Determining what content should be classified

6.4 One of the main functions of classification law is to enable the provision of advice or information to consumers to help them choose entertainment for themselves and their families. This is of particular importance to parents and guardians. Most films and computer games that are classified in Australia receive advisory classifications (G, PG and M), to which no legal access restrictions apply.[2] However, classification laws are also intended to identify higher-level content, to warn adults and protect minors.

6.5 These goals might suggest that most content should be classified. However, for reasons discussed in this chapter, this is not practically possible or cost-effective, even if industry played a greater role in classification decision making. This section outlines some of the key matters that the ALRC considered when determining what content it recommends should be required to be classified.

Volume of content

6.6 There are over one trillion websites, hundreds of thousands of ‘apps’ are available to download to mobile phones and other devices, and every minute over 60 hours of video content are uploaded to YouTube (one hour of content per second).[3] Submissions to this Inquiry consistently pointed to the sheer volume of content that is now available, particularly online, and the impossibility of having Australian classifiers watch and formally classify all of it. Civil Liberties Australia, for example, submitted that the ‘sheer volume of content available today simply makes mandatory classification impractical’.[4] Likewise, the Arts Law Centre submitted that it is:

clearly impractical and too costly for the Government to classify all content being delivered via the internet. This inevitably must lead to the conclusion that there should be less formal regulation of content in Australia.[5]

6.7 The volume of content is one of the key reasons the ALRC recommends, in Chapter 7, a greater role for industry classifiers in the new scheme. If industry had a greater role in classification, it may be possible to classify more content. However, if classification is to remain a rigorous process—meaning that content is watched and assessed by trained classifiers applying formal criteria—it is still not possible to have all media content classified. To do so would impose a significant regulatory burden on content providers and create laws that would be difficult to enforce. As Telstra submitted,

Ineffective or inconsistently enforced classification obligations aid nobody. End users are disadvantaged as ineffective classification obligations risk giving a false sense of security reducing self vigilance or creating confusion about remedies.[6]

6.8 An effective regulatory outcome must account for the volume of media content now available to Australians.

Cost and regulatory burden

6.9 Classification is a costly process, involving trained professionals viewing and assessing content against formal criteria. The fee for the Board to classify a 90 minute film is $730, and if the film is for public exhibition, the fee is $2,180. Even if industry classifiers can perform this work at a lower cost, there will still be a significant cost to be met by distributors, a cost which would likely be passed on to consumers. Requiring content to be classified, some submitted, would simply send the content outside Australia. John Denham, for example, submitted:

Since Australia represents a tiny proportion of the world market, this proposal would act as a market restriction, preventing access to the Australian market for small developers, who will simply ignore the Australian market and move their operations overseas.[7]

6.10 Meeting classification costs may be particularly disadvantageous to sole traders and small-to-medium enterprises that form the backbone of an emergent digital media content sector.[8] Identical regulatory requirements, Telstra submitted, can have ‘dramatically different compliance burdens’. For example,

requiring formal ex ante classification of both high cost, professional film productions intended for mass market theatre distribution to low cost and amateur video productions intended for a niche online audience would have a dramatically different impact on each party.[9]

6.11 These obligations, Telstra submitted, can also ‘inhibit innovation and discourage new entrants from developing new content’.[10]

6.12 The cost to industry of classifying media content suggests the obligation to classify should be limited and focused. This is consistent with the principle that regulation should be kept to the minimum needed to achieve a clear public purpose.[11]

Platform neutrality

6.13 The convergence of media technologies has undermined many of the distinctions that underpin the current classification scheme, and suggests that the platform on which content is delivered should not determine whether the content should be classified.[12]

6.14 Currently, similar content may be subject to different regulatory requirements, classification processes and rules, depending on the medium, technology, platform or storage device used to access and deliver the content. For example, the same film may be subject to up to five different regulatory requirements, as it is shown in cinemas, sold or rented as a DVD, accessed through the internet, and broadcast on free-to-air or subscription television.

6.15 Some submissions observed that consumers simply do not recognise—or care about—the distinctions between platforms.[13] The Senate Legal and Constitutional Affairs Committee also noted this difficulty:

Significantly, one of the shortcomings of the scheme is that it is not platform neutral. That is, it does not provide for a consistent classification decision-making framework in a converged media environment … The committee recommends that, to the extent possible, the National Classification Scheme should apply equally to all content, regardless of the medium of delivery.[14]

6.16 Arguments for consistency or parity may also suggest there should be less regulation.[15] If it is prohibitively costly to regulate content delivered on one medium (for example, the internet), then it may be argued that the content should also not be regulated when delivered on other media (for example, DVDs).

