The restrict access obligation
10.7 The ALRC recommends that the Classification of Media Content Act (the new Act) should provide that content providers should take reasonable steps to restrict access to adult content that is sold, screened, provided online, or otherwise distributed to the Australian public. This requirement should apply to all adult media content, both online and offline—not just films, television programs and computer games, but also websites, magazines, music, artworks, advertising, user-generated content and other media content. The Australian community may not expect formal advisory classification information for this content but, in the ALRC’s view, content providers should take reasonable steps to restrict access, so that the content may only be accessed by adults who choose to view the content.
10.8 What these reasonable steps might be for different types of content provider is discussed later in this chapter. For some, this may mean promoting the use and understanding of voluntary parental locks and PC-based filters. The ALRC does not propose that all providers of adult content be required to verify the age of people who access their content.
10.9 Under Australia’s current classification laws, certain adult content—where legal to distribute at all—must not be sold or distributed to minors. Films classified R 18+ must not be sold or hired to minors. Publications classified Category 1 Restricted and Category 2 Restricted may also only be sold to adults, and some only in adult premises such as sex shops. Even some books, such as the Bret Easton Ellis novel American Psycho, have been given a restricted classification and may only be sold in a sealed wrapper and to adults. Online content hosted in Australia that has been classified R 18+, or is likely to be classified R 18+, should only be accessible behind a restricted access system. Films classified X 18+ are illegal in most of Australia, but where they may be legally sold in the ACT and the NT, they may not be sold to minors. Online X 18+ content is prohibited under the Broadcasting Services Act 1992 (Cth) (the Broadcasting Services Act), and subject to take-down notices if hosted in Australia. The URLs of X 18+ content hosted outside Australia may be sent to providers of voluntary internet filters.
10.10 Drawing upon these existing restrictions and applying them to the internet age, the ALRC, in the Discussion Paper, proposed that the new Act provide that access to all R 18+ and X 18+ media content, online and offline, should be restricted to adults. Many stakeholders supported these proposals. Kate Gilroy from Watch on Censorship, for example, stated that distributors ‘should maintain their responsibility to ensure age appropriate restrictions’. Telstra also supported the proposal, provided the obligation would not be placed on those who are ‘mere conduits’ for the content, such as internet service providers (ISPs). As discussed in Chapter 5, the ALRC agrees that internet intermediaries should be not be required to restrict access to adult content.
10.11 Others were critical of the proposals, some assuming that this would mean an expansion of the existing restricted access system obligations in the Broadcasting Services Act. Some stakeholders stressed that restricted access systems could be easily circumvented. Civil Liberties Australia said that a ‘barely competent teenager could easily work around even the most complex restrictions’:
Unless the ALRC can actually propose a practical means of internet restriction that isn’t trivially bypassed and does not suffer from under or over blocking, it seems dangerous to make proposals suggesting that such things can simply be legislated into existence.
10.12 Another stakeholder stressed that even those restricted access systems that require credit or debit card details do not work, because many minors can get access to credit and debit cards. Such restricted access systems, the ALRC was told, also discriminate against adults who do not possess credit cards, and compromise people’s privacy. Google submitted that ‘age-based restrictions are very difficult to enforce in any robust way’ and they ‘give rise to very real privacy considerations’:
[W]e are concerned that the proposed age-based restrictions on adult content would be unworkable in practice.
10.13 The Internet Industry Association (IIA) said it would be ‘prohibitively costly for a provider of an online service to obtain evidence of the age of each individual customer’, but it supported ‘a requirement that the provider publish a ‘click-through’ acknowledgement that the viewer is 18 years old or older’.
10.14 In the ALRC’s view, the ability to circumvent access restrictions does not mean that content providers should not take reasonable steps to restrict access. That a law may not perfectly achieve its desired outcome does not mean the law serves no purpose. In any event, the ALRC does not propose that restricted access systems should be used by all providers of adult content. Furthermore, these access restrictions are also intended to apply offline. The restrictions should, for example, operate effectively in cinemas and retail outlets.
10.15 Content providers outside Australia may be unlikely to comply with Australian obligations to restrict access to adult content. As one person noted, much adult content is hosted in countries that ‘simply don’t care about Australian content standards—if they’re even aware that they exist’. However, many content providers will comply with the law—particularly Australian media organisations, broadcasters, cinemas, retail outlets and others. This will mean access restrictions are in place on the platforms from which large proportions of the Australian public access media content.
