4. International classification systems

Published on 25 October 2011. Last modified on 18 November 2011.
The ALRC has proposed that feature-length films and television programs produced on a commercial basis, and computer games produced on a commercial basis and likely to be MA 15+ or higher, must be classified using Australian classification guidelines. But should this content need to be classified using Australia's guidelines, if the content has already been classified outside Australia? Which international classification systems should be recognised in Australia, if any? 

 

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Comments (29)

It is desirable that the

Submitted by Amy Hightower on 3 November 2011.
It is desirable that the Australian classification system be interoperable with international systems in similar - i.e. first world western democratic - societies. This is particularly true given that the rapid increase of media convergence and spread of borderless content sharing means that Australians are increasingly reliant on content advisories from overseas sources, particularly the United States and the United Kingdom, whose creative industries and citizens produce the bulk of content we consume nationally. Even when the advisory is not provided by an official source, the unofficial source will often use the official classification system(s) native to that country as a guide. However, the Australian classification system at present - and as proposed - cannot easily recognise the classification systems of other countries save at the lowest, most 'general audience'-friendly end of the scale. We are, it would seem, a prudish, fearful nation in comparison to our peers internationally, particularly where 'adult content' is concerned. For our classification system to be truly interoperable with similar international systems, the classification categories themselves would need to be reformed (and likely liberalised) and renamed, and some classes of content currently illegal would need to be decriminalised (see the below references to the 18 U.S.C. § 2257 that allows the production, publication, sale and screening of material that would be illegal in Australia). Incidentaly, has HTML been disabled? I can't seem to get paragraphing to work.

And in relation to whether AU

Submitted by Irene G on 4 November 2011.
And in relation to whether AU classification system will ever become interoperable with international systems, I'm amazed that the ALRC proposes that publications that are currently legal to sell to adults in all States and Territories (except Qld) become classified X18+ while also specifically stating that the ALRC makes no proposal about whether or not X18+ should be legal to distribute. I'd be quite fascinated to hear how the ALRC justifies such proposal, and associated lack of proposal, as being consistent with the ALRC's legislated obligation to make proposals and recommendations that "do not trespass unduly on personal rights and liberties" and that "are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter" which includes the ICCPR. (Quotes are from para 1.16 of DP77 which quotes s24 of the ALRC Act).

Thank you for your comment.

Submitted by ALRC legal team on 7 November 2011.
Thank you for your comment. The ALRC didn’t mean to suggest that adult magazines should be illegal. Couldn’t those magazines be required to be sold with an X 18+ marking, rather than an ‘Category 1 or 2 - Restricted’ marking, even if comparable films remained illegal to sell?  Whether Australians have a “right” to access pornography is an interesting question, but perhaps not one the ALRC will answer in this inquiry, given our focus on a proposed ‘architecture’ for a new classification scheme.  

But this "right" is in the

Submitted by Lin. on 14 November 2011.
But this "right" is in the first "guiding principle" of the review: "Australians should be able to read, hear, see and participate in media of their choice". Surely the point of having guiding principles is to allow proposed measures to be tested against them, and to require measures which offend against any of the principles to be justified with regard to the other principles. But, as Amy Hightower points out, there is very little evidence of such analysis in the Discussion Paper. This is a shame because most of the DP's proposals for online content regulation would offend against principles 1, 5, 6, 7 and 8 (and not just in relation to pornography - depending on the implementation, they could cause serious problems for Australians trying to produce and publish completely uncontentious material) while doing nothing to advance principles 2, 3 and 4 (because any content that they seek to restrict would simply be available from offshore providers). The only objective that could justify many of them would be that of preventing Australians from producing or publishing certain types of material (without making any practical difference to the availability of such material online!), but the DP does not articulate this as a principle and does not justify any of its proposals in these terms. It's also worth noting that the Commission's interpretation of the first principle makes it basically irrelevant by adding "within the parameters of the law" at the end (DP 4.16; also "within the bounds of the law", quoted approvingly in 4.28). Such a qualified principle may have some relevance in a judicial or law enforcement context where the law is a given, but in the present context it becomes "the law should provide that Australians should be able to read [etc] media of their choice within the parameters of the law", a circular proposition which has no meaningful content as a principle for law reform. Rather, the qualification should be "subject to the other principles", and where a proposed measure generates tension between the principles this should be acknowledged and justified - with reference to the likely real-world effect of the measure, not just to the goal it seeks to achieve.

