Recently, the Australian Law Reform Commission (ALRC) finished a review of Australia's classification laws. This was the first review of its kind in two decades. In that 20-year period, technology has rapidly progressed, making current classification laws somewhat obsolete
The ALRC report, Classification -- Content Regulation and Convergent Media,1 makes a number of recommendations for a national classification scheme in the new media landscape.
Problems with the current framework
We live in a society of ever-changing media technologies, platforms and services. As more media is being accessed from the home through high-speed broadband networks, it increases the exposure of children to a wider variety of media -- including television, music, films, computer games and advertising. The current Classification (Publications, Films and Computer Games) Act 1995 (Cth), which regulates the distribution of media, has been described as "an analogue piece of legislation in a digital world". This current classification scheme does not deal adequately with the challenges of ever-changing media technologies and the volume of media content now available to Australians. However, the ALRC does recognise that it is "not practically possible in a digital age to classify everything".
Among the problems identified in the ALRC report were:
- inadequate regulatory response to changes in technology and community expectations;
- lack of clarity about whether films and computer games distributed online must be classified;
- "double handling" of media content, with films and television programs being classified twice for different formats (such as 2D and 3D) and different platforms (such as broadcast television and DVD);
- concerns that the scope of the Refused Classification category (likely to be renamed Prohibited Classification) is too broad, and that too much content is prohibited online -- including some content that may not be prohibited in other formats, such as magazines;
- inconsistent state and territory laws concerning restrictions and prohibitions on the sale of certain media content, such as sexually explicit films and magazines;
- low compliance with classification laws in some industries, particularly the adult industry, and correspondingly low enforcement; and
- the need to clarify the responsibilities of the Classification Board and the Australian Communications and Media Authority (ACMA) and other Australian government agencies and departments involved with classification and media content regulation.
New classification scheme
The ALRC report makes 57 recommendations for a national classification scheme. In relation to the new scheme, ALRC President Professor Rosalind Croucher has said: "The ALRC has recommended a balanced approach, recognising that it is not practically possible in a digital age to classify everything ... The scheme needs to be flexible, so it can adapt to new technologies and the challenges of media convergence." It is important that the classification criteria are reviewed periodically to ensure that they reflect community standards.
The key features of the new scheme in the ALRC's report are as follows.
- Platform-neutral recognition: one set of laws establishing obligations to classify or restrict access to content across media platforms.
- Clear scope of what must be classified: feature films and television programs, as well as computer games likely to be MA 15+ or higher, that are both made and distributed on a commercial basis, and likely to have a significant Australian audience.
- A shift in regulatory focus to restricting access to adult content, by imposing new obligations on content providers to take reasonable steps to restrict access to adult content and to promote cyber-safety.
- Co-regulation and industry classification, with more industry classification of content and industry development of classification codes, but subject to regulatory oversight.
- Classification Board benchmarking and community standards, with a clear role for the Classification Board in making independent classification decisions that reflect community standards.
- An Australian government scheme that replaces the current cooperative scheme with enforcement under Commonwealth law.
- A single regulator with primary responsibility for regulating the new scheme.
The key statutory obligations under the ALRC's new proposed laws are as follows.
- The classification obligationContent providers must classify and mark content of feature films and television programs, as well as computer games likely to be MA 15+ or higher, that are both made and distributed on a commercial basis, and likely to have a significant Australian audience.For some, complying will mean not distributing content unless someone else (such as a distributor) has had it classified.
- The restrict access obligationContent providers must take reasonable steps to restrict access to "adult content". The reasonable steps will vary, depending on the content and the content provider.This obligation applies to both commercial and non-commercial content.
- The Prohibited content obligationContent providers and internet intermediaries are not to distribute Prohibited content, including content that is likely to be classified as Prohibited. Prohibited content includes films that exceed the R 18+ and X 18+ classifications and computer games that exceed the MA 15+ classification. Content will be Prohibited if it contains certain depictions of crime or violence, sex and drug use.This will involve identifying, or taking reasonable steps to identify, Prohibited content, and responding to notices from the regulator.
Effect of the recommendations
The effect of the ALRC's recommendations is the establishment of a new National Classification Scheme that:
- applies consistent rules to content that are sufficiently flexible to be adaptive to technological change;
- places a regulatory focus on restricting access to adult content, promoting cyber-safety and the protection of children from inappropriate content;
- promotes industry co-regulation, encouraging greater industry content classification, with government regulation more directly focused on content of higher community concern;
- provides for pragmatic regulatory oversight to meet community expectations and safeguard community standards;
- reduces the overall regulatory burden on media content industries while ensuring that content obligations are focused on what Australians most expect to be classified; and
- harmonises classification laws across Australia.
As media technologies continually develop at a rapid speed, it will be interesting to see which of the ALRC's recommendations come to fruition. Regardless of when the reforms come into play, one thing is for certain: the reforms will need to be flexible, so that they can be applied to new technologies and the ever-changing media landscape.
This article was first published in Internet Law Bulletin, 2012, Vol 15 Issue 7.