10.63 This section provides an overview of some of the key methods of restricting access, online and offline, to adult content. While the new Act should provide for essential requirements for restricting access, the various ‘reasonable steps’ that different types of content provider might be expected to take should be prescribed in industry codes, approved and enforced by the Regulator, and in standards, issued and enforced by the Regulator.
10.64 These codes and declarations might be developed for different types of content, content providers and industries, but could include:
- how and where to advertise, package and display hardcopy adult content;
- the promotion of parental locks and user-based computer filters;
- how to confirm the age of persons accessing adult content online; and
- how to provide warnings online.
Industry codes or legislation?
10.65 The ALRC recommends that methods of restricting access to adult content should be set out in industry codes, rather than in the new Act. One stakeholder expressed concern that providing for access restrictions in industry codes may mean the codes serve the interests of industry, and not the Australian people:
Whereas people can attempt to influence the law, there may be little or no means of influencing industry participants. The process of public debate is far better developed in the political sphere than in the commercial sphere.
10.66 However, most stakeholders who addressed this point agreed that industry codes were the appropriate mechanism. Methods of restricting access have a number of commercial and technical complexities. New technologies to restrict access without compromising privacy or safety may also be developed in time. Free TV Australia submitted that industry codes are the appropriate mechanism for restricting access to adult media content:
Such a system has worked effectively in the commercial television free-to-air industry. The inclusion of such matters in industry codes means that each industry can apply the relevant high level principles in a way that is practical, effective and commercially viable.
10.67 Accordingly, the ALRC recommends that methods of restricting access are best placed in industry codes, approved and enforced by the Regulator, and standards, issued and enforced by the Regulator. These should be regularly reviewed and updated to account for developments in technology.
Restricting access offline
10.68 State and territory laws provide that it is an offence to sell or hire adult films and publications to minors. There are also laws relating to how this content—particularly sexually explicit magazines—may be packaged and displayed. For example, in NSW, a publication classified Category 2 Restricted must not be:
(a) displayed except in a restricted publications area, or
(b) delivered to a person who has not made a direct request for the publication, or
(c) delivered to a person unless it is contained in a package made of opaque material, or
(d) published unless it displays the determined markings.
10.69 Further, at each entrance to the premises of a ‘restricted publications area’, there must be prominently displayed a notice that reads:
RESTRICTED PUBLICATIONS AREA—PERSONS UNDER 18 MAY NOT ENTER. MEMBERS OF THE PUBLIC ARE WARNED THAT SOME MATERIAL DISPLAYED IN THIS AREA MAY CAUSE OFFENCE.
10.70 In submissions to this Inquiry, some stakeholders expressed surprise that there is concern about the offline sale and display of this content at all, considering how widely and freely much of the content may be found online, where digital offerings are ‘cheaper, more varied and subject to fewer restrictions’. Civil Liberties Australia, for example, submitted that it ‘is hardly clear that this should be a pressing concern’, considering ‘most sexually explicit content is now accessed online’:
This ‘problem’ will almost certainly go away by itself over the next few years anyway. … As for other offline content, it is unclear what more can be done. Australians seem generally happy in this regard.
10.71 The Pirate Party Australia submitted that:
The current system of sealed magazines and restricted premises is adequate to regulate sexually explicit content offline. Legal, unclassified material should be restricted, not banned.
10.72 Others submitted that greater restrictions should be imposed. The child protection association, Bravehearts, argued that restricted offline material, such as sexually explicit magazines and DVDs, should be ‘out of sight and out of reach of children’.Media Standards Australia stated that:
All material with an R 18+ classification should be in an isolated, restricted area, and removed from all other material. This includes magazines and videos. … Children should not be confronted by adult content images as they browse shelves in a store, whether it be for computer games, DVDs, books or magazines.
10.73 Another stakeholdersuggested that the display and sale of content, such as sexually explicit magazines, should be prohibited entirely in ‘physical environments to which children have access’.
10.74 ACP Magazines submitted that ‘access restrictions should appropriately recognise the context in which consumers view and purchase magazines’ and that this
is more likely to be achieved through a consultative process that involves relevant industry participants throughout the magazine supply chain than through the imposition of a broad, statutory regime.