6.17 The ALRC recommends that the laws concerning what must be classified in Australia should be platform neutral. That is, the obligation to classify content should be framed without reference to the media platform from which the content is accessed—for example, whether the content is broadcast, sold on DVD, screened in cinemas, or provided on mobile phones or online.

6.18 Excluding online content would quickly make classification policy irrelevant. However, if certain online content must be classified, then for practical reasons, the classification obligation must be narrowed in other ways.

European Union’s Audiovisual Media Services Directive

6.19 The European Union has gone some way towards a more platform-neutral regulation of television-like content. The European Union’s Audiovisual Media Services Directive (the AVMS Directive),[16] issued on 19 December 2007, extends television broadcasting regulations, including those concerning the protection of children, to audiovisual media services on the internet.[17]

6.20 The AVMS Directive applies to ‘audiovisual media services’.[18] The intention of the drafters was to encompass all kinds of media content which are ‘television-like’, and to this end, ‘audiovisual media services’ are defined broadly. Article 1 of the AVMS Directive states that ‘audiovisual media services’ are services ‘under the editorial responsibility of a media service provider’ which have the principal purpose of providing programs ‘to inform, entertain or educate the general public.’[19]

6.21 ‘Programs’ are further defined as ‘a set of moving images with or without sound … whose form and content is comparable to the form and content of television broadcasting’ and include ‘feature-length films, sports events, situation comedies, documentaries, children’s programmes and original drama’.[20] Certain categories of audiovisual media are excluded from regulation, namely user-generated videos and private websites,[21] electronic versions of newspapers and magazines,[22] and games of chance, online games and search engines.[23]

Community expectations

6.22 Community expectation, though difficult to gauge, may also be a useful guide to what must be classified. Submissions to this inquiry suggest that the Australian community expect classification information for feature films, television programs and computer games—though perhaps because this is the content they are accustomed to seeing classified. Many Australian content providers have given their customers or viewers classification information for this content for many years.

6.23 Although some have called for the classification of ‘everything’, there appears to be only a limited community expectation that books, magazines, websites, podcasts, user-generated film clips, and other online content be formally classified.[24]

[2] The annual reports of the Classification Board indicate that 71% of the films and computer games classified by the Classification Board between July 2005 and June 2010 were classified G, PG or M.

[3] YouTube, The Official YouTube blog <> at 30 January 2012.

[4] Civil Liberties Australia, Submission CI 1143.

[5] The Arts Law Centre of Australia, Submission CI 1299.

[6] Telstra, Submission CI 1184.

[7] J Denham, Submission CI 2464.

[8] See Australian Mobile Telecommunications Association, Submission to Senate Legal and Constitutional Affairs Reference Committee Inquiry into the Australian Film and Literature Classification Scheme 2010. More generally on small-to-medium enterprises in the creative economy, see T Cutler, Venturous Australia: Building Strength in Innovation (2008).

[9] Telstra, Submission CI 1184.

[10] Ibid. See also Arts Law Centre of Australia, Submission CI 2490.

[11] See Ch 4, Principle 7.

[12] In the Issues Paper, the ALRC asked whether the technology or platform used to access content should affect whether content should be classified, and, if so, why: Australian Law Reform Commission, National Classification Scheme Review, ALRC Issues Paper 40 (2011), Question 3. Convergence is discussed further in Ch 3.

[13] For example, MLCS Management, Submission CI 1241. See also Ch 4 of this Report.

[14] Senate Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme: Achieving the Right Balance (2011).

[15] See L Bennett Moses, ‘Creating Parallels in the Regulation of Content: Moving from Offline to Online’ (2010) 33 University of New South Wales Law Journal 581, 594: ‘The desire for similar outcomes for offline and online content regulation is, however, a contested ambition. If similar outcomes are impossible or can only be achieved with significant costs or negative side effects not encountered offline, then an attempt to achieve parity of outcome is undesirable’.

[16] European Parliament, Directive on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, Directive 2010/13/EU (2010) (AVMS Directive).

[17] The AVMS Directive amends the original 1989 Television Without Frontiers Directive, which regulated television broadcasting in Europe after the development of satellite television in the 1980s.

[18] European Parliament, AVMS Directive, art 1.

[19] Ibid, art 1(a)(i).

[20] Ibid, art 1(b).

[21] Ibid, recital 21.

[22] Ibid, recital 28.

[23] Ibid, recital 22.

[24] See, for example, Australian Communications and Media Authority, Digital Australians—Expectations About Media Content in a Converging Media Environment: Qualitative and Quantitative Research Report (2011), 3, 4.