Australians would have a

Submitted by Irene G on 8 November 2011.
Australians would have a 'right' to access "pornography", at least of the type currently classified X18+, if "Australia" complied with its international obligations. Imo it would be impossible to justify bans on sale, publication, etc (to adults) of such material to the internationally recognised standard of "necessary" that is required to bring such bans with exceptions to Article 19 of the International Covenant on Civil and Political Rights. (Necessary does not mean desirable or helpful for some purpose). Among other things, a claim that such bans are *necessary* for the purpose of one of the permitted exceptions would be ludicrous given Commonwealth law permits such material to be classified and it's lawfully sold in the A.C.T. and no AU government has made it illegal to purchase such material from the A.C.T. by mail order or any other means. Hmm, so it appears Australians do have 'right' to access such material.

Re adult magazines and X18+,

Submitted by Irene G on 8 November 2011.
Re adult magazines and X18+, thanks for info that ALRC didn't mean to suggest magazines becoming illegal. Neither Cat 1R, nor Cat2 R, magazines could be sold with an X18+ marking unless X18+ classification criteria is significantly broadened, and/or significant changes are made to criteria for both R18+ and X18+. Cat 1R criteria, I am 98% sure, is or is very near identical to criteria for R18+. That cannot be ascertained from the current R18+ film guidelines which were massively abbreviated in 2003. However, when the abbreviated film guidelines were issued, the Minister said the standards for what is/isn't permitted in each film category had not changed (and a 2004 OFLC commissioned independent analysis of decisions under old and new guidelines found no changes in standards). A line/phrase comparison of the current Cat 1R publications guidelines (which have not been abbreviated, yet) and the former R18+ film guidelines in effect immediately before the abbreviated version, results in my conclusion that Cat 1R = R18+. Cat 1R can't be marked X18+ for the same reasons that an R18+ film can't be classified X18+. If an attempt is made to move only Cat 1R magazines that concern *solely* sex and nudity into X18+, then those same magazines would still be able to be classified R18+ unless the R18+ film guidelines are changed to prohibit depictions of explicit nudity and implied/"simulated" sexual activity, which would result in some films currently classified R18+ for cinema exhibition becoming Refused Classification, and same re R18+ films on DVD. The question of what to do about markings for Cat 2R magazines is irresolvable unless X18+ guidelines are significantly broadened and X18+ becomes legal to sell everywhere, otherwise some types of Cat 2R magazines would become Refused Classification (e.g. containing consenting adult fetishes that are banned in X18+). This is because of the long held political view that text and static images (except when they're on the Internet) have less impact or something than movies. Therefore what's permitted in Cat 2R publications *on paper* is broader than what's permitted in X18+ films. If some Cat 2R printed magazines were also made available in PDF file format, or as electronic books, they'd be RC because anything in electronic/digital format is deemed to be a "film" under current legislation. In summary, the adult magazine issue cannot be resolved, (in a manner that does *not* result in some currently lawfully distributable content becoming illegal to distribute), unless the ALRC abandons "platform neutrality", or involves itself in classification criteria issues and/or in what is/isn't lawful to sell in States, and makes associated recommendations.

What Irene says above (and I

Submitted by Amy Hightower on 8 November 2011.
What Irene says above (and I must add that I agree completely with her assessment of the situation) is a perfect example of why this review must consider and make recommendations regarding the pointy-end of classification and censorship: criteria and legality. What the ALRC is effectively doing, with the big-picture architecture focus, is applying labels to content without ensuring that they fit the content they attempt to describe, or that the labels themselves are fit for purpose. Any student of taxonomy will tell you that this is extremely bad practice, and, in many respects, the inverse of how functional classification frameworks are built. Can the ALRC actually define what X18+ is, when they propose, even offhandedly, giving certain types of Category 1 & 2 serial publications this rating? Without understanding the X18+ category, how they determine that the content they want to put into it actually fits? Without an examination of the purpose of the X18+ category, how can they be certain it will do what it needs to do? ....................................................................................................................................................... To take another example - proposal 6-5 states that all content that might be RC must be formally classified. Which RC standard is the ALRC proposing to use as the universal standard? Has it considered that there is more than one RC standard? Or that selecting one standard over another will result either in some material currently classified as RC receiving lower ratings or restrictions increasing on access to some material that is currently acceptable? How will the ALRC justify either change? And then there is the requirement that all potentially RC material must be classified, not just that which sold, hired, screened or distributed. Without defining the purpose of the RC category, how can the ALRC possibly justify such a sweeping, onerous requirement, much less the incredible privacy violation it potentially represents? Why should Joe and Jane Blow be obligated to submit their 'home movies' for classification?