10.75 In the ALRC’s view, existing state prohibitions on the sale of R 18+ films and restricted magazines to minors are adequate. The new scheme should provide for similar restrictions, although some details should be in industry codes or Regulator standards, rather than the new Act.
10.76 However, restricting access to sexually explicit adult content offline may be achieved more consistently and effectively under the scheme recommended in this Report. The rules regarding where it may be sold and how it should be packaged and displayed should be simplified and uniform. Rather than focusing on whether magazines are properly classified or not, Regulatory activity should instead address community concerns about children’s access to this content.
Restricting access online
10.77 Many stakeholders suggested that restricting access online is very costly and almost impossible in practice. Civil Liberties Australia submitted:
there are simply no effective methods to control access to online content anything like the manner sought by most advocates. What is possible is to restrict access to some small subset of particular copies of restricted online content, and then only in particular controlled environments. The real question is whether the costs of such limited controls are worth the relatively minor, and largely symbolic, benefits.
10.78 The Australian Independent Record Labels Association agreed that high impact music ‘should not be available to minors for purchase online’ but submitted that labelling guidelines would be sufficient as it is not ‘practicable to deny consumer access to content, offensive or not, through firewalls, passwords, blacklists or any other means’.
10.79 The Australian Recording Industry Association and the Australian Music Retailers Association also pointed to the ‘inherent difficulties in controlling access to online content’, difficulties replicated in relation to illegal file sharing and peer-to-peer networks. Access to physical products can be restricted, but ‘the issue of controlling access to online content is fraught and will require cooperation that spans multiple industries, territories and international jurisdictions’.
10.80 Some submissions opposed any mandatory regulation of internet content. One person, reflecting a common sentiment in submissions, argued that there ‘should be no restricted access to online content’:
Online content cannot be completely enforced or policed. Parents should take responsibility for their child’s online presence. Adults should be able to control their own access to online content.
10.81 The importance of parental supervision in protecting children from adult content online was stressed in many submissions to this Inquiry. In response to the question, ‘What are the most effective methods of controlling access to online content?’, many people essentially replied: education and parental supervision. One person stated ‘I think that monitoring all media available on the internet is impossible and that providing guidelines for parents would be an easier way to help prevent minors accessing disturbing media’. Another said: ‘Education and parental supervision. Put the computer in the family room. Enable the existing parental access system in your devices’. ‘It comes down to parental supervision,’ another person submitted:
If a child was to use a computer to search for pornographic or unacceptable material then it is, and always will be, up to the parents to supervise and prevent this from happening. And many advances in technology have made it easy for parents to limit and restrict what their children view on the internet.
10.82 Another stakeholder said that attempting to classify and restrict the internet is ‘a colossal waste of time and the onus should be on parents, teachers and child carers to provide the supervision necessary to prevent their children accessing such content’. FamilyVoice Australia said that ‘parents are primarily responsible for monitoring their children’s use of media’, but emphasised that parents are ‘entitled to expect appropriate help from the broader society, including the legal system’.
10.83 The notion that parents play a vital role in protecting their children from harmful online content has been echoed overseas. The United Kingdom’s 2008 Byron Review investigated the impact of new technologies on children in response to growing concern about internet and computer game use. The review recognised that ‘it is very difficult for national Governments to reduce the availability of harmful and inappropriate material’ and emphasised that parents play a ‘key role in managing children’s access to such material’. Additionally, the review recommended that parents should encourage children to develop ‘the confidence and skills to navigate these new media waters safely’, much as parents aid children to learn skills for safety in the offline environment, such as how to cross the road.
10.84 For many, the difficulties of successfully controlling online content at the content provider end mean that it is necessary to shift at least part of the responsibility to protect minors to parents and guardians who are at the ‘receiving end’ of media content.
10.85 Peter Coroneos, former CEO of the Internet Industry Association, has advocated ‘industry facilitated user empowerment’:
This term recognises that end-users are ultimately in the best position, given the nature of the internet, to control what content they are able to access online. However, the internet industry does not abrogate all responsibility here—there are things that can be done to enhance the ability of end-users to assume control, specifically through the provision of information and tools to end-users.
