted practising certificate in a state of Australia nominated by the Board of the IIA.
15.2 Each person appointed to the Administrative Council shall hold office from the date of his or her appointment and retire as follows:
(a) the chairperson will hold office for 2 years and may be reappointed for up to 3 terms.
(b) one of the representatives nominated by the Board of IIA (chosen by lot), and the user nominee will retire on 30 June of years ending with an even number.
(c) the second representative nominated by the Board of IIA, and the lawyer nominee will retire on 30 June of years ending with an odd number.
15.3 A person appointed to the Administrative Council whose term expires is eligible for reappointment.
15.4 The Administrative Council will:
(a) meet at least once every 3 calendar months.
(b) review and monitor the effectiveness of the Code by:
(c) advise and produce an annual report on:
(d) obtain from the Internet industry adequate finance for administration of the Code and preparation of budgets and financial reports.
(e) report to the relevant authorities any matters which come to its attention which in its opinion may be breaches of the law.
15.5 The Administrative Council may recommend amendments of the Code on request or by its own initiative.
15.6 To amend the Code the Administrative Council must complete the following steps:
(a) consult with industry, government and user representatives regarding the proposed amendment.
(b) resolve the terms of any proposed amendment.
(c) give notice of the terms of the proposed amendment to each Code Subscriber.
(d) allow 60 days to provide comments to the Administrative Council.
(e) receive comments from Code Subscribers.
(f) adopt or reject the proposed amendment with or without modifications (not including modifications which would make the substance of the proposed amendment substantively different to the substance originally proposed).
(g) obtain the approval of the Board of IIA.
(h) give notice of the Code as amended to each Code Subscriber.
15.7 Amendments to the Code will come into effect 45 days after completion of the step described in clause 15.6 (h).
15.8 The Administrative Council shall be funded by:
(a) an annual registration fee to be set by the Administrative Council and paid by Code Subscribers; and
(b) sponsorship.
15.9 The Administrative Council will maintain its own bank account and financial records.
15.10 Each member of the Administrative Council is indemnified from the funds of the Administrative Council against any liability they may incur or claim that might be made against them arising from the performance in good faith of their duties of office.
15.11 Code Subscribers agree and each person lodging a complaint under the Code must agree not to make any claim or commence any action against IIA, the Administrative Council or any of its members in relation to any matter related to their complaint.
16. HANDLING OF DIFFICULTIES AND COMPLAINTS
16.1 Code Subscribers will use reasonable endeavours to resolve all user difficulties and complaints of their respective users:
(a) notified in person, during the personal attendance.
(b) received by telephone during the initial call.
(c) received by email, within 3 working days.
(d) received by letter, within 10 working days.
16.2 Where complaints cannot be resolved to the satisfaction of the user within the time frame set out in subclause 16.1, Code Subscribers will:
(a) direct the user to a Relevant Authority with the statutory jurisdiction to resolve the complaint; or where no such body exists,
(b) inform each user who expresses dissatisfaction with the response of the Code Subscriber to a difficulty or complaint that they may ask for the matter ("dispute") to be mediated pursuant to this Code.
16.3 If a user asks for a dispute to be mediated pursuant to this Code:
(a) the chief executive officer of the Code Subscriber or his or her delegate will ask the user to set out the basis of the dispute in writing and provide it to the Code Subscriber.
(b) if the user is not receiving a service from the Code Subscriber because of the dispute, the Code Subscriber will reinstate the service for the period of the mediation, provided that the user pays the Code Subscribers usual fee for the relevant service in full and in advance.
(b) the Code Subscriber will consider the user’s written submission and, if it cannot settle the matter, will:
(c) the Chairperson of the Administrative Council will appoint a mediator, acceptable to both parties, to conduct a mediation.
(d) unless the parties agree otherwise, the mediator must set a time and a place, reasonably convenient to both parties of the conduct of a mediation
(e) the reasonable costs of the mediation will be borne equally by the parties to the dispute. The other costs of either party, including legal costs, if any, shall be paid by the party incurring the cost.
16.4 If resolution of the dispute is not achieved by the process described in clause 16.3, either party may seek alternative legal remedies.
17. REGISTRATION AND DEREGISTRATION UNDER THE CODE
17.1 Code Subscribers are required to be current financial members of the IIA or appropriately affiliated organisations of the IIA and, subject to clause 17.7, only Code Subscribers shall be permitted to use the Code Compliance Symbol.
17.3 The Administrative Council shall make a list of Code Subscribers available for public inspection on the Internet.
17.4 The chairperson of the Administrative Council will, in person or by his or her delegate, investigate any report that a Code Subscriber is not complying with the Code. If the chairperson is satisfied after due investigation that the Code Subscriber is not complying with the Code the chairperson will:
(a) inform the Code Subscriber.
(b) require the Code Subscriber to comply with the Code within 30 days and to continue to comply with the Code thereafter.
In addition the chairperson may issue a censure or warning to the Code Subscriber, require that the Code Subscriber issue a corrective letter, or engage in corrective advertising, in a suitable case the chairperson may require withdrawal of advertisements, or the payment of compensation.
17.5 If the Code Subscriber fails to abide by the chairperson’s notice issued under 17.4(b) the chairperson shall seek resolution from the Administrative Council that the Code Subscriber cease to have permission:
(a) to use the Code Compliance Symbol, and
(b) to represent in any way that it complies with, or its conduct is approved by, the Code.
17.6 A Code Subscriber considered by the Administrative Council under clause 17.5 will be afforded an opportunity to be heard by the Administrative Council before a decision is made on the resolution sought by the chairperson.
17.7 If a resolution sought by the chairperson of the Administrative Council under clause 17.5 is carried, the Code Subscriber must immediately:
(a) notify its Users that it has ceased to be a Code Subscriber,
(b) stop using the Code Compliance Symbol, and
(c) make no further representation that it complies with the Code.
17.8 In subscribing to this Code, Code Subscribers agree to be bound by its provisions and acknowledge that failure to comply with clause 17.7 may render them liable for legal action, which may be instituted by the IIA on behalf, and on the recommendation, of the Administrative Council.
17.9 An organisation or person denied use of the Code Compliance Symbol under clause 17.5 may apply in writing to the Administrative Council to be permitted to use the Code Compliance Symbol again ("reinstatement") after 12 months from the date of removal.
17.10 No application for reinstatement under clause 17.8 shall be reasonably refused provided the applicant satisfies the Administrative Council that it is willing to comply with the Code, and has adequate procedures in place and has taken all reasonable steps to ensure that is capable of complying with the Code.
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