The obligation

12.6 The ALRC recommends that the Classification of Media Content Act should provide that content providers must not sell, screen, provide online, or otherwise distribute Prohibited content. Prohibited content here refers to:

(a) content that has been classified Prohibited; or

(b) unclassified content that, if classified, would be likely to be classified Prohibited.

12.7 Under the Broadcasting Services Act 1992 (Cth), ‘prohibited content’ has a much broader meaning, and captures X 18+ content, Category 1 and 2 Restricted content, and R 18+ and MA 15+ content that has not been properly restricted. The need for a single definition of Prohibited content that excludes content classified, or likely to be classified, MA 15+, R 18+ or X 18+, is discussed in Chapter 11.

12.8 Some elements of the obligation not to distribute Prohibited content are similar to the obligation to take reasonable steps to restrict access to adult content, discussed in Chapter 10. As with the latter obligation, the obligation not to distribute Prohibited content should apply to both commercial and non-commercial content. Also, although there are exemptions from classification requirements in other classification categories, there should not be similar exemptions from the obligation not to distribute Prohibited content.

12.9 The obligation not to distribute Prohibited content applies to unclassified content that is ‘likely’ to be Prohibited. While some stakeholders have expressed concern about provisions referring to the ‘likely’ classification of content,[1] similar language is used in the Broadcasting Services Act.[2] In the ALRC’s view, the obligation not to distribute certain content should extend to unclassified content that is likely to be Prohibited, otherwise the obligation would only apply to the relatively small proportion of total media content that in practice is actually classified. As Prohibited content is to be illegal to distribute, there must be provision for enforcement of guidelines.

How to identify Prohibited content

12.10 Ideally, content providers should assess whether content is likely to be Prohibited before they distribute it. In light of the serious nature of this content, many content providers may even choose to have their content classified before distributing it, to determine whether it is Prohibited.[3]

12.11 However, this may 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 all content that ‘may’ be Prohibited to be classified, which the ALRC has concluded is impractical and prohibitively costly.

12.12 In the ALRC Discussion Paper, it was proposed that the Classification of Media Content Act should provide that all media content that may be RC must be classified by the Classification Board.[4] While some stakeholders supported this,[5] others were critical of the proposal. Some raised concerns about the huge quantity of media content that ‘may’ be RC.[6] One stakeholder submitted that it is

impossible for anyone to know what would in fact be ‘RC’ under current broad and vague criteria; and the result is likely to be unnecessary self-censorship due to fear of being prosecuted for failure to have material classified.[7]

12.13 A number of stakeholders expressed the view that this sort of classification obligation would impose a considerable burden on content providers, many of whom will be unwilling or unable to comply.[8] Some expressed particular concern about the burden on non-commercial content providers, including individuals.[9] Google stated that, in light of the volume of online content,

content platforms have no practical means of determining whether content is or is likely to be … RC in advance of the content being uploaded. … The only feasible approach to regulating this content is for content platforms to rely on users to notify them of content that may fall foul of the site’s standards in order that this content can be reviewed and removed if considered appropriate.[10]

12.14 The Interactive Games and Entertainment Association submitted that it was critical that the new scheme clearly address the issue of intermediaries providing large quantities of content and the steps that must be taken to avoid liability for inadvertently providing Prohibited content:

While the actual steps might be set out in industry codes, the Classification of Media Content Act should not be silent on the issue.[11]

12.15 Others said it would be difficult or impractical to enforce such laws.[12] For example, the Australian Communications and Media Authority (the ACMA) stated it ‘is likely to lead to a low regard for such a law and, as a consequence, a significantly diminished culture of compliance’.[13]

12.16 The ALRC agrees that it is unreasonable to expect content providers to have all of their content that ‘may be’ Prohibited classified before they distribute it. As discussed in Chapter 10 with respect to adult content, the effective regulation of media content online cannot rely on pre-screening or pre-classification. Such a model would not account for the sheer quantity of media content that is now available online, and in particular, the dynamic nature of online content and the volume of user-generated content.

12.17 Instead, the obligation not to distribute Prohibited content should require content providers to take reasonable steps to identify Prohibited content. Major content providers, for example, might have mechanisms that allow users to flag particular content to the owners of the site.

Who is the subject of the obligation?

12.18 The obligation not to distribute Prohibited content applies to a broader range of persons than the other statutory obligations discussed in this Report. In Chapter 5, the ALRC recommends that obligations in relation to Prohibited content should apply to content providers and internet intermediaries, including application service providers, host providers and internet access providers.[14] In the ALRC’s view, obligations in relation to Prohibited content should—considering the serious nature of the content—be broad in application and apply to all content providers, commercial and non-commercial, and to internet intermediaries who do not otherwise have obligations to classify or restrict access to content.

12.19 As explained in Chapter 5, where Prohibited content is uploaded onto a website by an individual, that individual may commit an offence under the Classification of Media Content Act. The website owner would be under an obligation to take down the content when notified by the Regulator. Other internet intermediaries may have obligations to respond to notices from the Regulator with respect to the content. In the future, an internet service provider (ISP) may have an obligation to filter the content, particularly where the website owner is located overseas.

12.20 The obligation not to distribute Prohibited content would also apply to distributors in the ‘offline’ world, including broadcasters, retailers, and magazine and DVD distributors.

Recommendation 12–1 The Classification of Media Content Act should provide that content providers must not sell, screen, provide online, or otherwise distribute Prohibited content, that is:

(a) content that has been classified Prohibited; or

(b) unclassified content that, if classified, would be likely to be classified Prohibited.

[1] Eg, Foxtel, Submission CI 2497; Classification Board, Submission CI 2485.

[2]Broadcasting Services Act 1992 (Cth) sch 7 cl 21(1)(b).

[3] In which case they could have the content classified by an accredited industry classifier, the Classification Board or using an authorised classification instrument. See Ch 7.

[4] Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposals 6–5 and 7–1(c).

[5] Eg, FamilyVoice Australia, Submission CI 2509; Communications Law Centre, Submission CI 2484; N Goiran, Submission CI 2482; Collective Shout, Submission CI 2477; D Henselin, Submission CI 2473; Telstra, Submission CI 2469; R Harvey, Submission CI 2467; D Mitchell, Submission CI 2461; M Smith, Submission CI 2456; L D, Submission CI 2454.

[6] I Graham, Submission CI 2507; J Denham, Submission CI 2464.

[7] I Graham, Submission CI 2507.

[8] Eg, Google, Submission CI 2512; J Trevaskis, Submission CI 2493; Australian Communications and Media Authority, Submission CI 2489; Interactive Games and Entertainment Association, Submission CI 2470.

[9] A Hightower, Submission CI 2511; I Graham, Submission CI 2507; J Denham, Submission CI 2464.

[10] Google, Submission CI 2512.

[11] Interactive Games and Entertainment Association, Submission CI 2470.

[12] Google, Submission CI 2512; Australian Communications and Media Authority, Submission CI 2489; J Denham, Submission CI 2464.

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

[14] Rec 5–7.