10.86 The ALRC also envisages an important role for content providers in helping users—and parents and guardians in particular—to understand and use the tools that can enable them to better control the media content that comes into their homes.
Education and cyber-safety
10.87 Many stakeholders observed that the education of parents and consumers is one of the most important means of regulating access to online content. Some have spoken of a ‘generational digital divide’ between parents and their children, which may limit some parents’ ability to use tools such as parental locks and internet filters.
10.88 Many submissions focused on education of parents as a key priority, both in terms of ‘educating parents and guardians about how to use parental locks and restricted access systems’, and also more generalised education as to the ‘dangers and potential consequences of online activities’. The Australian Mobile Telecommunications Association, for example, submitted that the most effective method of controlling access to online content
lies in empowering and educating consumers so that they can exercise their own controls over the content they choose to access and/or restrict their children from accessing online.
10.89 The NSW Council of Churches submitted that children’s access to potentially inappropriate content may be better controlled online by ‘funding effective education strategies including advertisements, parental education and child education including in all public schools’. Likewise, Bravehearts submitted that online safety should be ‘part of the personal safety curriculum taught to children in schools’:
Components of cyber-safety curriculum should include: Unwanted contact; Inappropriate content; Safe behaviour online and protecting personal identity information; Cyberbullying.
10.90 SBS submitted that ‘consumer education (including media literacy education in school curricula)’ and ‘the availability of tools such as parental locks and filtering software in conjunction with a consistent classification marking scheme should be relied on to control access to content’.
10.91 A number of ISPs offer an internet service filtered at the ISP level. End users do not need to install additional software on their personal computers. Though some ISP-level filters offer a single ‘clean-feed’, which screens the same content for all users, many allow users to tailor the level of filtering based on content categories.
10.92 Index-based filtering and analysis-based filtering are the two primary technologies. Index-based filtering operates from a categorised index of URLs that is created either manually, through human searches and analysis of content, or through analysis-based filtering. Filtering can be based on ‘white lists’—exclusively permitting specific content while blocking all other content; or ‘blacklists’—exclusively denying specific content while permitting all other content.
10.93 Index-based filtering is often used in conjunction with analysis-based filtering, which employs key word, image analysis, file type, link analysis, reputation, and deep packet inspection criteria to analyse content offline or in real-time. Improvements in filtering technology have been widely documented.
10.94 Although generally considered to be more difficult to circumvent than PC-based filters, ISP-level filters remain relatively easy for tech-savvy users to circumvent.
Home filters and parental locks
10.95 PC-based content filters rely on software installed on a user’s personal computer. PC-based content filters employ technology similar to that used by ISP-level filters, often utilizing a combination of index- and analysis-based filtering methods. Many allow for content tracking and reporting, and allow users to tailor the content filtered across multiple categories for several different users.
10.96 In 2007, the Australian Government announced the ‘NetAlert’ program, which offered free PC-based filters to Australian families. The program was discontinued in 2009, but PC-based filters are still widely available in Australia. The IIA Code of Practice requires that ISPs provide an optional content filter to users.
10.97 Many submitted that filtering software and parental locks were the best means of controlling minor’s access to adult content. Dr Gregor Urbas and Tristan Kelly, for example, submitted:
Dynamic filters may be of some use to users, including parents, who wish to voluntarily filter material. In particular, PC-based filters provide parents with the best option to control and monitor their children’s browsing habits.
10.98 Another stakeholder commented that ‘optional filters on client-side computers are a more efficient way of controlling online access, without blocking any adult’s right to view what they wish to’. The Arts Law Centre of Australia likewise submitted that resources should be dedicated to
providing [filtering] software to those who would like it and educating the community about the best ways to take responsibility for themselves and their children.
10.99 Parental locks may also be used to block certain television content. Since February 2011, all televisions sold in Australia must have parental lock capabilities. Free TV Australia noted that most digital televisions and digital set-top-boxes have a parental lock function.
Parental Locks allow you to block programs based on their classification (for example, G, PG, M or MA), or in some cases block whole channels, via the use of a PIN (personal identification number). Once the function is activated, only those with access to the PIN can view the blocked programming or channel.
