2.14 The Broadcasting Services Act came into force in 1993, replacing the Broadcasting Act 1942 (Cth). The Act contains an objects section that states the goals and principles of broadcasting policy. It also contains a statement of regulatory policy, expressing a commitment to accommodating technological change and the development of new services, and ‘enabling public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens’ on regulated industries and services.
2.15 The Broadcasting Services Act also devolved responsibility for the development of program classification, and the handling of complaints, to industry bodies in a co-regulatory framework, through the development of industry codes of practice approved and registered with the ACMA.
Broadcasting industry codes and standards
2.16 In developing classification standards for television programs, broadcasters are required under pt 9 of the Broadcasting Services Act to take account of:
- the objects of the Broadcasting Services Act (s 3);
- code of practice requirements stated in s 123 of the Broadcasting Services Act;
- classification standards for other media, as administered by the Classification Board; and
- outcomes of consultation with the community and the ACMA about these standards.
2.17 The commercial television code of practice is developed and administered by Free TV Australia as the relevant industry body for free-to-air commercial networks. The subscription television codes of practice, the subscription narrowcasting codes of practice, and the open narrowcasting codes of practice are developed and administered by the Australian Subscription Television and Radio Association (ASTRA). The Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) codes of practice are developed and approved within those organisations. These codes are discussed in more detail in Chapter 13.
2.18 The Broadcasting Services Act also mandates time-zone restrictions for commercial television broadcasting licensees and community television broadcasting licensees. These require that films classified as Mature (M) may be broadcast only between the hours of 8:30 pm on a day and 5:00 am on the following day, or between the hours of noon and 3:00 pm on any day that is a school day. It is also required that films classified as MA 15+ may be broadcast only between the hours of 9:00 pm on a day and 5:00 am on the following day. Under the codes of practice, these time-zone restrictions also apply to television programs with the same classifications. This statutory requirement does not apply to the digital multi-channels or subscription broadcasting services.
2.19 The Broadcasting Services Amendment (Online Services) Act 1999 (Cth) established the legislative framework for online content regulation in Australia. It extended the co-regulatory system for broadcasting to online content, combining this with a complaints-based mechanism for content assessment.
2.20 Schedule 5 of the Broadcasting Services Act sets out provisions in relation to internet content hosted outside Australia, and sch 7 does so in relation to content services, including some content available on the internet and mobile services hosted in or provided from Australia. Broadly, the scheme places constraints on the types of online content that can be hosted or provided by internet service providers (ISPs) and content service providers. This is expressed in terms of ‘prohibited content’.
2.21 Schedule 7 defines ‘prohibited’ or ‘potentially prohibited’ content. Generally, ‘prohibited content’ is content that has been classified by the Classification Board as X 18+ or Refused Classification (RC) and, in some cases, content classified R 18+ or MA 15+ where the content is not subject to a ‘restricted access system’. Content is ‘potentially prohibited content’ if the content has not been classified by the Classification Board and, if it were to be classified, there is a substantial likelihood that it would be prohibited content.
2.22 Under the Broadcasting Services Act, the ACMA investigates complaints about online content that the complainant believes to be ‘prohibited content’ or ‘potential prohibited content’ with reference to the National Classification Code. The Classification Board will classify online content on receipt of an application for classification.
2.23 The ACMA may choose to investigate on its own initiative, and must investigate all complaints that are not frivolous, vexatious, made in bad faith, or made to undermine the effective administration of the schedules.
2.24 The action that the ACMA must take depends, among other things, on where the content is located. Where prohibited content is hosted in Australia, the ACMA must issue a final notice to the content service provider seeking removal of the content, the link or service, or requiring the use of a restricted access system, depending on the nature and classification category of the content. The ACMA must issue an interim notice for Australian-hosted potential prohibited content and apply to the Classification Board for classification of the content. Content hosts must undertake the action required by the notice by 6:00pm the next business day, and financial penalties apply for failing to comply with a notice. Where Australian-hosted prohibited or potential prohibited content is also considered to be sufficiently serious, the ACMA must notify law enforcement agencies.
2.25 Where prohibited or potential prohibited content is hosted outside Australia, the ACMA notifies filter software makers accredited by the internet industry in accordance with the code of practice in place under sch 5 of the Broadcasting Services Act. The filters are made available by ISPs to their customers for free or on a cost recovery basis. Where prohibited or potential prohibited content hosted overseas is also considered to be sufficiently serious, the ACMA notifies the member hotline in the country where the content appears to be hosted. Where no member hotline exists, the ACMA notifies the Australian Federal Police for action through Interpol.
Internet industry codes
2.26 Schedules 5 and 7 of the Broadcasting Services Act are intended to establish a co-regulatory framework based on industry codes developed by sections of the internet industry.
2.27 Under sch 5, the matters that must be dealt with in industry codes for ISPs include: enabling parents to better monitor the online activities of their children; provision of filtering technologies; content labelling; legal assessments of content; and complaints handling procedures.
2.28 Under sch 7, the matters that must be dealt with in industry codes for commercial content service providers include: the engagement of trained content assessors; and ensuring that content is assessed by these content assessors. Matters that may be dealt with include: complaint-handling procedures; promoting awareness of safety issues; and assisting parents to supervise and control children’s access to online content.
2.29 In accordance with schs 5 and 7, the Internet Industry Association (IIA) has developed two industry codes—the Internet and Mobile Content Code and the Content Services Code. The codes impose various obligations on content hosts, ISPs, mobile carriers, and content service providers. Subjects addressed include:
- obligations in responding to notices;
- requirements about what information must be provided to users;
- requirements about making filters available;
- requirements about establishing complaints procedures; and
- the appropriate use of restricted access systems.
2.30 Peter Coroneos, former chief executive of the IIA, has described the IIA codes as ‘promoting industry facilitated user empowerment’ and ‘designed to achieve the broad objectives of the legislation without significant burden on or damage to the industry’.
Broadcasting Services Act 1992 (Cth) ss 3, 4.
 Ibid pt 9 s 123(3A).
 Overviews of online content regulation in Australia can be found in P Coroneos, ‘Internet Content Policy and Regulation in Australia’ in B Fitzgerald and others (eds), Copyright Law, Digital Content and the Internet in the Asia-Pacific (2008); and K Crawford and C Lumby, The Adaptive Moment: A Fresh Approach to Convergent Media in Australia (2011), 53–57.
Broadcasting Services Act 1992 (Cth) sch 7 cls 20, 21.
 Ibid sch 7 cl 43.
 Ibid sch 7 cls 47, 56, 62.
 Ibid sch 7 cl 47(2)–(5).
 Ibid sch 7 cl 53.
 Ibid sch 5 cl 40.
 Ibid sch 5 cl 60.
 Ibid sch 7 cls 81–82.
 Internet Industry Association, Internet Industry Codes of Practice: Codes for Industry Co-regulation in Areas of Internet and Mobile Content (2005).
 Internet Industry Association, Internet Industry Code of Practice: Content Services Code for Industry Co-regulation in the Area of Content Services (2008).
 P Coroneos, ‘Internet Content Policy and Regulation in Australia’ in B Fitzgerald and others (eds), Copyright Law, Digital Content and the Internet in the Asia-Pacific (2008), 58.