The new Act and online content providers
5.61 The intended application of the obligations under the Classification of Media Content Act in the online environment is complicated because providing content online involves a range of entities and activities. Some of these may need to be expressly excluded from obligations to classify or restrict access to content—essentially because they do not exercise control over media content, but are exclusively engaged with providing services which allow the content to be made available.
5.62 Existing broadcasting and telecommunications legislation uses a range of terms to describe online content and service providers of various kinds and for various purposes—as do other laws relating to media content, in areas such as copyright and defamation. The discussion below, and the associated recommendations, use the following terms:
- Online content provider: provides content that it makes available online through its own website or through an intermediary, such as a content platform.
- Content platform: provides third party content on the internet through its website. An example is the YouTube platform.
- Application service provider: facilitates access to content by indexing, filtering, formatting, but are not themselves content platforms. An example is a search engine, such as Google Search.
- Host provider: hosts websites on a computer server, connecting with the internet and providing storage capacities.
- Internet access provider: provides a service that enables users to access the internet—for example, by connecting the user to the internet via a telecommunications link or otherwise making websites accessible. This includes Telstra, Optus, iiNet, Internode and other providers of internet access.
5.63 These terms are not necessarily intended to be adopted as legislative language and the same entity may fall into two or more of these categories. In particular, it is common for entities to be both online content providers and content platforms. For example, the website YouTube provides both third party content and content created for YouTube itself under commercial and contractual arrangements.
Existing online content obligations
5.64 As noted above, under the Broadcasting Services Act, ‘commercial content service providers’ have classification-related obligations in relation to online content. Such providers operate a content service ‘for profit or as part of a profit making enterprise’, which is ‘provided to the public but only on payment of a fee’.
5.65 Commercial content service providers have obligations to assess online content in accordance with the Internet Industry Code of Practice. Where a commercial content service provider, ‘acting reasonably’, considers that content is substantially likely to be classified as prohibited content or potential prohibited content, it must ensure the content has been assessed before making the content available to end users. In forming a view as to whether content needs to be assessed, a commercial content service provider may have regard, among other things, to: the intended audience of the content service; how the content service is marketed; and the aims of the content service.
5.66 Schedule 7 of the Broadcasting Services Act states that a person does not provide a content service ‘merely because the person supplies a carriage service that enables content to be delivered or accessed’. That is, internet access providers—referred to in the Broadcasting Services Act as ‘internet service providers’ (ISPs)—do not provide a content service and, therefore, do not have any responsibilities to assess content.
5.67 Following the investigation of complaints by the ACMA, ‘hosting services’, ‘live content services’ and ‘links services’ have obligations to respond to ACMA notices under sch 7 of the Broadcasting Services Act. In addition, under sch 5 of the Broadcasting Services Act, ISPs must comply with ACMA ‘access-prevention notices’ in relation to content hosted outside Australia. In practice, this obligation is met by ISPs participating in the ‘designated notification scheme’, under which ISPs are notified of prohibited content and must provide ‘family friendly’ filters. As a result, the laws in question rarely need to be activated.
Obligations under the Act
Content providers and content platforms
5.68 In the online environment, the ALRC considers that content providers and content platforms should have obligations to classify or to restrict access to content. The definition of content provider for these purposes should cover those who provide content to the public, whether or not for profit or payment of a fee.
5.69 In particular, the definition should cover free content without advertising as well as subscription-based content and advertising supported content. The existing definition of a ‘commercial content service provider’ is problematic as it defines the site as commercial on the basis of how it receives revenue—that is, by direct payment by users for access to content, and not by providing free content to users and financing the service by selling advertising space.
5.70 A content provider should be defined to include those who upload media content onto the internet, including professional or commercial content providers, and those uploading user-created content. However, obligations to classify or restrict access to content should not apply to persons uploading content to someone else’s website, other than on a commercial basis. An internet user uploading to a blog or social networking site should have no obligations to formally classify their content. The website owner, however, would have obligations to take reasonable steps to restrict access to R 18+ or X 18+ content, and to respond to take-down notices from the Regulator.
5.71 A distinction may need to be made between content providers and content platforms. While both should have obligations, these should differ to recognise that while some content providers (and content platforms) are in a position to classify content before it is made available to the public, some content platforms should not be expected to do so.
5.72 For example, the Internet Industry Code of Practice makes special provision for content providers (‘commercial content service providers’) who make content available for viewing by end users ‘immediately or soon after it is contributed’—including that uploaded by other end users—where the content does not predominantly consist of ‘prohibited content’ or ‘potential prohibited content’ (as defined under the Broadcasting Services Act); and the content service is not promoted or marketed as making such content available.