10.100 The ALRC considers that content providers should have an obligation to take steps to restrict access to adult content. Content providers will usually not be in the business of providing parental lock technology or internet filters. However, content providers should have a role in the promotion of the use of parental locks and internet filters. If such technology is the best way to prevent minors from accessing adult content, then providers of adult content—particularly commercial providers—should have a responsibility to promote the use of these tools. For some content providers, promoting these tools may be a reasonable step to restricting access to adult content. Whether this will be sufficient for any particular content provider may depend, in part, on how widely the technologies are in fact understood and used in the Australian community.
Regulator notices to providers of filters
10.101 Currently, upon receipt of a complaint about certain higher-level online content hosted outside Australia (essentially, RC and X 18+ content, and MA 15+ and R 18+ content not behind a restricted access system), and after investigating that complaint, the ACMA is required to notify providers of family friendly filters, so that the content is added to the list of URLs that may be filtered.
10.102 In the ALRC’s view, there is no need for a Regulator to notify filter providers of MA 15+, R 18+ and X 18+ online content. There are many highly sophisticated commercial internet filters that index, and allow users to block, millions of URLs and other digital content from their home computers. Such filters do not rely on a regulator’s lists of a few thousand URLs that have been the subject of complaints. Maintaining such lists appears to be a costly and unnecessary regulatory activity that should be abandoned.
10.103 The ALRC suggests that the new Act should not require the Regulator to notify internet filter providers about adult content.
Restricted access systems
10.104 Restricted access systems or access control systems have been used to help prevent minors from accessing certain content online, essentially by seeking to verify the age of persons trying to access content. Although they may be a suitable means of restricting access for some content providers, others should not be required to use such systems.
10.105 Schedule 7 of the Broadcasting Services Act provides that certain content online must only be provided behind a restricted access system. Under the Restricted Access System Declaration 2007 (Cth), for R 18+ content, an access-control system must:
- require an application for access to the content; and
- require proof of age that the applicant is over 18 years of age; and
- include a risk analysis of the kind of proof of age submitted; and
- verify the proof of age by applying the risk analysis; and
- provide warnings as to the nature of the content; and
- provide safety information for parents and guardians on how to control access to the content; and
- limit access to the content by the use of a PIN or some other means; and
- include relevant quality assurance measures; and
- retain records of age verification for a period of 2 years after which the records are to be destroyed.
10.106 Under the Broadcasting Services Act, X 18+ content, and what is currently Category 1 and Category 2 Restricted content, is prohibited whether or not it is subject to a restricted access system.
10.107 Some content providers report that they have successfully used restricted access systems. Telstra submitted that to access some of its website content, customers must provide their credit card details, which ‘constitutes verification that they are at least 18 years of age and allows them to access age-restricted content’.
10.108 Many stakeholders and comments on the ALRC’s online forum about this topic were strongly critical of restricted access systems. The NSW Council for Civil Liberties has also said that methods of restricted access systems—PINs, passwords, etc—are ‘ineffective, intrusive and encourage identity theft’. Such systems were said to be a considerable burden on content providers, particularly non-commercial content providers. If content providers chose to take down their content entirely, rather than go to the expense of setting up an age-verification system, the law would effectively censor this content.
10.109 The IIA described the Restricted Access System Declaration as ‘unworkable to the extent that it requires an online service provider to obtain evidence that a customer is 18’:
In contrast, currently under the IIA’s industry code, use of a credit card is regarded as sufficient evidence that a customer is over 18 years of age. This is the case, notwithstanding that it is impossible for online service providers to know whether the card provided is a debit or a credit card and/or whether the person holding the card is in fact 18 years or older. Indeed, it would be prohibitively costly for a provider of an online service to obtain evidence of the age of each individual customer. … Consequently, in our view, the requirements set out in the RAS should be replaced with a requirement that the provider publish a ‘click-through’ acknowledgement that the viewer is 18 years or older.