Amy writes: "Why should Joe

Submitted by Irene G on 9 November 2011.
Amy writes: "Why should Joe and Jane Blow be obligated to submit their 'home movies' for classification?". A brilliant observation that hadn't dawned on me, although various other "may be RC" "must be classified" had. Far too many ALRC proposals have scary, frightening, ramifications for average, everyday, Australians. (Perhaps DP77 should be classified RC).

Irene G has succinctly

Submitted by Brownbear on 9 November 2011.
Irene G has succinctly expressed my current view on DP77. The document appears to have been put together by a committee with various members writing different sections without any consultation with each other. I would suggest with respect that the ALRC would be best served by requesting an extension from the Government so they can make proper enquiries and reach informed opinions based on these. It can then present its recommendations in an informed logical discussion paper on which the public can make comment.

Question to ALRC: Is an

Submitted by JOT on 10 November 2011.
Question to ALRC: Is an extension of time realistic? Because to some extent I agree with Brownbear. You need more time based on what is currently being proposed.

I admit that I've been

Submitted by Amy Hightower on 10 November 2011.
I admit that I've been increasingly concerned about the timeline here. I've been wondering for a while what the ALRC would do if the discussion paper was reveal to contain serious flaws; how could they rectify, respond and re-solicit feedback within just two months of the discussion paper closing? It lends me to thinking that the proposals in DP 77 are already fairly well set in stone; there's simply no time to enact any meaningful change to them.

Yes, I'm afraid I have to

Submitted by Lin. on 14 November 2011.
Yes, I'm afraid I have to agree with Brownbear, JOT and Amy Hightower. At this stage it's clear that the final report is going to contain either insufficient detail to be useful as a guide to law reform, or substantial new detail that won't have been subject to any kind of public scrutiny. This review really needs an extra few months and at least one more discussion paper. If that can't be arranged, the report should make very clear the limited scope of the review.

It is clear that Australians

Submitted by JOT on 8 November 2011.
It is clear that Australians do *not* have a right to access pornography, whereas, for example, Americans do have a (general) right to access pornography. --- A more interesting question might be ... _should_ Australians have a right to access pornography? Hint: Yes. (-: --- At the risk of putting words into the ALRC's mouth, I think what they might be saying is that the bigger questions are political questions and they see their brief as a narrow legal one. Maybe the ALRC would comment on this specific point. --- But I do agree with Amy Hightower (and others) that the success or failure of a new classification system really depends on these broader political questions. Otherwise we could just leave things the way they are and save everyone some bother.

As to the other point, it

Submitted by Amy Hightower on 8 November 2011.
As to the other point, it would, indeed, be feasible to ban the sale of X18+ material in one format but allow its sale in another. However, this would undermine the very idea of platform-neutral classification the review is attempting promote. Additionally, if recent history is any indicator, I would very happily bet each member of the review board $100 that, were, say, X18+ publications and films initially treated differently in terms of legality of distribution, legislation would be enacted within five years to see one 'brought into line' with the other. The more restricted other.