5.73 In these circumstances, the commercial content service provider may comply with the obligation to assess content if it ‘takes reasonable steps’ to inform end users that are authorised to upload content as to the applicable restrictions on content and ensure that end users and others are made aware that they may report content; and act reasonably following receipt of a bona fide report to assess the particular content, or act to make it no longer available or placed behind a restricted access system.
5.74 Similar provisions under the Classification of Media Content Act might ensure that content ‘sharing’ websites are not subject to an obligation to pre-classify content. On the other hand, for example, an internet protocol television (IPTV) station providing a finite range of ‘channels’ should have obligations to classify or restrict access to its content before making it available.
Other service providers
5.75 The obligations of application service providers, host providers and internet access providers should be confined to obligations in relation to Prohibited content (as defined under the new Act), including responding to notices from the Regulator where particular enforcement action is required—such as the taking down of content, where the content platform or content provider is located overseas.
5.76 While the ALRC does not make recommendations on exactly how legislative provisions should be drafted to achieve these intended results, the following observations are made.
5.77 First, given that the provision of online content involves a range of entities and activities, it is necessary to clarify which of these are excluded from some obligations. In particular, the legislation needs to minimise impinging upon the principle, discussed in Chapter 4, that Australians should be able to read, hear, see and participate in media of their choice, which includes the right of individuals to participate in the media of their choice, and to be the producers and senders as well as the receivers of information and media content.
5.78 Secondly, obligations that relate to internet access providers concerning content need to be minimised, to enable them to operate with an appropriate degree of legal certainty. One starting point might be a provision, such as that in sch 7 of the Broadcasting Services Act, which provides that a person does not provide content ‘merely because the person supplies a carriage service that enables content to be delivered or accessed’. However, such a definition is narrower than required because it is directed at internet access providers, and would not extend, for example, to host providers or application service providers.
5.79 Another possible starting point might be the activities of ISPs set out in the Copyright Act 1986 (Cth), which provides a ‘safe harbour’ from copyright infringement liability to ‘carriage service providers’ conducting certain activities. That is, the Classification of Media Content Act might provide that an internet access provider does not become subject to classification-related obligations when simply acting as a conduit for internet activities, caching, storing or linking content on the internet.
5.80 Thirdly, it is necessary to distinguish between content platforms and host providers or similar entities that have a role in providing online content, but should not have any obligation to classify or restrict access to that content. One way to do so may be to focus on aspects of control over content.
5.81 An entity that hosts content provided by another content provider and has the right and ability to control how the content is uploaded, generated or displayed should have obligations to classify or restrict access to content. For example, an entity should have obligations when it exercises complete discretion over what kinds of content it will host, requires the hosted content to be displayed in a certain way (for example, with the content platform’s brand) and arranges advertising associated with the content.
5.82 On the other hand, when an entity only hosts websites on a computer server, and imposes minimal obligations with regard to the kind of content being hosted, it could be excluded from obligations to classify or restrict access to content. Some entities, for example, ‘host content that is uploaded by others, and play a minimal, if any, editorial or curatorial role in relation to the uploaded content hosted’.
Recommendation 5–5 The Classification of Media Content Act should provide that a ‘content provider’ includes non-commercial and commercial content providers. However, obligations to classify or restrict access to content would not generally apply to persons uploading content online other than on a commercial basis.
Recommendation 5–6 The Classification of Media Content Act should provide that a ‘content provider’ includes online content providers and content platforms that control how online content is uploaded, generated or displayed; but excludes other internet intermediaries, including application service providers, host providers and internet access providers.
Recommendation 5–7 The Classification of Media Content Act should provide that obligations in relation to Prohibited content apply to content providers and internet intermediaries, including application service providers, host providers and internet access providers.
5.83 Under the Broadcasting Services Act, ISPs are provided with protection from civil proceedings in respect of anything done by them in compliance with a code registered under sch 5, a standard determined by the ACMA, or an access-prevention notice. Hosting service providers, live content service providers and links service providers are protected from civil proceedings in respect of anything done in compliance with rules relating to prohibited content.
5.84 Similar immunity should apply to content providers and internet intermediaries, including application service providers, host providers and internet access providers, in respect of anything done by them in compliance with obligations under the Classification of Media Content Act or industry codes approved by the Regulator.
Recommendation 5–8 The Classification of Media Content Act should provide content providers and internet intermediaries—including application service providers, host providers and internet access providers—with protection from civil proceedings in respect of anything done in compliance with the Act or industry codes approved by the Regulator.
5.85 The current regime for the regulation of online content makes a distinction between content hosted outside Australia, regulated under sch 5 of the Broadcasting Services Act; and content hosted in Australia, regulated under sch 7.