10.110 In the ALRC’s view, it is not a strong criticism of restricted access systems that some minors—particularly older teens—can get around the systems, or that the systems do not operate perfectly. Like restrictions on the sale of liquor and cigarettes, online age verification systems may provide a useful warning and prevent many minors from accessing the content, even if the systems are not impenetrable.
10.111 Although this Inquiry does not review the merits of such technologies in detail, the ALRC shares many of the concerns raised about online age-verification systems, particularly those concerns about privacy and the cost burdens they may place on non-commercial content providers.
10.112 It may be unreasonable and ineffective to require all providers of online adult content to verify the age of persons who attempt to access their content. By recommending a platform-neutral law that requires content providers to take reasonable steps to restrict access to adult content, the ALRC does not suggest that content providers must use age-verification tools—particularly if the cost of such tools is out of proportion to their effectiveness. However, such tools may be useful and appropriate for some content providers.
10.113 Adults and minors who do not wish to view adult content may be assisted by suitable warnings—perhaps on a website or at the start of an online film clip. The effectiveness of warnings about online content are also limited by the fact that, as one person wrote on the ALRC’s online forum, a website ‘isn’t like a building, with a nice front door for the public to come through. Every page is likely to be directly accessible’. Furthermore, such warnings may not deter, much less prevent, persons from accessing content that they would like to access. However, warnings may serve a useful function for those who do not wish to see the content, and for parents and guardians who supervise children’s access to the internet.
Restrictions on broadcasting
10.114 Sometimes content not suitable for minors is prohibited on a specific platform, in part because minors are thought to have more ready access to that platform. For example, the Broadcasting Services Act prohibits commercial free to air television from broadcasting R 18+ content at any time of the day. Subscription broadcast television channels are also prohibited from broadcasting R 18+ content. Subscription narrowcast television channels may broadcast R 18+ content, if the content is restricted to people with ‘appropriate disabling devices’. X 18+ films, of course, may not be broadcast even in the ACT and NT, where they are largely legal to sell.
10.115 Platform-neutral media regulation may suggest that, in time, these laws should also be reconsidered. However, few stakeholders commented on these specific prohibitions, and in the ALRC’s view, such laws should not be relaxed without research into the availability, use and community understanding of parental locks.
10.116 As noted in Chapter 8, the European Union’s Audio-visual Media Services Directive, which extends regulation of television broadcasting to online and other forms of audiovisual media, distinguishes between linear and non-linear services. On linear services, member States must ensure that broadcasters do not include programs which ‘might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence’. It remains to be seen whether this distinction between linear and non-linear services will continue to be relevant.
Recommendation 10–3 The Classification of Media Content Act should provide that the reasonable steps that content providers must take to restrict access to adult content may be set out in:
(a) industry codes, approved and enforced by the Regulator; and
(b) standards, issued and enforced by the Regulator.
These codes and declarations may be developed for different types of content, content providers and industries, but could include:
(a) how and where to advertise, package and display hardcopy adult content;
(b) the promotion of parental locks and user-based computer filters;
(c) how to confirm the age of persons accessing adult content online; and
(d) how to provide warnings online.
 As noted above, in this chapter, ‘adult content’ is media content that has been classified R 18+ or X 18+, and unclassified media content that, if it were classified, would be likely to be classified R 18+ or X 18+.
 J Trevaskis, Submission CI 2493.
 Free TV Australia, Submission CI 2519; Foxtel, Submission CI 2497; National Association for the Visual Arts, Submission CI 2471; Telstra, Submission CI 2469.
 Industry codes are discussed more fully in Ch 13.
Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 21(1).
 Ibid s 49. (Upper case in original.)
 A Hightower and Others, Submission CI 2159.
 Civil Liberties Australia, Submission CI 1143.
 Pirate Party Australia, Submission CI 1588.
 Bravehearts Inc, Submission CI 1175.
 Media Standards Australia Inc, Submission CI 1104.
 NSW Council of Churches, Submission CI 2162.
 ACP Magazines, Submission CI 2520.
 Civil Liberties Australia, Submission CI 1143.
 Australian Independent Record Labels Association, Submission CI 2058.
 The Australian Recording Industry Association Ltd and Australian Music Retailers’ Association, Submission CI 1237.
