Broadcast Services Act

From EFA.org.au

The Broadcasting Services Act (C’wlth) (“the BSA”) provides a statutory defence to an ISP/ICH who carries/hosts Internet content in Australia and who was not aware that they were carrying/hosting a defamatory publication.

Clause 91(1) of Schedule 5 to the BSA provides that a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:

(i) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host/internet service provider to liability (whether criminal or civil) in respect of hosting/carrying particular internet content in a case where the host/provider was not aware of the nature of the internet content; or
(ii) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host/internet service provider to monitor, make inquiries about, or keep records of, internet content hosted/carried by the host/provider.

The definition of “internet content” in the BSA excludes “ordinary electronic mail”, information that is transmitted in the form of a broadcasting service and information that is not “kept on a data storage device”. Hence, the Clause 91 defence will not be available in cases involving such material, although other defences are available.