5.86 Schedule 5 refers to internet content ‘hosted outside Australia’. In contrast, under sch 7, the ACMA may only take action in relation to content services that have an ‘Australian connection’. Schedule 7 provides that a content service has an Australian connection if, and only if, any of the content provided by the content service is hosted in Australia; or in the case of a live content service, the live content service is provided from Australia.
5.87 An ACMA research paper published in 2011 noted that the effectiveness of the distinction between local and overseas hosted content is ‘challenged by the recent industry practice of hosting content in the cloud so that its location inside or outside of Australia is not able to be determined’. In this Inquiry, the ACMA also observed that
current distribution models for online content can effectively involve identical content accessed via the same URL being hosted in multiple locations, both in Australia and overseas. Both the take-down of content and ISP blocking are likely to be necessary if the comprehensive prevention of access to this content from within Australia is desired.
5.88 While Commonwealth legislation is normally to be construed as applying only to places, persons and other matters ‘in and of the Commonwealth’, the Commonwealth Parliament has plenary power to make laws with extra-territorial operation. In practice, however, Commonwealth regulatory statutes often include a requirement for an Australian link or connection.
5.89 For example, while the Spam Act 2003 (Cth) states that, unless the contrary intention appears, ‘this Act extends to acts, omissions, matters and things outside Australia’, regulation is focused on commercial electronic messages that have an ‘Australian link’.
5.90 As discussed above, the ALRC anticipates that the Classification of Media Content Act would replace the current scheme for online content regulation under schs 5 and 7 of the Broadcasting Services Act. There seems no sensible rationale, in this context, to limit obligations to classify or restrict access to online content to content ‘hosted in Australia’.
5.91 The Classification of Media Content Act should provide that obligations to classify or restrict access to online content apply to any content with an appropriate Australian link including, but not limited to, content hosted in Australia.
5.92 For example, where an organisation carries on business or activities in Australia involving the provision of online content to Australian consumers, it should have obligations to classify or restrict access to content it controls, even where that content happens to be hosted overseas.
5.93 No such limitation on the extra-territorial operation of the Act should apply to obligations in relation to Prohibited content. The ability of the Regulator to take action to interdict the distribution of Prohibited content depends, among other things, on co-operation with overseas regulators and law enforcement agencies and should not be constrained by territorial limitations.
Recommendation 5–9 The Classification of Media Content Act should provide that obligations to classify or restrict access to online content apply to any content with an appropriate Australian link. This may include content:
(a) hosted in Australia;
(b) controlled by an Australian content provider; or
(c) directed to an Australian audience.
 The term ‘internet access provider’ is used rather than internet service provider (ISP) because the ordinary meaning of the latter term may be understood to include the provision of any internet service, rather than providing access in a technical ‘carriage’ sense.
Broadcasting Services Act 1992 (Cth) sch 7 cls 2, 5.
 As defined under the Broadcasting Services Act: Ibid sch 7 cls 20, 21.
 Internet Industry Association, Internet Industry Code of Practice: Content Services Code for Industry Co-regulation in the Area of Content Services (2008) cl 8.
Broadcasting Services Act 1992 (Cth) sch 7 cl 5(1).
 Ibid sch 7 pt 3 divs 3–5.
 Ibid sch 5 cl 40.
 Internet Industry Association, Internet Industry Codes of Practice: Codes for Industry Co-regulation in Areas of Internet and Mobile Content (2005) cl 19.
 Internet Industry Association, Internet Industry Code of Practice: Content Services Code for Industry Co-regulation in the Area of Content Services (2008) cl 8.5(e).
 Ibid cl 8.5(e)(iv).
Broadcasting Services Act 1992 (Cth) sch 7 cl 5(1).
Copyright Act 1986 (Cth) ss 116AC, 116AD, 116AE, 116AF.
 Google, Submission CI 2512.
Broadcasting Services Act 1992 (Cth) sch 5 cl 88.
 Ibid sch 7 cl 111.
 Ibid sch 7 cl 3.
 Australian Communications and Media Authority, Broken Concepts: The Australian Communications Legislative Landscape (2011), 81.
 Australian Communications and Media Authority, Submission CI 2489.
Acts Interpretation Act 1901 (Cth) s 21(1)(b).
Statute of Westminster 1931 (UK) s 3.
Spam Act 2003 (Cth) s 14.
Spam Act 2003 (Cth) s 7. This section provides that, for the purposes of the Act, a commercial electronic message has an Australian link if, among other things, the message originates in Australia; is sent by an individual who is physically present in Australia or an organisation whose central management and control is in Australia; or the computer, server or device that is used to access the message is located in Australia.