8.7 The primary purpose of requiring some content to be classified is to provide people with information or warnings to help them choose media entertainment for themselves and their families. Classification markings and consumer advice are the principal means of communicating that information.
8.8 The ALRC recommends that the new Act should provide that content providers must display a classification marking for content that must be classified and has been classified. This marking should be shown, for example, before broadcasting the content, on packaging, on websites and programs from which the content may be streamed or downloaded, and on advertising for the content. A similar proposal in the Discussion Paper was broadly supported in submissions.
Markings rules should be in industry codes
8.9 Currently, classification symbols or markings must generally be displayed on packaging and advertisements for submittable publications, films and computer games. If some content has not been classified, advertising must display a ‘Check the Classification’ (CTC) marking. Legislative instruments prescribe, in some detail, where and how markings must be displayed. The objective of the Classification (Markings for Films and Computer Games) Determination 2007 (Cth) is to ‘ensure that consumers have ready access to clear classification information to inform their choices about films and computer games’.
8.10 For classified television content, the markings requirements are prescribed in industry codes, approved by the Australian Communications and Media Authority (the ACMA). The code for commercial free-to-air television provides that:
Clearly visible classification symbols must accompany all press advertising of programs on behalf of a licensee, and all program listings in program guides produced by a licensee.
8.11 This code also provides that for any program required to be classified:
an appropriate classification symbol of at least 32 television lines in height, in a readily legible typeface, must be displayed for at least 3 seconds at the following times: as close as practicable to the program’s start; as soon as practicable after each break; … in any promotion for the program.
8.12 Effective classification regulation relies on clear and consistent classification markings. In the ALRC’s view, content providers should not be free to mark their product in whichever way they please. However, content and advertising is now delivered in many different ways—on various platforms or devices and through various websites, applications and computer programs. This suggests that markings rules may be better placed in industry codes, than legislative instruments. Such codes can be more flexible and informed by industry and developments in technology. In the Discussion Paper, the ALRC proposed that the new Act contain a high-level principled rule concerning the display of classification markings, and that the detail of how and where such markings should be displayed—where this detail is necessary—should be in industry codes.
8.13 Several stakeholders agreed that these marking requirements should be set out in industry codes. Free TV Australia (Free TV), for example, submitted that this would‘enable each industry to develop a regime that is suitable for the content delivery environment’:
Because industry codes can be amended more easily than legislation, such an approach will also provide more flexibility. If there are changes to the content delivery environment, the codes can be amended accordingly.
Markings only required for content that must be classified
8.14 In the Discussion Paper, the ALRC proposed that these marking requirements should apply to content that must be classified and has been classified. The Advertising Standards Bureau suggested that the marking requirements should perhaps apply to content that must be classified or has been classified. Although the ALRC encourages the voluntary classification of some content, including lower level computer games, it seems unreasonable to impose a marking obligation on content providers who choose to have their content classified. A content provider may choose to classify a website, for example, to ensure it is not R 18+, and so not subject to proposed laws requiring providers to take reasonable steps to restrict access. If the content is then classified M or MA 15+, the content provider would then be under no obligation to restrict access. It would be unfair to impose a markings obligation on content providers that only choose to classify their content out of caution.
8.15 However, it would be open to content providers to use markings for content they classify voluntarily. The ALRC anticipates that some content providers will consider it desirable to classify and mark their content, despite there being no mandatory requirement to do either.
8.16 In Chapter 7, the ALRC recommends that the Regulator should have the power to deem certain content to have an Australian classification, if the content has been given an equivalent classification under a system approved by the Regulator. Some content may be deemed to be classified, even though it is not content that must be classified. This is important so that content providers who voluntarily classify content, perhaps so they can sell their content with Australian classification markings, may take advantage of this deeming scheme. However, other content providers should not necessarily be required to mark their content because it is deemed to be classified, if they would not otherwise be required to classify or mark their content.
8.17 The ALRC recommends that the Regulator’s ‘deeming’ power should be broad and flexible, so that content providers may take advantage of rigorous international classification decision making processes. However, this broad power should not result in placing an unreasonable regulatory burden on content providers who have no reason to provide Australian classification information. Accordingly, in the ALRC’s view, only content that must be classified (and has been classified) should be required to display classification markings.
8.18 Classification markings should not be incorrect or misleading. The new Act should contain relevant provisions to this effect, similar to those in existing state classification enforcement legislation. However, the ALRC suggests that an exception may be made for the X 18+ marking, considering this symbol is widely understood through much of the world to be a symbol for pornography.
8.19 Several submissions noted the difficulty of requiring online content hosted overseas to carry Australian classification markings. Civil Liberties Australia, for example, said that companies in Australia might use Australian classification markings, but ‘it is difficult to see anyone providing content intended for an international audience complying with this requirement’.
