Classification criteria

Existing criteria

9.66 Under the existing classification framework, films, computer games and publications that advocate the doing of a terrorist act must be classified RC,[68] but otherwise must be classified in accordance with the National Classification Code (the Code) and either the Guidelines for the Classification of Publications or the Guidelines for the Classification of Films and Computer Games.[69] Online content referred to the Classification Board for classification is also classified under this decision-making framework. Likewise, industry assessors make classification recommendations for television series, computer games and additional content in films, and content assessors assess online content in accordance with the criteria and guidelines set out under the National Classification Scheme.

9.67 Under the Code, classification decisions are to give effect to, as far as possible, principles such as that ‘adults should be able to read, hear and see what they want’ and ‘minors should be protected from material likely to harm or disturb them’.[70]

9.68 While the Classification Act sets out the classification categories for publications, films and computer games,[71] in Adultshop.Com Ltd v Members of the Classification Review Board, the Full Court of the Federal Court explained that the ‘criteria for differentiating between the classifications is found in a combination of the Code and the Guidelines’.[72] The Code features separate tables, with distinct criteria, for publications, films and computer games which are ‘prescriptive’.[73]

9.69 The classification guidelines ‘help explain the different classification categories, and the scope and limits of material suitable for each category’.[74] Importantly, the guidelines do not stand alone, as ‘they are to be read with the Code as a means of assisting the Board in applying its criteria’.[75] A separate set of guidelines exists for publications while films and computer games are currently covered by the one set of combined guidelines.[76]

9.70 In addition, the Classification Act sets out the following matters that must be taken into account in the making of a classification decision:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults;

(b) the literary, artistic or educational merit (if any) of the publication, film or computer game;

(c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and

(d) the persons or class of persons to or amongst whom it is published or intended or likely to be published.[77]

9.71 The television codes of practice each contain details on the classification process for making decisions in relation to the media content they broadcast. While some of the industry codes refer to the Guidelines for the Classification of Films and Computer Games for the classification of films they broadcast, and incorporate similar principles that apply under the existing National Classification Scheme, the extent and manner in which they do so varies between broadcasters.[78]

Common classification criteria for media content

9.72 The ALRC recommends the introduction of common classification criteria that should be used to classify all media content in the same way, whether it is computer games, television programs or online content. Common classification criteria should enable classifiers to assess media content by having regard to the different features of media content which is more relevant in a convergent media environment.

9.73 To give effect to this recommendation, the separate tables for publications, films and computer games, in the current Code should be consolidated into one media content table that provides a broad, high-level description of the content permitted in each of the classification categories. It would also mean combining the separate classification guidelines for publications with the classification guidelines for films and computer games and accounting for relevant elements of guidelines used by other platforms, such as television.

9.74 Many submissions favoured common classification criteria for application to all media content, regardless of the delivery platform. As suggested by the Arts Law Centre of Australia:

It would also be useful to consolidate the various codes and guidelines so there was one set of rules or guidelines that applied to classifiable content, regardless of the platform by which it was delivered.[79]

9.75 The Classification Board also questioned whether the existing separate and media-specific classification criteria are the best system for the future,

with new technology, formats and platforms to see/hear/read material (digital ebooks, digital magazines, downloads of movies direct from the internet to mobile phone, ipad, TV, computer), and material no longer being confined to being a physical product.[80]

9.76 Common classification criteria for all media content would remove the current anomaly requiring webpages to be classified under the Guidelines for the Classification of Films and Computer Games.[81] As the former Office of Film and Literature Classification observed as early as 2001, technical advancements have blurred the distinction between films and computer games:

The issues raised by the convergence of media are not reflected in the existing classification scheme where different standards (or guidelines) are applied to publications, films and computer games. An approach where classification standards vary on the basis of the format or medium in which the content is distributed is increasingly difficult to maintain.[82]

9.77 The same classification criteria should be able to be applied to any type of media content—not just films, computer games and television programs that would be classified under the ALRC model. Content providers may choose to have other content classified, for example, art catalogues, books, radio programs or podcasts. In Chapter 10, the ALRC recommends that all content likely to be adult content must be restricted to adults. The classification criteria should therefore facilitate classification decision-making for all these purposes.

