The Australian Government has now opened the consultation process in its review of Australian classification regulation (Classification Review) with the release of a Discussion Paper (Discussion Paper).

The Classification Review will focus on opportunities to harmonise classification requirements under the National Classification Scheme across different delivery platforms, as well as updating classification criteria, with a report to be provided to the Minister by April 2020.

This alert identifies the key issues addressed in the Discussion Paper and the potential impacts on regulation for businesses operating in the Australian media landscape.

Submissions can be made on the Department of Communications and the Arts website here. The consultation period closes on 19 February 2020.

1. Background

The Classification Review forms part of the Government's response to the recommendations of the Australian Competition and Consumer Commission's (ACCC) Digital Platforms Inquiry Final Report (DPI Report). The Government's response of 12 December last year supported classification reform as part of a broader process to implement a more harmonised media regulatory framework. Our summary of the DPI Report is available here, and our summary of the Government's response to it is here.

The DPI Review was in addition to other more specific reviews of Australian media regulation and the Australian classification scheme over the last decade which also recommended changes to clarify and harmonise classification obligations in Australia including the 2012 Australian Law Reform Commission (ALRC) National Classification Scheme Review (ALRC Review).

The Government announced the Classification Review in December shortly after issuing its response to the DPI Report. The Terms of Reference for the Classification Review are here.

2. What this means for media businesses operating in Australia

This is a unique opportunity for content providers and other interested parties to have their say on the shape of regulation to come in Australia. Organisations in this space should consider whether to make a submission and follow the consultation closely to understand how it is likely to impact them. We summarise the key potential implications below:

(a) Potential for increased regulation

  • Expansion of classifiable content definition: The Discussion Paper proposes that online content such as films and episodic series distributed via various online channels (e.g., online TV-services, commercial video-on-demand services, and digital media storefronts) should be subject to pre-classification requirements.
  • Harmonising classification standards across all delivery formats: The Discussion Paper queries whether, as the ALRC Review previously recommended, films and episodic series (whether broadcast on TV or not) should be subject to a single set of classification categories and subject to the same criteria for all media formats.

(b) Potential for decreased regulation

  • Proposed new framework for self-classification of content across all platforms: The Discussion Paper considers whether the industry could self-classify content across all platforms with oversight from an Australian Government regulator in a similar process to that used by Australian TV broadcasters to self-classify under their respective codes of practice. The Discussion Paper suggests this could be achieved by using either trained staff classifiers or classification tools approved by the relevant regulator.
  • Removal of classification requirement for adult magazines: The Discussion Paper highlights the decreased volume of publications being submitted to the Classification Board in light of the shift to online publishing, and notes the ALRC Review recommendations to remove the classification requirement for adult magazines and replace it with a voluntary, industry-based classification regime.

(c) Proposed streamlined processes

  • Streamlined classification review process: The Discussion Paper proposes three potential options to streamline the current lengthy and costly decision review process of the Review Board under the National Classification Scheme, noting issues of bias and conflicts of interest that could arise in permitting the Classification Board to review its own decisions as previously raised in the ALRC Review. The proposed options include moving the review functions of the Review Board into the Classification Board, into a new regulator or into a separate body.
  • Streamlined classification governance: The Discussion Paper poses the question of whether the current co-operative scheme that implements the National Classification Scheme on a Federal and State/Territory level should be changed in light of the "modern content environment", highlighting the ALRC Review's prior recommendation that the classification, sale, exhibition, advertising and hire of classifiable content should all be regulated at Commonwealth level only. This would require reform to State/Territory legislation, and any such reform would need to be considered and agreed by the respective States/Territories.

(d) Other proposed changes

  • Potential changes to classifiable elements to reflect community standards: The Classification Review seeks views on whether classification guidance on classifiable elements such as themes (including gambling and other social issues), violence, sex, language, drug use and nudity is still appropriate and useful, and/or if it needs to be changed in a particular classification category of content or overall. It also seeks views on whether other classification guidelines remain appropriate. Depending on the consultation outcome, content which incorporates higher levels of horror, violence and other sensitive social themes could be subject to either more or less onerous requirements for classification approval, with subsequent effects on the distribution and advertisement of such content.
  • Retention of aligned classification categories for computer games: Computer games made available in Australia are proposed to continue to be classified using the same categories as for film (except X18+). Submissions are sought more generally on whether classification categories for film and computer games remain appropriate.

The Classification Review consultation period closes on Wednesday, 19 February 2020. A report will then be presented to the Minister for Communications, Cyber Safety and the Arts for consideration. If any code and/or guidelines are to be amended, all Commonwealth, State and Territory classification Ministers must unanimously agree. Australia's States and Territories would also need to assess and agree any change to classification legislation.

4. Related developments

In parallel to this Classification Review, the Australian Government has also launched a consultation for a proposed new Online Safety Act (OSA Consultation), which also makes proposals of relevance to the classification obligations attaching to online content. Despite the Classification Review being limited to the National Classification Scheme, and the Discussion Paper only noting the OSA Consultation in passing, given issues raised in past reviews regarding potential overlap between, and uncertainty surrounding, online content classification obligations under the Broadcasting Services Act 1992 (Cth) and the National Classification Scheme, the interrelationship between these two reviews is of importance. Amongst other things, the OSA Consultation proposes that the eSafety Commissioner should have take-down and other powers in relation to seriously harmful online content, with harmfulness being assessed by the eSafety Commissioner outside the National Classification Scheme. The National Classification Scheme would, however, still play a role in informing the development of industry codes to restrict access to content that would be classified as RC, X18+ or MA15+. Read our alert on this consultation here.

As flagged above, the Government's response to the DPI Report issued on 12 December last year supported classification reform as part of a broader process to implement a more harmonised media regulatory framework. As such, other aspects of the Government's response to the DPI Report recommendation for media regulatory reform will continue to be rolled out in 2020. The Minister has publicly flagged that the next likely step will be the release of an Options Paper on reform of Australian local content obligations in the early part of this year.

For more information on topical digital media regulatory issues, watch The Digital Platforms Review video and listen to accompanying podcasts here.