In review: media law in Australia

An extract from The Technology, Media and Telecommunications Review, 12th Edition

Media

Australian content and commercial television is regulated by the Broadcasting Services Act 1992 and the Online Safety Act 2021. The ACMA is responsible for administering the Broadcasting Services (Australian Content in Advertising) Standard 2018, which applies to commercial free-to-air television licence holders. These standards do not apply to cable television providers or online content distributors such as VOD platforms. The ACMA also administers the Classification (Publications, Films and Computer Games) Act 1995, and sets the Guidelines for Classification of Films and Computer Games that are used by the Classification Board to classify content. Content is assessed based on six classifiable elements and assigned a rating to reflect its likely impact on different viewers. Although technically some online content is considered classifiable, historically classification obligations are not enforced against online providers. The broadcasting of children's programme content is also regulated by the Children's Television Standards 2009, which sets quotas for children's and preschool children's programmes and restrictions of advertising during such programming.⁴⁹

The Broadcasting Services (Australian Content) Standard 2016 provides that 55 per cent of broadcast transmission between 6am and midnight must be Australian programming, with sub-quotas for drama, documentaries and children's programmes. The Broadcasting Services (Australian Content in Advertising) Standard 2018, requires that at least 80 per cent of advertising time be used for Australian-produced advertisements.

For radio, under the Commercial Radio Code of Practice and Guidelines 2017, a minimum amount of Australian music content (between 5 to 25 per cent depending on the type of content) is required to be broadcast by commercial radio licensees between 6am and midnight each day. Certain formats of service, such as open-line, news, talk and sport content, are excluded from this requirement. Additionally, radio broadcasters must disclose commercial or other arrangements, such as sponsorships, that could affect reporting of current affairs under the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012.

The ACMA also administers the new rules introduced by the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017, which increased the minimum requirements for broadcasting material of local significance applying to commercial television networks covering more than 75 per cent of Australia's population. These new requirements commenced on 17 April 2018 and requires the following licence holders to broadcast minimum amounts of 'material of local significance':

1. regional commercial broadcasters in the licence areas of Northern NSW, Southern NSW, Regional Victoria, Regional Queensland, and Tasmania;
2. licence holders in five aggregated markets in Regional Queensland, Northern New South Wales, Southern New South Wales, Regional Victoria, and Tasmania; and
3. a licence holder affected by a 'trigger event' in a non-aggregated market.⁵⁰

The Broadcasting Services Amendment (Regional Commercial Radio and Other Measures) Act 2020 came into force on 21 June 2020 and relaxes some of the elements of the local content obligations by deeming a licensee in a regional or remote licence area, who is unable to meet the multi-channel quota of 1,460 hours in a particular year, to have met the requirement for that year if the amount of Australian content broadcast by the licensee on their multi-channel(s) during that year is not less than the amount of Australian content broadcast on the equivalent metropolitan multi-channel(s) during the same year.⁵¹ In addition, the Act aims to provide greater flexibility to commercial radio broadcasting licensees by allowing regional commercial broadcasting licensees to split exemption periods from local news and information content obligations into two periods, together totalling no more than five weeks.

The government identified Australian content obligations as another key issue it would focus on and released the ACMA and Screen Australia's Supporting Australian Stories on Our Screen – Options Paper for consultation on 15 April 2020. The Options Paper considers government intervention and support options for Australian content across commercial free-to-air television, subscription television and online streaming services that distribute curated or commissioned video content to Australian consumers, ranging from minimal to significant changes to the existing regulatory and funding arrangements and deregulation. At the time of writing, a final report has not been published.

An amendment to the Classification (Publications, Films and Computer Games) Act 1995 was enacted in September 2014 that allowed classification bodies to authorise the use of automated classification tools for certain content. This makes obtaining a classification significantly cheaper and easier. When this amendment was being considered, legislators expressed the hope that this would lead to increased classification rates for apps and online content.

Advertising restrictions are enforced by both the ACMA and the Advertising Standards Bureau. The Advertising Standards Bureau administers several industry- and target-audience-specific codes of practice (such as the Commercial Radio Code of Practice and Guidelines 2017 and the Commercial Television Industry Code of Practice 2015), including advertising codes applicable to children, food and beverages and environmental claims. The ACMA also administers a number of codes of practice applying to commercial free-to-air TV, radio, pay-TV and online services that prohibit gambling advertisements during the broadcast of live sports between 5am and 8.30pm and otherwise restrict gambling advertising during the broadcast of live sports at other times of day. These codes of conduct came into effect on 30 March 2018, except for the code of conduct applying to online services, which came into effect on 28 September 2018.

