Jurisdiction - Australia
News
Australia – The ALRC Releases First Report In 20 Years On Censorship And Classification Laws.

28 October, 2012

 

Legal News & Analysis – Asia Pacific – Australia – TMT

 

In brief

 

  • On 28 February 2012, the Australian Law Reform Commission (the “ALRC“) released a report, entitled Classification – Content Regulation and Convergent Media, containing 57 recommendations relating to seven key areas of reform of Australia’s censorship and classification laws. The last time that the ALRC conducted a review of Australia’s censorship and classification laws was 1991.
  • The ALRC recommends the implementation of a National Classification Scheme to replace the existing Commonwealth, State and Territory classification and censorship schemes. The ALRC recommends that the scheme be implemented through a number of measures, including by enacting new legislation to centralise the regulation of classification and censorship with the Commonwealth and establishing a new regulation.

 

Background

 

On 24 March 2011, former Attorney-General, Robert McClellend, referred a review of Australia’s classification and censorship laws to the ALRC. The terms of reference of the review required the ALRC to determine the extent to which the Classification (Publications, Films and Computer Games) Act 1995 (Cth), schedules 5 and 7 of the Broadcasting Services Act 1992 (Cth) and the Intergovernmental Agreement on Censorship required reform. The ALRC review was the first of its kind since 1991.

 

In conducting its review the ALRC consulted widely, and took into consideration a number of developments associated with an increasingly converging media landscape. Issues considered by the ALRC in their review included the globalisation of media platforms, the rise of user generated content and the increasing connection of Australian households and businesses to high-speed broadband internet.

 

On 28 February 2012, the ALRC concluded its review and released a report entitled Classification – Content Regulation and Convergent Media (the “Report“). The 400 page Report contains 57 recommendations in relation to seven key areas of reform identified by the ALRC. The Report was tabled in Parliament on 1 March 2012.

 

A copy of the Report and a summary of the ALRC recommendations can be accessed on the ALRC website.

 

Recommendations

 

The Report recommends an overhaul of Australian classification and censorship laws by implementing a new National Classification Scheme (the “Scheme“). The seven key features of the Scheme are:

 

  • Commonwealth regulation;
  • a single regulator;
  • co-regulation and industry classification;
  • a classification board to benchmark community standards;
  • platform-neutral regulation;
  • clear limitation of the Scheme to film, television programs and computer games; and
  • a shift in regulatory focus toward restricting adult content.

 

Commonwealth regulation

 

The ALRC recommends that the Scheme be enacted through new legislation entitled the Classification of Media Content Act (the “Act“) pursuant to the legislative powers of the Commonwealth, and not as part of any cooperative scheme across Australian jurisdictions. Currently, the enforcement of classification laws is primarily the responsibility of the States and Territories. The ALRC suggests that the centralisation of regulatory power with the Commonwealth will eliminate the inconsistencies in offence and penalty provisions which exist across jurisdictions. It is proposed that the Act would take the place of all existing classification obligations relating to media content.

 

Single regulator

 

The ALRC recommends that a single regulator (“Regulator“) be established with the primary responsibility of administering the Scheme. It is proposed that the Regulator would be responsible for regulating the Scheme and would perform functions similar to existing regulatory bodies such as the Classification Branch of the Australian Government Attorney General’s Department, the Director of the Classification Board, the Department of Broadband, Communications and the Digital Economy and the Australian Communications and Media Authority.

 

The Regulator’s functions would include:

 

  • encouraging, monitoring and enforcing compliance with the Scheme;
  • handling complaints about the classification of media content;
  • liaising with relevant Australian and overseas media content regulators, classification bodies and law enforcement agencies; and
  • educating the public about the Scheme.

 

Co-regulation and industry classification

 

The ALRC recommends that the Scheme be sufficiently flexible to empower the Regulator to approve the decisions of overseas classification bodies so as to improve the efficiency of the Australian Scheme. This could mean that classification decisions made by approved overseas classification bodies (which are deemed to have equivalent classification standards) will be adopted in Australia by the Regulator and the Classification Board without the need for the content being separately reviewed in Australia.

 

The ALRC proposes that the Regulator should also be empowered to approve industry regulated classification codes. The ALRC suggests that industry regulated classification codes will ensure compliance with the Scheme by particular industries in a way which suits their business models and is responsive to their consumers’ needs. Industry codes could include details such as display requirements for restricted content and policies on complaint handling. The ALRC proposes that the Regulator would provide a critical function in the Scheme by providing oversight of the codes.

 

Role of the Classification Board

 

The ALRC recommends that the Classification Board should be retained as an independent statutory body for making key classification decisions. The Report also recommends that classifications be harmonised across media platforms to eliminate inconsistencies, and proposes a review of classification criteria so that classifications can continue to reflect prevailing community standards.

 

The ALRC recommends that films, for cinema release, and computer games likely to be classified M15+ and above, continue to be classified by the Classification Board even if the media has already been classified by an overseas classification body. The Report also recommends the elimination of the RC (Refused Classification) category and the introduction of a narrower “Prohibited” category. It is recommended that the scope of the Prohibited category be narrowed by the government reviewing its current content prohibitions, including those relating to the depiction of sexual fetishes and the use of proscribed drugs.

 

Platform-neutral regulation

 

The ALRC recommends that the Scheme operate on a platform-neutral basis, eliminating distinctions between media content in an increasingly convergent media landscape. The ALRC also identified that platform-neutral regulation avoids the issue of double handling (ie the requirement to classify similar content on two or more different media platforms).

 

Classification limited to film, television programs and computer games

 

The ALRC recommends that classification under the Scheme should be limited to classification of film, television and computer games as the dominant mediums that Australians demand classification for. Given that the Scheme will operate on a platform neutral basis, classification decisions under the scheme will apply to film, television and computer games whether broadcast and distributed online or through traditional channels, such as the cinema or on DVD. The ALRC recommends that the Scheme should not apply to online user generated content uploaded online for a non-commercial purpose. Further, the ALRC proposes that internet intermediaries, including application service providers, host providers and internet access providers be exempted from the Scheme, excepting any obligations they may have in relation to prohibited content. Restricting access to adult content The ALRC recommends a shift in focus away from “classifying” adult content toward

 

“restricting access” to adult content.

 

The shift in focus is a reflection of the fact that classification is no longer an effective or appropriate means of dealing with adult content given the sheer volume of material on the internet. The ALRC proposes that adult content providers should be required to take “reasonable steps” to restrict access to adult content which is sold, screened, provided online or otherwise distributed to the Australian public. The ALRC notes that the current restricted access systems provided for under Schedule 7 of the Broadcasting Services Act 1992 (Cth) for online content are easily circumvented and may no longer be appropriate. The ALRC proposes that the industry codes, approved and enforced by the Regulator should specify what constitutes “reasonable steps” for restricting access. The ALRC recommends that the restrictions should apply whether or not the adult content is uploaded online for a commercial purpose.

 

Next steps

 

  • The Report and its recommendations are currently being considered by the Standing Council of Law and Justice, a body comprising the Federal, State and Territory ministers responsible for classification and censorship.
  • The Australian government is set to respond to the Report in late 2013.

 

 

 

Leave a Reply

You must be logged in to post a comment.