Obligations for online content

5.43 Some stakeholders expressed concern about imposing classification-related obligations in relation to non-commercial online content, and noted that the Broadcasting Services Act imposes obligations to assess online content only on ‘commercial content service providers’.

5.44 Under the Broadcasting Services Act, a commercial content service provider is defined as a content service that ‘(a) is operated for profit or as part of a profit-making enterprise; and (b) is provided to the public but only on payment of a fee (whether periodical or otherwise)’.[21]

5.45 In the ALRC’s view, paragraph (b) of this definition is inappropriate as a limitation on obligations to classify or restrict access to online content, because the vast bulk of content on the internet is freely available to users. Where online content is provided on a commercial basis, this is typically funded through the sale of associated advertising space.

5.46 The OECD has observed that it is increasingly difficult to maintain a strong distinction between commercial content on the one hand, and user-created content (UCC) on the other.

Although conceptually useful it has become harder to maintain the … UCC characteristic of creators not expecting remuneration or profit and creation being outside of professional routines. UCC may have begun as a grassroots movement not focused on monetary rewards, but monetisation of UCC has been a growing trend.

Established media and Internet businesses have increasingly acquired UCC platforms for commercial purposes. Some users are remunerated for their content and some become professionals after an initial phase of non-commercial activity. Some works are also created by professionals outside of their commercial activities (eg, professional video editors creating a film at home). The term UCC may thus cover content creation by those who are much more than just ‘users’.[22]

5.47 At the same time, there are concerns about potential overreach, in terms of the types of online content that might become subject to classification-related obligations—for example, personal blogs and individual postings onto chat sites. One stakeholder commented that

most entities producing content are non-commercial (eg, private individuals), who should not need a lawyer and should not need to pay the Classification Board or an industry classifier before making content available online.[23]

5.48 There are many dimensions to whether the size and degree of commerciality of an online content provider should determine whether content provided by it should be subject to content regulation.

5.49 First, there are questions of regulatory parity and competitive neutrality. If television-like services can be accessed from the new generation of ‘Smart TVs’ through platforms such as Google’s YouTube, or through the ‘catch-up TV’ content platforms such as Yahoo!7, then why should YouTubeor a comparable service be exempt from content regulations while ‘catch-up TV’ services are not? Should Channel 7 be exempt from content regulation when providing content online, but not in the case of broadcast content, even if it is the same program, or additional related content (such as ‘behind-the-scenes’ material for a reality television program)?

5.50 Secondly, there are an increasingly diverse range of environments in which online content is accessed—at home, at school, on mobile devices—and changing community expectations about its accessibility, particularly to children. In some respects, the media environment is heading towards a ‘post-internet’ regime of convergent media, where the distinction between ‘smart devices’ such as personal computers and television, is blurring and all devices are enabling greater user interactivity.

5.51 Lilian Edwards has observed that there has been a growing expectation worldwide that governments can, and should, regulate access to some online content and that personal freedoms in the shared online space are not absolute:

By the 2000s, the cyber-libertarian tendency had retreated and it had become well established that nation states had both the right to regulate, and an interest in regulating, the Internet, and in particular, an interest in protecting children—as the Internet ceased to be the plaything of only academics, researchers and geeks, and became part of daily social and family life.[24]

5.52 Such issues are by no means unique to the classification of media content. They arise in relation to matters as diverse as copyright protection, competition law, and the provision of local content. Historically, platform-specific regulations have tended to apply more stringent regulations to some media than to others. For example, content regulations have been applied most stringently to commercial free-to-air broadcasting services. This was justified in part by provisions associated with a licence to broadcast, and in part by the perceived degree of influence of these broadcasting services.

5.53 Both licence-based requirements and the ‘influence’ concept have been identified by the ACMA as ‘broken concepts’ in a convergent media environment:

When considered individually, each of [these] concepts retains some effectiveness within their defined boundaries. However, when considered collectively against enduring policy goals, they provide a confusing regulatory framework that is already struggling to accommodate new types of online content and services.[25]

5.54 The Convergence Review Committee proposed that a ‘new content and communications regulatory policy framework’ be built around the concept of a ‘content service enterprise’.[26] The term is intended to be technology-neutral in its application and to capture those large media-related enterprises that would be subject to obligations relating to content standards, media diversity and Australian content.