An amendment to the Copyright Act 1976 was introduced in 2015 to allow a party to apply to the Federal Court to grant an injunction to require a carriage service provider to take reasonable steps to disable access to a website where the primary purpose of that website is to infringe, or to facilitate the infringement of, copyright. There has been continued action by content owners requiring ISPs to block websites in Australia that host content infringing on copyrights since the introduction of these provisions in 2015. According to the Site Blocking Efficacy: Australia Report released in February 2018, site blocking laws in Australia have resulted in a 53.4 per cent reduction in usage of blocked sites since the blocking regime began. In February 2018, the Department for Communications and the Arts announced its review of the Copyright Amendment (Online Infringement) Act 2015, including the effectiveness and efficiency of the mechanisms and processes of the site blocking laws.⁵² The Copyright Amendment (Online Infringement) Act 2018 came into force on 11 December 2018, and amended (amongst other things) the threshold for capturing overseas online locations to those with the primary purpose or effect of infringing copyright; reducing the evidentiary burden on copyright owners; providing courts with the power to order search engines to demote or remove search results for infringing sites; and enabling the minister to declare that particular online search engine providers be exempt from the scheme. As a result of these amendments, copyright owners have greater options to fight piracy, including by seeking injunctions against a broader range of infringing websites and search engines and the ability to block proxy and mirror sites that reproduce this content.

In March 2018, the Department of Communications and the Arts commenced consultation on the Copyright Modernisation Review, the result of copyright reform options recommended by the Productivity Commission Inquiry into Australia's Intellectual Property Arrangements. The focus of the review was to consider whether there is general support for the modernisation of the Copyright Act given the impact of the digital world when creating, accessing and distributing copyright material, including whether defences should be expanded to apply in the technology sphere by introducing a fair dealing defence for incidental or technical use and protection for text and data mining. A final report has not yet been released.

In the past few years, traditional broadcasters have been launching online services, including catch-up television and VOD offerings. At present, these services still complement rather than replace free-to-air broadcasts, so there is minimal disadvantage to consumers without internet access.

The communications sector market study issues paper released in September 2016 identified the popularity of streamed video content as a significant driver of demand for data services, and flags this as a factor for consideration when assessing the need and incentive for investment to improve data availability. The issues paper noted that video accounted for around 69 per cent of all internet traffic in Australia in 2015, and was expected to increase to 82 per cent by 2020. New and emerging applications, including ultra high-definition video (4K and 8K), 360 video or augmented or virtual reality games, are also expected to increase in popularity in Australia, placing further constraints on data. Although it is expected that advanced video compression techniques may provide some relief.

In April 2018, the ACCC released its final report for the communications sector market study and noted that while OTT services bring benefits to fixed and mobile broadband service providers in terms of increasing demand for access and data, service providers may face a relative decline in revenue as OTT content services capture larger proportions of consumers' spend. The ACCC notes that as a result, broadband service providers continue to acquire and distribute content both to recapture value from OTT providers and to differentiate their service offerings from other broadband service providers and mobile service providers. Traditional content providers, such as Foxtel, have also continued to acquire exclusive rights for premium sports and other content to maintain their audience and advertisement shares and have sought to utilise OTT distribution to expand their reach across increasingly fragmented audiences, though the significant losses recently incurred by Foxtel are expected to lead to a significant reduction in expenditure on this type of content.

In December 2019, the Department of Communications and the Arts commenced consultation on a new Online Safety Act. The proposed reforms follow the 2018 review of Australia's online safety legislation, which recommended the replacing the existing framework (encompassing the Enhancing Online Safety Act 2015 and Schedules 5 and 7 to the Broadcasting Services Act) with a single Online Safety Act. The proposed reforms would extend online safety schemes to apply consistently across different types of online services providers (including social media services, instant messaging services, interactive online games, websites, and apps, and Internet Service Providers, among others).

In June 2021, the Australian Government enacted the Online Safety Act 2021 to give effect to the proposed reforms. The Act introduces a number of key changes, including:

1. the introduction of a basic online safety expectations framework under which the Minister may determine basic online safety expectations for social media services, relevant electronic services and designated internet services. A determination for basic online safety expectations must include standards for the safe use of the relevant service, including a requirement to take reasonable steps to control the content type and access to certain content, implement technologies to protect minors, and to provide clear and readily identifiable mechanisms to enable end-users to report and make complaints about a range of materials, such as cyberbullying, non-consensual sharing of intimate images, abhorrent violent material and other prohibited and classified materials; and
2. the introduction and harmonisation of the Online Content Scheme, establishing a framework for the take-down of contravening materials, and which largely replicates the online content scheme in Schedules 5 and 7 to the Broadcasting Services Act 1992. The Online Safety Commissioner is responsible for administering the Online Content Scheme and may issue removal, remediation, link deletion, and app removal notices to providers of social media services, electronic services, designated internet services or hosting services.