9.78 The ALRC considers it increasingly problematic to use classification guidelines that are distinguished according to traditional notions of what a film, computer game, television program or publication is. In the context of media convergence, it is essential that classification criteria account for features of content regardless of the form it may take. For example, e-books and computer games now incorporate film sequences. As MLCS Management contended, if there is a concern that ‘some aspects of computer game content (such as interactivity) need special consideration, that matter should be emphasised for all media types’.[83]

9.79 A new classification scheme should also be capable of responding to new forms of media content and new features used to enhance content, quickly and efficiently. MLCS Management argued, for example, for the need to ‘future proof the guidelines against technological and content change’:

The combined guidelines for films and computer games have been a useful tool for their users—the Classification Board and industry assessors. Their lack of detail provides flexibility that the Classification Board needs to make decisions that reflect constantly changing community standards. It also serves to make them applicable to different media types.[84]

9.80 The same thresholds and limits on content permitted in each classification category should also apply across all forms of media content. For example, if strong coarse language is permitted at the MA 15+ classification, then this should be the same threshold for language at MA 15+ for television programs, computer games or online content. It is the role of the classifier to determine whether the item exceeds the stated limits of the category and therefore should be assigned a higher classification.

9.81 Some submissions did not support combined classification criteria. The ACCM asserted that, while uniformity of classification categories and markings may be useful for consumers, it does not follow that the criteria underlying every classification need to be the same for all media or platforms—such uniformity can be justified only if the evidence is that the experience offered by all those media or platforms is the same.[85] Similar concerns, that combined classification criteria would not be able sufficiently to account for differences in forms of content, were raised in relation to the classification of publications.[86]

9.82 In the ALRC’s view, a more uniform approach does not—nor should it—prevent the classification criteria from taking account of differences between content, for example, text versus moving images. However, it is neither practical nor meaningful to make classification decisions using multiple sets of guidelines for multiple types of media content with different thresholds and limits for the same classification category.

9.83 This broad logic was the basis for introducing common classification categories and markings in 2005 and combining the previously different and separate classification guidelines for films and computer games in 2003. The need for guidelines that could be used to classify convergent media was foreshadowed by Dr Jeffrey Brand in his report analysing submissions on the draft combined classification guidelines, in which he stated that, ‘if not now, then in the very near future the Guidelines for media forms will need to be combined’.[87]

9.84 Common classification criteria can and should account for the critical differences between media content, by considering the features of content—such as sound, moving images, interactivity, still images, text—and give guidance on how those features might affect the impact and the classification of the media content. It was submitted that:

The classification scheme should be consistent across all media formats and as such should take into account any themes, concepts or imagery which may be depicted more vibrantly in any given media format. For example, in literature, violence is described through descriptive language as opposed to the visual imagery of violence and gore found in film.[88]

9.85 As an example, the current Guidelines for the Classification of Films and Computer Games that were combined and introduced in 2003 include explicit guidance on the treatment of interactivity (including specific limits on certain interactive content). Rather than refer to interactivity as a feature of computer games only, the guidance is framed in media-neutral terms so as not to exclude the possibility that interactivity might be a feature of other types of content as well.

9.86 The ALRC considers this media neutrality necessary and appropriate in order to account for interactive content whether it is a feature of a computer game or film or any other form of new media content available in future. The same goes for other features of content, including production techniques, such as slow motion, colour, close-ups, 3D, repetition, animation, sound effects, lighting—all of which may contribute to a greater or lesser impact for a particular item of content.

9.87 The recommendation for common classification criteria for all media content runs counter to the July 2011 decision of Censorship Ministers to introduce separate Guidelines for the Classification of Computer Games in preparation for the introduction of an R 18+ classification for computer games.[89] However the ALRC considers that concerns regarding interactivity and violence could be addressed under combined guidelines, as is currently the case.