10.16 Compliance by media providers with a large reach in Australia is likely to mean that large volumes of media content delivered to Australians will come with appropriate warnings and other means to help prevent minors from accessing content that is not suitable for them. Content providers may highlight these protections to promote their services. That others may not comply does not suggest access restrictions should be abandoned entirely.
10.17 The ALRC agrees that restricting access should not be prohibitively costly or burdensome. Nor should the law unnecessarily compromise people’s privacy. If the obligation to restrict access is made more reasonable—that is, easier to comply with—and perhaps further simplified for providers of non-commercial content, then the ALRC recommends that the new Act should provide for such an obligation. Methods of restricting access are discussed later in this chapter.
What is ‘adult’ content?
10.18 Adult content, in this Report, refers to media content that has been classified R 18+ or X 18+, and to unclassified media content that, if it were classified, would be likely to be classified R 18+ or X 18+. These are the strictly ‘adults only’ classifications in Australia’s current classification scheme.
10.19 Under the Guidelines for the Classification of Films and Computer Games, R 18+ films may have a ‘high’ impact and ‘may be offensive to sections of the adult community’. The Guidelines provide:
- There are virtually no restrictions on the treatment of themes;
- Violence is permitted. Sexual violence may be implied, if justified by context;
- Sexual activity may be realistically simulated. The general rule is ‘simulation, yes—the real thing, no’;
- There are virtually no restrictions on language;
- Drug use is permitted;
- Nudity is permitted.
10.20 This is a high threshold. Less than 5% of films classified by the Classification Board between 2005–06 and 2010–11 were classified R 18+.
10.21 The X 18+ classification, on the other hand, is an adults-only classification for content with ‘real depictions of actual sexual intercourse and other sexual activity between consenting adults’. Classification guidelines state:
No depiction of violence, sexual violence, sexualised violence or coercion is allowed in the category. It does not allow sexually assaultive language. Nor does it allow consensual depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers.
Fetishes such as body piercing, application of substances such as candle wax, ‘golden showers’, bondage, spanking or fisting are not permitted.
As the category is restricted to activity between consenting adults, it does not permit any depictions of non-adult persons, including those aged 16 or 17, nor of adult persons who look like they are under 18 years. Nor does it permit persons 18 years of age or over to be portrayed as minors.
10.22 This chapter does not review the scope of the R 18+ and X 18+ classification categories, but focuses on the legal architecture of a classification scheme, and suggests reforms consistent with the principle that some content should not be accessed by minors. However, recommendations in other chapters of this Report will require some review of the adult classification categories.
Scope of the obligation
10.23 Under the new scheme, the obligation to take reasonable steps to restrict access applies to content that includes unclassified content that is ‘likely’ to be R 18+ or X 18+. Some stakeholders expressed concern about such a provision referring to the ‘likely’ classification of content. For reasons discussed later in this chapter and in Chapter 6, the volume of media content now available suggests it is impractical and prohibitively costly to require all adult content to be classified. Restrictions must therefore be imposed on unclassified content that can be grouped in some other way. The classification that a piece of content would be ‘likely’ to receive, if it were classified, is itself a useful way to group or categorise content. This also has the benefit of treating classified and unclassified adult content alike, for the purpose of imposing access restrictions.
Non-commercial adult content
10.24 Should there be an exception for distributing non-commercial adult content? In Chapter 6, the ALRC proposes that obligations to classify content should only apply to content made and distributed on a commercial basis. However, in the ALRC’s view, the obligation to take reasonable steps to restrict access to adult content should not be limited in this way. It is not only high-impact commercial content that adults should be warned about, and minors protected from, but all high-impact content. Accordingly, the ALRC recommends that access to adult content should be restricted, whether or not the content is produced on a commercial basis.
10.25 Methods of restricting access should, however, be appropriate to and adjusted for different types of content provider. Some will be able to do more than others. These methods are discussed later in this chapter.
10.26 The importance of warning people about adult content, and protecting minors from this content, suggests that the obligation to take reasonable steps to restrict access should not be limited to content likely to have a ‘significant Australian audience’. Even small Australian audiences should be given this warning. For example, a film that will only be screened once to a niche audience may not need to be classified, but if the film has high-level violence and is likely to be R 18+, the audience should be warned beforehand, and minors should not be admitted to the cinema.