 Double Loop, Submission CI 1124.
 Australian Law Reform Commission, National Classification Scheme Review, ALRC Issues Paper 40 (2011), Question 12.
 N Smyth, Submission CI 772.
 K Nicholson, Submission CI 260.
 V MacDonald, Submission CI 889.
 N Zeitoune, Submission CI 1566.
FamilyVoice Australia, Submission CI 2509.
 T Byron, Safer Children in a Digital World: The Report of the Byron Review (UK) (2008), 5.
 Ibid, 4, 5.
 P Hettich, ‘YouTube to be Regulated? The FCC Sits Tight, While European Broadcast Regulators Make the Grab for the Internet’ (2008) 82 St John’s Law Review 1447, 1483.
 P Coroneos, ‘Internet Content Control in Australia: Attempting the Impossible?’ (2000) 23(1) University of New South Wales Law Journal 238.
 T Byron, Safer Children in a Digital World: The Report of the Byron Review (UK) (2008), 7.
 Interactive Games and Entertainment Association, Submission CI 1101.
 National Civic Council, Submission CI 2226.
 Australian Mobile Telecommunications Association, Submission CI 1190.
 NSW Council of Churches, Submission CI 2162.
 Bravehearts Inc, Submission CI 1175.
 SBS, Submission CI 1833.
 Australian Communications and Media Authority, Closed Environment Testing of IP-Level Internet Content Filtering (2008), 12–14.
 Ibid, 13.
 Ibid, 14.
 See, eg, European Union Safer Internet Plus Programme, Safer Internet: Test and benchmark of products and services to voluntarily filter Internet content for children between 6 and 16 years, Synthesis Report (2008).
 See Enex Test Lab, ISP Content Filtering Pilot Report (October 2009). See also G Urbas and T Kelly, Submission CI 1151.
 Australian Communications and Media Authority, Filtering Software <www.acma.gov.au/WEB
/STANDARD/pc=PC_90167> at 30 January 2012.
 Internet Industry Association, Internet Industry Code of Practice: Content Services Code for Industry Co-regulation in the Area of Content Services (2008) cl 19. Filters must be provided free of charge or sold on a cost-recovery basis. Eight filters are currently approved by the IIA, with prices ranging from free to $70 per year: Internet Industry Association, Family Friendly Filters 2011 <http://www.iia.net.au> at 30 January 2012.
 G Urbas and T Kelly, Submission CI 1151.
 S Gillespie, Submission CI 191.
 The Arts Law Centre of Australia, Submission CI 1299.
Broadcasting Services Act 1992 (Cth) s 130B; Broadcasting and Datacasting Services (Parental Lock) Technical Standard 2010 (Cth).
 Free TV Australia, How does the Parental Lock work? <http://www.freetv.com.au/content_common/pg-how-does-the-parental-lock-work.seo> at 9 September 2011.
Broadcasting Services Act 1992 (Cth) sch 5 s 40.
 Ibid sch 7 cl 14.
 Australian Communications and Media Authority, Explanatory Statement, Restricted Access Systems Declaration 2007.
 Telstra, Submission CI 1184.
 New South Wales Council for Civil Liberties, Submission on the ACMA Restricted Access System Declaration (2007), 3.
 Internet Industry Association, Submission CI 2528.
 Australian Law Reform Commission, Classification Discussion Forum <www.alrc.gov.au/public-forum/classification-forum> at 15 December 2011.
Broadcasting Services Act 1992 (Cth) sch 2 cls 7(1)(ga), 9(1)(ga), 11(3)(b).
 Ibid sch 2 cls10(g).
 ASTRA, Codes of Practice 2007: Subscription Narrowcast Television (2007), Code 3 ‘Classification and Placement of Programming’ cl 3.4. ‘Material classified R 18+ can only be broadcast by a subscription narrowcasting service, and only where access to that material is restricted’: ASTRA Subscription Television Australia, Submission CI 1223.
Broadcasting Services Act 1992 (Cth) sch 2 cls 7(1)(g), 9(1)(g), 10(f), 11(3)(a).
 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (‘AVMS Directive’) art 27(1).