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across sectors and across EU Member States. Computer games-rating,
for example, has the potential for developing into a pan-European
structure. Clear procedures for auditing self-regulatory structures are
required, however.
7.3.17 The Australian co-regulatory scheme is found in the Broadcasting
Services Act, which now addresses risks associated with illegal content
and with content that is unsuitable for children. The scheme is based on
the development of codes of practice by industry and the operation of a
complaints hotline by the Australian Broadcasting Authority (ABA).
The codes, which govern Internet Service Providers and Internet Content
Hosts, were developed by the Internet Industry Association in
consultation with the community, industry and a community advisory
body, NetAlert. The codes apply to all Australian ISPs and ICHs and the
ABA may direct an ISP or ICH to comply; failure to comply with an
ABA direction constitutes an offence under the Broadcasting Services
Act. The codes require such matters as encouraging Content Providers to
use appropriate labelling systems, and providing information to users
about procedures that parents can use to control children’s access to
Internet content through the use of filtering software and labelling
systems. The ISPs themselves are not required to classify or censor
material and are protected from legal action from content providers
whose material has been blocked if they were complying with a code or
an ABA direction. Similarly, ICHs are protected from legal action from
content providers or civil proceedings in respect of anything they have
done in compliance with the code or an ABA direction.
7.3.18 A co-regulatory approach has a number of attractions for Botswana.
There are strong international models, particularly in Europe and
Australia/New Zealand, on which Botswana can rely. Indeed, as noted,
in some cases, it would be possible to adopt or adapt ratings systems that
are already in place, such as those for computer games. A co-regulatory
approach is likely to be more flexible and allow for technological
flexibility, an advantage in an area where convergence and rapid change
are important factors. At the same time, a “softer” regulatory hand may
allow for fuller consideration of the competing values and interests that
are at play in matters of “inappropriate” content. In addition to
preventing, investigating and prosecuting unlawful conduct (such as
exploitation of children or incitement of hatred), society has an interest
in promoting free speech, artistic expression, providing broad access to
information from around the world and domestically, protecting
reasonable expectations of privacy, and supporting legitimate commerce
and personal relationships.