10.27 However, the new Act should focus on the distribution of adult content to the Australian public, rather than with possession or the distribution to persons outside Australia. The obligation to restrict access to adult content should therefore be confined to content that will have some Australian audience, even if this is only a small audience.
10.28 In Chapter 6, the ALRC recommends certain exemptions from laws mandating that some content must be classified. Should there be similar exemptions from laws that provide that adult content should be restricted to adults?
10.29 With regard to content in art galleries and cultural institutions, one stakeholder ‘strongly’ objected to a new obligation ‘to guess whether artworks are “likely to be R 18+” and if they guess so, restrict access to adults’.
What, if any, serious problem currently exists, and what, if any, legitimate public purpose is achieved by, among other things, preventing parents from taking, eg, their teenage sons and daughters, to see an art exhibition that includes so-called ‘content’ that may be likely to be classified R 18+.
10.30 The ALRC notes that one of the matters that must now be taken into account when classifying content is ‘the literary, artistic or educational merit (if any)’ of the content being classified. However, minors are now prohibited from buying films, computer games and publications that would be classified R 18+ and X 18+, and it is an offence to admit a minor to a film classified R 18+, whether or not the minor is accompanied by a parent or guardian. These classification categories are designed specifically to capture content that is only for adults. If they capture content that should not be restricted to adults, then the categories should be reviewed.
10.31 The ALRC does not recommend that galleries and other cultural institutions be made exempt from the requirement to take reasonable steps to restrict access to adult content, and notes that some galleries and institutions may already take such steps voluntarily. In fact, any exemptions from this obligation should be limited carefully. Some exemptions may, however, be appropriate for R 18+ news footage.
How to identify ‘adult content’
10.32 Ideally, content providers should somehow assess whether content is likely to be adult content before they distribute it. However this will often be impractical or impossible for online content providers that deal with large quantities of content, much of which is dynamic and user-generated. Requiring ‘pre-assessment’ would be almost as onerous as requiring the content to be classified, which, as discussed below, is impractical and prohibitively costly, particularly if only trained Australian assessors are qualified to make such assessments.
10.33 The ALRC does not propose that all content providers should be required to pre-assess content to determine whether it is likely to be adult content. Instead, the obligation to take reasonable steps to restrict access to adult content should include an obligation to take reasonable steps to identify adult content. It may be reasonable to expect some content providers, such as magazine publishers and retail outlets, to identify adult content before it is published or sold. For others, such as platforms that host millions of hours of user-generated content, it may only be reasonable to expect them to have in place processes to readily identify adult content after it has been published. Major content providers, for example, might have mechanisms that allow users to ‘flag’ content as adult or ‘inappropriate’.
10.34 Content providers who specialise in distributing adult content should find it straightforward to identify this content. Others may choose to have their content classified, to determine whether access should be restricted.
Who must restrict access?
10.35 The ALRC recommends that the obligation to take reasonable steps to restrict access should be placed primarily on ‘content providers’, including retailers of adult products, publishers and distributors of adult films and magazines, and online content platforms that provide adult content such as pornography. Content providers will usually be best placed to take steps such as providing warnings with their content, placing their content in plastic wrappers, and checking their customers’ age in cinemas and retail outlets. However, this obligation to restrict access should generally not apply to persons uploading content, other than on a commercial basis, to a website owned and managed by others.
10.36 In Chapter 5, the ALRC recommends that obligations to take reasonable steps to restrict access to adult content online should apply to any content with an appropriate Australian link, including content hosted in Australia, controlled by an Australian content provider, or directed to an Australian audience.
10.37 The ALRC does not recommend that ISPs and other internet intermediaries should be required to restrict access to adult content that is provided by others. However, this does not mean that ISPs should have no obligations with respect to this content. ISPs should, for example, continue to provide and promote internet ‘family friendly’ filters, as this is currently provided for under the Internet Industry Code of Practice.
Restrict access notices
10.38 The ALRC considers that if the Regulator, perhaps after receiving a complaint, considers that a piece of content is adult content, the Regulator should be able to issue a notice to the content provider requiring it to take reasonable steps to restrict access to the content. This notice might be called a ‘restrict access notice’.
