Classifying before enforcement

12.21 The ALRC recommends that the Classification of Media Content Act should provide that content must be classified Prohibited by the Classification Board before a person is:

(a) charged with an offence under the Act that relates to Prohibited content; and

(b) issued a notice requiring the person to stop distributing the Prohibited content, for example by taking it down from the internet.

12.22 This provision would apply to Prohibited media content distributed on any platform or device, including offences for distributing hardcopy Prohibited content.

12.23 Similar requirements proposed in the Discussion Paper[15] were supported by a number of stakeholders.[16] Telstra said it favoured ‘all measures that improve the transparency and accountability of this process’.[17] The New South Wales Council for Civil Liberties ‘applauded’ the proposal, because to ‘provide otherwise is, in effect, to permit retrospective criminalisation’.[18] The Council also considered it important ‘that law enforcement officers are not involved in decisions about what is to be censored’.[19]

12.24 The Victorian Government commented that, currently, ‘enforcement bodies are required to request classification decisions (or proof of classification in the form of evidentiary certificates) for materials to establish breaches’.[20]

12.25 The main concern raised in submissions was that the proposal may unwittingly have a negative impact on the law enforcement response to child sexual abuse content. Some submissions raised a concern that the proposal could hamper enforcement, if the Classification Board could not classify the content promptly.[21]

12.26 The Justice and International Mission Unit of the Uniting Church in Australia also submitted that the ‘dynamic nature’ of online content had to be factored into the process.[22] This Unit of the Uniting Church was concerned that there may be ‘a significant delay’ in being able to deal with ‘child sexual abuse material’ if all RC content could only be classified by the Classification Board, as child sexual abuse images are now typically hosted for a matter of days.[23] It submitted that if the Classification Board was not resourced to classify child sexual abuse content in under a day, then ‘other regulatory bodies and their officers, such as the ACMA, should be permitted to classify child sexual abuse material’.[24]

12.27 Civil Liberties Australia stated that, before content is added to any proposed list of content that must be filtered at the ISP-level,

there needs to be an additional step requiring Australian law enforcement to exhaust all steps to have the content destroyed by at least contacting the hosting company or local law enforcement in the event Australia is not the country of origin.[25]

12.28 The Hon Nick Goiran MLC submitted that it is ‘important that in the interim period of applying for a classification that the Regulator have power to prevent further distribution of material which is likely to be classified RC’.[26]

12.29 While the ACMA was of the view that classification by the Classification Board would be time-critical, it submitted that the proposal

could work, provided that the dynamic nature of such content is taken into account (for example by capturing a copy of the content and identifying its source as soon as possible) and that such classifications could be done quickly (ideally within two business days) and not involve too much by way of double handling by the regulator and Classification Board.[27]

12.30 It was submitted that the Regulator or other law enforcement agency should be empowered to take certain action in the interim period.[28] The ACMA stated that it was appropriate to have provision for ‘interim take-down notices’ to be issued by qualified staff for ‘potential prohibited content’ to avoid problems if there is delay in the Classification Board’s classification.[29]

12.31 If the Australian Government were to implement a mandatory ISP-level filtering scheme, as has been proposed, then content should also generally be classified Prohibited before ISPs are required to block or filter it. The ALRC made a similar proposal in the Discussion Paper.[30] Proposed accountability and transparency measures, outlined later in this chapter, also provide for the classification of some content before being added to the proposed list of content that must be filtered.

Recommendation 12–2 The Classification of Media Content Act should provide that content must be classified Prohibited by the Classification Board before a person is:

(a) charged with an offence under the Act that relates to Prohibited content; and

(b) issued a notice requiring the person to stop distributing the Prohibited content, for example by taking it down from the internet.

Recommendation 12–3 The Classification of Media Content Act should enable the Regulator to notify Australian or international law enforcement agencies or bodies about Prohibited content without having the content first classified by the Classification Board.

[15] Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 6–6.

[16] Eg, FamilyVoice Australia, Submission CI 2509; Collective Shout, Submission CI 2477; D Henselin, Submission CI 2473; National Association for the Visual Arts, Submission CI 2471; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469.

[17] Telstra, Submission CI 2469.

[18] New South Wales Council for Civil Liberties, Submission CI 2481. See also R Harvey, Submission CI 2467.

[19] New South Wales Council for Civil Liberties, Submission CI 2481.

[20] Victorian Government, Submission CI 2526.

[21] Uniting Church in Australia, Submission CI 2504; Australian Communications and Media Authority, Submission CI 2489.

[22] Uniting Church in Australia, Submission CI 2504. See also, Australian Communications and Media Authority, Submission CI 2489.

[23] Uniting Church in Australia, Submission CI 2504.

[24] Ibid.

[25] Civil Liberties Australia, Submission CI 2466.

[26] N Goiran, Submission CI 2482.

[27] Australian Communications and Media Authority, Submission CI 2489.

[28] Ibid; N Goiran, Submission CI 2482.

[29] Australian Communications and Media Authority, Submission CI 2489.

[30] Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 6­–6.