In response to the failure by technology companies to remove the content (including video and livestreaming) associated with the Christchurch terrorist attack, in April 2019 the government enacted the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act. The Act imposes new obligations:

1. on ISPs, content and hosting service providers to notify the Australian Federal Police of the existence or accessibility of abhorrent violent material through its services; and
2. on content and hosting service providers to expeditiously remove or cease to host abhorrent violent material.

The Online Safety Act 2021 also enables the Commissioner to request or require an internet service provider to block access to domain names, URLs or IP addresses containing material that depicts, promotes, incites or instructs abhorrent violent conduct.

Breaches of these obligations are criminal offences attracting significant penalties. In particular, a failure to expeditiously remove or cease to host abhorrent violent material can lead to up to three years' imprisonment and fine of up to A$2.1 million for an individual, or a fine of up to A$10.5 million or 10 per cent of annual turnover (whichever is greater) for a corporation.

While some ISPs voluntarily blocked websites that streamed or hosted footage of the Christchurch terrorist attack, the eSafety Commission exercised its powers⁵³ in September 2019, by directing ISPs to block eight websites that were still hosting footage of the attack. This followed a government-convened task force (including ISPs and digital platforms representatives) and the establishment of an Australian Taskforce to Combat Terrorist and Extreme Violent Material Online (the Australian Taskforce), which called for legislative amendments to establish a content blocking framework for terrorist and extreme violent material online in crisis events. On 30 June 2019, the Australian Taskforce released a report providing advice and identifying actions and nine key recommendations,⁵⁴ consistent with the Christchurch Call to Action, for governments and industry to combat terrorist and extreme violent material online.

On 30 September 2020, the government announced its initial measures to modernise the media regulatory framework, including a new reporting requirement on large video streaming services, which would require these services to report their content acquisition to the ACMA from 1 January 2021.⁵⁵ In December 2020, the then Minister for Communications requested Netflix, Stan, Amazon and Disney to voluntarily report their content acquisition to the ACMA. On 13 August 2021, the ACMA published the spending by subscription video on demand providers for the period of 2019–2020, revealing that these providers spent A$153 million during the 2019–2020 financial year on Australian programmes.⁵⁶

As noted earlier, there is no net neutrality regulation in Australia, meaning that ISPs are able to reach arrangements that allow them to control, and be compensated for, content transmitted over their networks.

On 26 July 2019, the ACCC published its final report on its Digital Platforms Inquiry, which investigated the dominance of the leading digital platforms and their impact across Australia's economy, media and society. The final report concluded that Google and Facebook have substantial market power and made 23 recommendations, including recommending changes to Australia's merger laws, changes to search engine and internet browser defaults, that a specialist digital platforms branch be established within the ACCC to investigate, monitor and take enforcement against anticompetitive conduct and consumer harm caused by digital platforms, the strengthening of Australia's privacy laws and the harmonisation of Australia's media regulatory framework.

On 12 December 2019, the government released its response and implementation roadmap⁵⁷ to the ACCC's Digital Platform Inquiry, which committed to a staged process to reform media regulation towards a platform-neutral framework covering both online and offline delivery of media content to Australian consumers and a voluntary code of conduct to address competition issues and bargaining power concerns between digital platforms and traditional media businesses.

Following the government's release of its response and implementation roadmap, the ACCC commenced developing and negotiating a voluntary code of conduct with Google, Facebook and news media businesses to address their bargaining power imbalance. On 20 April 2020, the government instructed the ACCC to develop a mandatory code of conduct. This followed advice by the ACCC to the government about the limited progress made on the proposed voluntary code of conduct, and the ongoing adverse impact of COVID-19 on news media businesses.

On 31 July 2020, the ACCC released the exposure draft News Media Bargaining Code for consultation.⁵⁸ The proposed News Media Bargaining Code was effected through the enactment of the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Act 2021 which came into force on 3 March 2021. The News Media Bargaining Code allows news media businesses to bargain individually or collectively with Google and Facebook over payment for the inclusion of news on their services, and also sets minimum standards for providing advance notice of changes to algorithmic ranking and presentation of news; appropriately recognising original news content; and providing information about how and when Google and Facebook make available user data collected through users' interactions with news content. The mandatory code applies to digital platforms subject to a determination made by the Treasurer. Under the mandatory code, news media businesses are eligible to participate if they predominantly produce 'core news' published online; adhere to appropriate professional editorial standards; maintain editorial independence from the subjects of their news content; and operate primarily in Australia for the purpose of servicing Australian audiences.