With all due respect,

Submitted by Amy Hightower on 8 November 2011.
With all due respect, questions like 'do Australians have a right to access pornography?' are absolutely fundamental to any discussion of classification architecture, let alone a classification structure which is intended to continue doubling as a censorship scheme. THIS is intended to be the media classification and censorship framework we use going forward, likely for the next twenty years at least. If *this* is not the time to ask these questions and examine their answers in detail, I ask you: when is? If not now, I suspect the answer will be 'never'. .......... To put it another way, the number one guiding principle of the scheme proposed by the paper is that "Australians should be able to read, hear, see and participate in media of their choice." Yet it is a principle that receives absolutely no support within the body of the discussion paper. While pages are written about restricting access, not one of the forty-odd proposals comprehensively endorses the right of Australians to consume and produce media. I would go so far as to say that not one of those proposals even *tangentially* endorses this principle; the closest it comes is proposal 6-4, and that explicitly avoids any consideration as to whether or not denying access to X18+ material is consistent with the guiding principles previously espoused.

Paragraphing isn't working

Submitted by JOT on 4 November 2011.
Paragraphing isn't working for me either. That does bad things to readability but ...

I doubt there is any o/s

Submitted by Irene G on 2 November 2011.
I doubt there is any o/s system that reliably maps to existing AU classifications, and I do not believe that can be determined by merely comparing published classification guidelines. There is also the issue that in e.g. UK (and possibly elsewhere), the classifier/censor either cuts/edits films or informs the applicant of precisely what must be cut to allow the particular classification (which the AU Classification Board does not do). That presents issues concerning how it could be ensured that content distributed in AU is in fact exactly the same version as was given a particular classification in some other country. Re R18+ and X18+, AU has the most restrictive rules/"guidelines" of any "Western democratic" country, probably because in every other such country a human rights act has been enacted which includes provisions either fully or largely consistent with Art. 19 of the ICCPR. If e.g. the UK "18" classification was able to be used, a more diverse range of films would become available, in Australia, for AU adults to choose to view in cinemas and on DVD, many of which are not currently even submitted to the Classification Board because importers/distributors know or strongly suspect the films would be slapped with "RC" so applications would be a waste of money. (Probably same re UK "R18" films on DVD which is similar to, but less restrictive than, AU X18+). In relation to lower level categories, I think it could result in consumer confusion, because either the recommended age brackets are not identical and/or because I think in most western European countries (e.g. countries where the primary language is not English) classification focuses more on community concerns about violence and material that may encourage racist attitudes, rather than on concerns about nudity and references to and implications of sexual activity. (While the 2008 UK Byron Review did not say that, it did recommend that the PEGI system cease being used in UK for games that would be 12+ or higher, in part because according to the report author/s the system designed for games for all of Europe results in different classifications than would be applied by the BBFC system which is specifically designed to address UK sensitivities, not all of Europe's).

Given that the non Australian

Submitted by David May on 1 November 2011.
Given that the non Australian systems are consistant it would be possible to create a classification conversion system, where by a diverse set of films and games that have been classified in Australia, could be used to guage the range and depth of equivalent classification in other countries with their own systems. this might give us the idea of which need further classification attention, and which would already be fit for our system and be able to be waved through. Under the circumstances I would tend to classify everything or as much as possible, and so a conversion system would help reduce work load. Recent art show problems, showed that if it had a classification there would simply not have been a problem in the first place. Many games have hidden content and may not be evident to casual players. - It would require an official statement by the game creators & publishers of content..

As far as adult content is

Submitted by rob on 25 October 2011.
As far as adult content is concerned this makes a lot of sense. The UK, Canada, Japan, South Africa and New Zealand all have similar standards to Australia's X rating so why make industry pay a second time and chew up Classification Board resources to get the same result? The US and most European countries don't have classification schemes so they wouldn't be included in this.

Er, not really, and

Submitted by Amy Hightower on 3 November 2011.
Er, not really, and *especially* not when it comes to adult content. New Zealand, for example, has nothing really similar to an X18+ rating and is much more selective in what it bans; it has repeatedly, in recent history, allowed the public screening and sale of material banned in Australia. Japan likewise has nothing like an X18+ category, with much of what we'd classify X18+ coming in under an R18+ rating. They also have extremely liberal media laws which allows for the publication and sale of material that would assuredly be classified as illegal in Australia. The UK has an R18+ which is similar to our X18+, but, again, allows for a wider range of content than permissable under the Australian rating.

