5.22 The Classification of Media Content Act will impose obligations:
- to classify and mark some content and not to sell, screen, provide online, or otherwise distribute content that has not been properly classified and marked (obligations to classify);
- to restrict access to R 18+ and X 18+ content (obligations to restrict access); and
- not to sell, screen, provide online, or otherwise distribute Prohibited content (obligations in relation to Prohibited content).
5.23 Any definition of content would need to be both broad and platform-neutral, and should include:
- content that is made available online;
- content that is published or distributed in ‘offline’ media formats such as books, magazines, computer games, films and DVDs; and
- content that is broadcast on free-to-air and subscription television.
5.24 The category of persons and organisations who would be subject to obligations in relation to particular content are referred to in this Report as ‘content providers’. In general terms, a content provider is a person or organisation that sells, screens, provides online, or otherwise distributes content to the public. As discussed below, in some circumstances, non-commercial content providers will have obligations to classify or restrict access to content. However, these obligations would not apply to persons uploading content, other than on a commercial basis, to a website.
5.25 This section briefly explains to whom the ALRC intends obligations should apply, including by discussing how provisions of the Act might operate in different contexts.
5.26 The ALRC does not make recommendations on exactly how legislative provisions should be drafted to achieve these intended results. The drafting of the legislative provisions may require definitions of ‘content’ and ‘content provider’, as well as references to conduct, such as selling or distributing content that gives rise to obligations. As discussed below, the eventual legislative language may also be influenced by the Australian Government’s response to the Convergence Review—and parallel reform of broadcasting and telecommunications regulation more generally.
Obligations to classify
5.27 An important consideration is that obligations to classify under the new Act will only apply to content that has been made and is distributed on a commercial basis. Leaving aside online content, the main contexts in which obligations to classify will arise under the new Act concern films, computer games and television.
5.28 In relation to films, the process by which a film for cinema release is made available to the public may involve a producer, a distributor and an exhibitor. The producer would generally have no obligation to classify content because it does not directly provide the content to the public. The exhibitor would have an obligation not to exhibit an unclassified film—and, therefore, an obligation to ensure the film is classified before exhibition. However, in practice, distributors are generally in the best position to apply for the classification of films because they have access to the content in advance of exhibition and deal with multiple film releases.
5.29 Therefore, the obligation to classify should be broad enough to apply to a distributor who ‘sells’ the film to an exhibitor knowing that the film is to be screened to the public by the exhibitor. The obligation to classify should not, however, apply to an entity earlier in the chain of creation and distribution—for example, a distributor who sells the film to another distributor.
5.30 Similarly, the creators of a console-based computer game would generally have no obligation to classify it. A retailer would have an obligation not to sell an unclassified game (with a likely classification of MA 15+ or higher)—and therefore, an obligation to ensure the game is classified before being offered for sale. Distributors who sell games to retailers would also have an obligation to classify them.
5.31 In practice, the obligation to classify might be discharged at any point along the chain of distribution and where this is may depend on industry practices and contractual arrangements. Where more than one entity has failed to comply with an obligation to classify, the Regulator should be able take action against one or more parties.
5.32 In the case of broadcast television, the broadcaster provides the content to the public and has an obligation to classify content.
5.33 In general, where films, games or television content are provided to the public through an internet website, any obligation to classify would apply to a person or organisation that uploads content on a commercial basis, as well as the website owner.
Obligations to restrict access
5.34 As distinct from obligations to classify content, under the Classification of Media Content Act obligations to restrict access to content would extend to non-commercial or user-created content. However, the obligation is only applicable to content that is likely to be R 18+ and X 18+ content, and is limited to taking ‘reasonable steps’ to restrict access to such content.
5.35 The obligation to restrict access to R 18+ and X 18+ magazines and DVDs would apply to retailers, such as newsagencies, book stores and specialist adult shops. It would also apply to publishers and distributors, who may have to mark their products with warnings and perhaps package their content in opaque plastic.
5.36 In relation to films for cinema release, the obligation to restrict access to content—for example, to ensure that an R 18+ film is shown only to adults—would apply only to an exhibitor, who controls entry to the cinema.
5.37 Similarly, an obligation to restrict access to a console-based computer game—for example, to ensure that an R 18+ game is sold only to adults—would apply to a retailer who sells games to the public.
5.38 The obligation to restrict access to broadcast television content would rest with the broadcaster. The ALRC does not envisage that existing restrictions on R 18+ or X 18+ content being broadcast on commercial television or subscription television services would be altered under the new Act.
5.39 The obligation to restrict access to content on a website would lie primarily with the website owner, who controls how the content is made available to the public. However, an organisation or individual uploading content made and distributed on a commercial basis would also have an obligation to take reasonable steps to restrict access to R 18+ and X 18+ content.
5.40 In the case of a commercial content provider, such as a television production company or the online site of a television network, this obligation might include an obligation not to provide R 18+ and X 18+ content through a content platform that does not restrict access to adults.
Obligations in relation to Prohibited content
5.41 Under the Classification of Media Content Act, obligations in relation to Prohibited content would be broad in application and apply to all content providers, commercial and non-commercial, and to internet intermediaries such as internet access providers who do not otherwise have obligations to classify or restrict access to content.
5.42 For example, where Prohibited content is uploaded onto a website by an individual, that individual may commit an offence under the 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. An internet access provider may have an obligation to filter the content, particularly where the website owner is located overseas.
Recommendation 5–4 The Classification of Media Content Act should provide that obligations to classify or restrict access to content apply to persons or organisations who sell, screen, provide online, or otherwise distribute content to the public (‘content providers’).
 The Broadcasting Services Act contains definitions of ‘content’ and ‘content service’, which might form one useful starting point, expanded to apply to books, magazines, films and DVDs, and including its exclusions for content such as SMS and emails: Broadcasting Services Act 1992 (Cth) sch 7 cl 2.
 For example, by using the concept of a ‘content service enterprise’ to help define commercial content that should be required to be classified: Department of Broadband, Communications and the Digital Economy, Convergence Review: Interim Report (2011), 5. The ACMA has identified current legislative definitions of ‘content service’ and ‘content service provider’ as ‘broken concepts’ in the convergent media environment, through which ‘content is treated differently across different distribution networks and devices’ and there is different regulatory treatment according to delivery platforms: Australian Communications and Media Authority, Broken Concepts: The Australian Communications Legislative Landscape (2011), 40, 47.
 The specific contexts in which content may be required to be classified are discussed in more detail in Ch 6.
 See Ch 6.
 See Ch 10.
Broadcasting Services Act 1992 (Cth) sch 2 cls 7(1)(g), 10(1)(f), 10(1)(g).