5.55 In determining what would constitute a content service enterprise, the Convergence Review Committee recommends the use of ‘threshold criteria relating to the scale and nature of operations involved in supplying content services’. It states that these criteria might include:

  • the viewer/user/subscriber base meeting a threshold
  • the service originating in Australia or being intended for Australians
  • the provider having the ability to exercise control over the content
  • the operating revenue or commercial scale of the enterprise meeting a threshold.[27]

5.56 In its Digital Australians report, the ACMA observed that Australians find the question of who produced the content—traditional media organisations or individuals—to be as significant a factor in shaping expectations about content regulation as the question of whether it is delivered online or through traditional media platforms. The report states that:

Most research participants distinguished offline or traditional media, such as newspapers, television and radio, from the internet or online content, but delivery platform was not the most important distinction that they made. The more important distinction was between types of content.

Content produced by traditional media organisations—whether for print or broadcast, and whether offline or online—was seen as professional content, produced for broad audiences.

Consumers appeared to bring their expectations of regulation from traditional, familiar media to similar content accessed online. Recognition of traditional media organisations by consumers was high. Similarly, branded content online was usually expected to meet the same or comparable standards as offline content. Whether professional content was broadcast or online, most consumers expected it to meet general community standards for taste and decency. For example, print, broadcast and online stories from traditional, reputable news organisations were expected to meet the same journalistic standards for accuracy and fairness.

Content produced by individuals and posted on the internet was seen as user-generated and there was very little expectation that it would adhere to any standards, apart from the need for it to be legal, and meet the terms and conditions of use of the site it was posted to.[28]

5.57 In relation to the application of regulation, the Convergence Review Committee proposed that ‘obligations focus on the entity or enterprise that provides the service and the nature and scale of that service, rather than the mode of delivery’, observing that the Digital Australians report found ‘Australians expect branded online content to meet the same or comparable standards as offline content’.[29]

5.58 At the same time, in considering the application of the concept of ‘Content Service Enterprises’, the Convergence Review Committee took the view that ‘emerging services, start-up businesses and individuals should not be captured by unnecessary requirements and obligations’. It nonetheless argued that ‘all content providers will still be subject to some requirements, such as those protecting children from harmful content’.[30]

5.59 As discussed below, the ALRC shares the view that there is not a clear line between ‘big media’ on the one hand, and user-created content on the other, in terms of community expectations about appropriate safeguards in relation to the forms of online content that are available on an unrestricted basis. It is recognised, however, that the size and nature of the entity producing and distributing content online would be a factor to be considered in relation to obligations to classify or restrict access to content, as well as in relation to classification enforcement provisions.

5.60 If the concept of a ‘content service enterprise’ is adopted in future media regulation, it could help meet expectations that some classification-related obligations be applied on a basis that distinguishes content providers operating on a large-scale commercial basis from individuals and non-profit online content providers.

[21] Ibid sch 7 cl 2.

[22] Organisation for Economic Co-operation and Development, Participative Web: User Created Content (2007), 18.

[23] J Trevaskis, Submission CI 2493.

[24] L Edwards, ‘Pornography, Censorship and the Internet’ in L Edwards and C Waedle (eds), Law and the Internet (2009), 626.

[25] Australian Communications and Media Authority, Broken Concepts: The Australian Communications Legislative Landscape (2011), 82.

[26] Department of Broadband, Communications and the Digital Economy, Convergence Review: Interim Report (2011), 5.

[27] Ibid, 5.

[28] Australian Communications and Media Authority, Digital Australians—Expectations About Media Content in a Converging Media Environment: Qualitative and Quantitative Research Report (2011), 3.

[29] Department of Broadband, Communications and the Digital Economy, Convergence Review: Interim Report (2011), 5.

[30] Ibid.