I think you will find that

Submitted by Fred on 26 October 2011.
I think you will find that the USA does indeed have a classification system. Industry classifies, and I gather they have a complaints system to the FCC and other responsible bodies. It would not be unreasonable to use their classifications rather than the CB reclassify, since if errors are made then the USA Government can and does step in to "correct" the problem if needed. There would need to be be a complaints system in Australia too. Of course Australia would have to accept a more adult/sensible classification attitude in certain areas so that there are not too many differences.

The USA also has a system for

Submitted by Barbara on 3 November 2011.

The USA also has a system for the classification of adult material to ensure compliance with USA Federal regulations regarding the prevention of the depiction of under-age performers (eg: the 18 U.S.C. § 2257 Record-Keeping Requirements Compliance Statements), which require the age of performers to be verified at time of filming (to a standard that is analogous to that used in current Australian law).

Recognizing USC Compliance Statements could streamline the Australian Classification Board's process if used as a first step to determining whether material should be refused classification.

Yes, except that *nothing*

Submitted by JOT on 4 November 2011.
Yes, except that *nothing* should be refused classification. Content could be illegal to access, itself a hypothetical classification, but if it is not illegal to access then it should be classified (and access permitted to adults). --- Does any other country even have the concept of RC?

A major difference between

Submitted by Ell on 3 November 2011.
A major difference between the classification process in Australia and that of the US is that the US system is voluntary and a consumer guide only. The US has never had a government mandated or government run based ratings system.

Recognising USC Compliance

Submitted by Irene G on 3 November 2011.
Recognising USC Compliance Records seems to me unlikely to be of any help to the Classification Board unless significant changes were made to Australian criminal laws. Much material lawfully produced in the USA in compliance with 18 U.S.C. § 2257 is material that is illegal to produce, distribute, possess or access online under various Australian criminal laws (C'th Criminal Code and various State/Territory criminal codes/crimes acts). In USA law, depictions of persons who were in fact 18 or older at the time the depiction was produced are not child sexual abuse/exploitation material. However, under various Australian jurisdiction criminal laws, it depends on whether the person "appears to be" under 18. That includes depictions of adult persons whose general appearance looks like they're under 18, and also depictions of persons who look like they're much older than 18 but are depicted in a childish way, e.g. hair in pigtails, or wearing a school uniform, and so on and on.

Indeed. And given that this

Submitted by Amy Hightower on 3 November 2011.
Indeed. And given that this review has very pointedly elected not to advise on the legality or illegality of material (though one would feel such a consideration is fundamental to any discussion of media censorship)...

To a certain degree we

Submitted by Oliver Yeudall on 25 October 2011.
To a certain degree we already do. Many videogames released in Australia have the PEGI and BBFC ratings on the game disc to save money selling to all PAL regions. Because the aims of different rating systems are similar (informing parents, protecting children ect) they can still provide useful consumer information to Australians. Brand recognition would be one argument for limiting the use of international classification schemes. Fewer ratings could make things less confusing for parents, many of which seem to have trouble with one classification scheme, let alone several. Using a single scheme will reduce confusion. My suggestion is to carry out a seperate study that analyses how these two variables interact. One which determines a good balance between providing lots of information, and too much.

Looking to a globalised world

Submitted by JOT on 25 October 2011.
Looking to a globalised world and specifically the internet this is probably a small step in the right direction of thinking. However rather than overseas classification systems maybe better would be an International Classification System. You aren't going to get countries like, ahem, Saudi Arabia or Iran or China to sign up but maybe some Western democracies could come to a joint, shared, somewhat global system. That would be more efficient. It doesn't make sense to classify active content, like computer games. They should be excluded from this. (Clearly also distributors of computer games will be less concerned about Australian classification than cinemas or TV stations are.)

Without knowing in depth all

Submitted by Fred on 25 October 2011.
Without knowing in depth all the different classification systems used around the world, I do know that they attempt to achieve the same ends as our classification system. That is to inform purchasers prior to purchase the type of content contained therein. I would consider it a reasonable compromise that Australia accept the classification already done overseas and provide education to parent and the public as to the differences. The products are sold on a global basis, why multiply the classification work when it is already done. Of course there should remain a complaints process to the Classification Board if enough of the Australian Public complain. The number should reflect the expected audience size and rule out concerted efforts by any special interest group to complain out a product(s).