8.20 Some submissions called for the recognition of international classification markings. The Internet Industry Association submitted that, in respect of online content,
the classification regime should accommodate and recognise overseas classifications of content. This might occur by, perhaps, requiring that the overseas classification be displayed with the content, with a notice clearly indicating the country where the classification was made. Consumers might then also be provided with a link to information regarding the meaning of the foreign classification or an industry approved interpretation of the foreign classification in terms of local standards. This approach would greatly enhance the ability of online providers to source and make available a wider range of content.
8.21 Google noted that much content on the Android Market is rated by the person who uploads the content. These ratings, Google submitted,
apply globally, so while they tend to roughly approximate to the Australian content rating categories, there are differences. Requiring specific markings therefore becomes problematic, whereas if the framework were to recognise similar systems for markings, the policy objective may be achieved in a workable way.
8.22 The ALRC has sought to accommodate some of these concerns by recommending a narrower range of content that must be classified, and by confining mandatory classification requirements to content that is likely to have a significant Australian audience, and to content that is made and distributed on a commercial basis. Providers of such content should, in the ALRC’s view, have an obligation to provide Australian classification information—particularly considering that this is, by definition, content that is likely to have a significant Australian audience.
8.23 The Australian classification markings are integral to the National Classification Scheme. The value of the scheme depends on the Australian public recognising and understanding the symbols. The requirements to display these symbols for certain content should not be removed lightly. However, the Australian Government could consider whether the Regulator should also be given the power to determine, in some circumstances, that content that must be classified may carry international classification markings, rather than the equivalent Australian classification marking.
8.24 Some global platforms, particularly those of new or emerging content providers, may not be able to tailor classification markings to the countries from which users access the content. Those who cannot provide such information could perhaps also be taken to comply with their markings obligations if their website or platform directs users to where Australian classification information can be found.
8.25 In any event, because many Australians access content provided with international classification markings, the Regulator could provide information about the meaning of common international classification markings to assist Australian audiences.
Recommendation 8–1 The Classification of Media Content Act should provide that content providers must display a classification marking for content that must be classified and has been classified. This marking should be shown, for example, before broadcasting the content, on packaging, on websites and programs from which the content may be accessed, and on advertising for content directed to Australian audiences.
 The classifications themselves are discussed in Ch 9. This section relates to when and how the markings for those classifications should be displayed.
 See Recs 6–1 and 6–2 for the content that the ALRC recommends must be classified.
 Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 8–5.
 See, eg, Free TV Australia, Submission CI 2519; Arts Law Centre of Australia, Submission CI 2490, Advertising Standards Bureau, Submission CI 2487; Outdoor Media Association, Submission CI 2479; D Henselin, Submission CI 2473, Watch On Censorship, Submission CI 2472; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469.
 For example, ‘A person must not sell a film unless the determined markings relevant to the classification of the film, and any consumer advice applicable to the film, are displayed on the container, wrapping or casing of the film’: Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 15(1). ‘A person must not publish an advertisement for a classified film, classified publication or classified computer game unless: (a) the advertisement contains the determined markings relevant to the classification of the film, publication or computer game and relevant consumer advice’: Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 42(1).
Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 8. The current instruments are the Classification (Markings for Films and Computer Games) Determination 2007 (Cth) and the Classification (Markings for Certified Exempt Films and Computer Games) Determination 2007 (Cth).
Classification (Markings for Films and Computer Games) Determination 2007 (Cth) s 5.
 Free TV Australia, Commercial Television Industry Code of Practice (2010) <http://www.freetv
.com.au/content_common/pg-code-of-practice.seo> at 15 September 2011, cls 2.18, 2.19.
 Ibid, cls 2.18, 2.19.
 Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 8–5.
 Free TV Australia, Submission CI 2519; Foxtel, Submission CI 2497; Interactive Games and Entertainment Association, Submission CI 2470.
 Free TV Australia, Submission CI 2519.
 See Recs 6–1 and 6–2 for the content the ALRC recommends must be classified.
 Advertising Standards Bureau, Submission CI 2487.
 See Ch 10.
 The ALRC also recommends in Ch 7 that this power may be used to classify any film, television program or computer game, rather than only the content that the ALRC recommends should be required to be classified.
 For example, the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 15(2)–(3) provides that ‘A person must not sell an unclassified film if the container, wrapping or casing in which the film is sold displays a marking that indicates or suggests that the film has been classified’ and ‘A person must not sell a classified film if the container, wrapping or casing in which the film is sold displays a marking that indicates or suggests that the film is unclassified or has a different classification’.
 Civil Liberties Australia, Submission CI 2466.
 Internet Industry Association, Submission CI 2528.
 Google, Submission CI 2512 (original emphasis).