10.39 The new Act should not provide an offence for simply publishing adult content without restricting access—a law that hosts of large quantities of user-created content may be unable to comply with—but rather should provide for an offence of failing to comply with a restrict access notice. Such notices might be issued in respect of a specified piece of content, or a general class of content. Content providers may provide reasons why they believe the content is not adult content. The Act should provide for criminal offences and civil penalties for failing to comply with these notices.
10.40 The Act might also provide for criminal offences and civil penalties for failing to take reasonable steps to restrict access to this content, where the content provider is reckless as to whether the content is adult content. In deciding whether to issue this notice, the Regulator should have regard to relevant enforcement guidelines. Naturally, these guidelines should encourage the Regulator to focus attention on the most serious content, and the content likely to have the largest Australian audience.
Recommendation 10–1 The Classification of Media Content Act should provide that content providers should take reasonable steps to restrict access to adult content that is sold, screened, provided online or otherwise distributed to the Australian public. Adult content is:
(a) content that has been classified R 18+ or X 18+; or
(b) unclassified content that, if classified, would be likely to be classified R 18+ or X 18+.
The Classification of Media Content Act should not mandate that all adult content must be classified.
Recommendation 10–2 The Classification of Media Content Act should provide the Regulator with the power to issue ‘restrict access notices’ to providers of adult content. For the purpose of issuing these notices, the Regulator should be empowered to determine whether the content is adult content.
 Eg, Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 9(2). There are similar provisions in other state and territory classification enforcement legislation.
 Ibid s 21, 24(2); Classification (Publications, Films and Computer Games) Act 1995 (SA) ss 48, 51;Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas)s 15; Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) ss 27, 29; Classification of Publications, Films and Computer Games Act 1985 (NT) ss 56(1), 60.
American Psycho was classified Restricted Category 1 in 1991.
Broadcasting Services Act 1992 (Cth) sch 7 cls 20, 21.
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT) s 23(5); Classification of Publications, Films and Computer Games Act 1985 (NT) s 50(1).
Broadcasting Services Act 1992 (Cth) sch 7 cls 20, 21, 47.
 Ibid sch 5; Internet Industry Association, Internet Industry Code of Practice: Content Services Code for Industry Co-regulation in the Area of Content Services (2008).
 Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposals 8–1 and 8–2.
 Eg, Free TV Australia, Submission CI 2519; FamilyVoice Australia, Submission CI 2509; Arts Law Centre of Australia, Submission CI 2490; Foxtel, Submission CI 2497; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469.
 Watch On Censorship, Submission CI 2472.
 Telstra, Submission CI 2469.
 See Broadcasting Services Act 1992 (Cth) sch 7 cls 20 and Restricted Access System Declaration 2007 (Cth).
 Civil Liberties Australia, Submission CI 2466.
 I Graham, Submission CI 2507.
 Ibid; See also Google, Submission CI 2512.
 Google, Submission CI 2512.
 Internet Industry Association, Submission CI 2528.
 A Hightower, Submission CI 2511.
Guidelines for the Classification of Films and Computer Games (Cth). See also the criteria for restricted publications in the Guidelines for the Classification of Publications 2005 (Cth).
 See annual reports of the Classification Board, 2005–06 to 2010–11.
Guidelines for the Classification of Films and Computer Games (Cth). Currently, only films may be classified X 18+. In Ch 9, the ALRC recommends that any media content—including computer games, magazines and websites, rather than only films—may be classified X 18+, though this does not mean they should be required to be classified.
 Ch 11 discusses the scope of the existing RC classification, and proposes that the Australian Government should consider whether some content that may now be RC should instead be classified R 18+ or X 18+. The need for research into community standards is also discussed in Ch 9.
 Foxtel, Submission CI 2497; Classification Board, Submission CI 2485.
 In Ch 6, the ALRC recommends that the obligation to classify certain content should only apply to content with a significant Australian audience.
 I Graham, Submission CI 2507.
Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 11.
 Eg, Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) ss 9, 12, 24, 30, 32.
 See Ch 5.
 Rec 5–9.
 Internet Industry Association, Internet Industry Code of Practice: Content Services Code for Industry Co-regulation in the Area of Content Services (2008).
 See Ch 16.