Text and still images

9.88 The existing Guidelines for the Classification of Films and Computer Games provide a suitable template for new classification guidelines as they were developed following a comprehensive review process.[90] In 2005, with input from academics, classification experts and the public, these guidelines were significantly re-engineered including changes to their presentation, the language used and their structure.

9.89 The Guidelines for the Classification of Publications contain constructive and valuable guidance that would serve as a useful starting point for assessing content comprised of text and still images, as distinct from moving images or interactivity that are covered currently. For example, new classification guidelines should account for, among other things, ‘written references’, ‘text depictions’ and ‘descriptions’.

9.90 In the ALRC’s view, developing new guidelines for all media content that give due consideration to the features and properties of text and still image based content—and that do not necessarily lead to further restrictions or bans on content that is currently lawfully available—is possible.

9.91 For example, the Classification Board advised that the current Guidelines for the Classification of Publications for the Category 1 Restricted classification specify that,

actual sexual activity may not be shown in realistic depictions … Simulated or obscured sexual activity involving consenting adults may be shown in realistic depictions … Genital contact is not permitted to be shown in realistic depictions.[91]

Therefore, consistent with the Guidelines for the Classification of Films and Computer Games, Category 1 Restricted publications may fit appropriately into the R 18+ category that permits realistically simulated sexual activity and nudity.

9.92 Likewise, the ALRC considers that, consensual sexually explicit activity of the type currently classified Category 2 Restricted may be appropriately accommodated in the X 18+ classification. However some submissions expressed concerns that if this recommendation were implemented, depictions of some activity such as ‘consenting adult fetishes’ might be banned because such depictions are currently permitted in the Category 2 Restricted classification under the Guidelines for the Classification of Publications but not permitted in the X 18+ classification under the Guidelines for the Classification of Films and Computer Games.[92]

9.93 New guidelines could permit, for example, still images of certain activity, while prohibiting moving images of the same activity.[93] Permitting content in a certain form, that might be limited or not permitted in another form, is already provided for under the Guidelines for the Classification of Films and Computer Games. For example: drug use is permitted in R 18+ classified films; while provisions regarding interactivity state that as a general rule, material that contains drug use related to incentives or rewards is Refused Classification.[94]

9.94 The ALRC acknowledges that drafting new guidelines to incorporate the substance of the Guidelines for the Classification of Publications may not be a straightforward exercise, particularly as it would require careful attention to distinctions that allow for content in publications that may not be currently allowed in films and computer games.[95]

9.95 The ALRC considers that the drafting of new guidelines should be undertaken with relevant expert advice and in consultation with industry and the public. Concerns about anomalies between content currently permitted in publications but not in films and computer games—for example certain fetish activity—might also be addressed through further research into community views on the scope of the Prohibited classification category.[96]

9.96 Concerns that the new guidelines would not be able to be reengineered adequately to account for the unique features of publications and other text or still-image based content,[97] on balance, is not of itself justification for maintaining separate guidelines.

Statutory criteria

9.97 The ALRC considers that there should be a consistent process for making classification decisions, regardless of who is classifying the media content and which industry sector they represent. As many submissions agreed, consumers should be confident that a ‘PG classification’ means the same thing and contains the same level of content no matter what the media platform.

9.98 Consistent decision making, including reviewing original classification decisions, may be best achieved by establishing ‘statutory classification criteria’ that provide for the same standards and requirements for classification decision-making by all classifiers. Telstra submitted that ‘it does not believe there is any evidence supporting the need for differing statutory classification criteria for different forms of content’.[98] Furthermore,

Multiple classification criteria across different forms of content increase regulatory compliance costs for industry. In this context, development of a single set of statutory classification criteria would not reduce the level of information or protection provided to consumers, while providing increased certainty and reduced costs to industry.[99]

9.99 The ALRC recommends that the Classification of Media Content Act should provide for one set of ‘statutory classification criteria’ and that all classification decisions be made applying these criteria. As the National Film and Sound Archive asserted, ‘consistency in criteria would promote consistency in classification decision-making for the benefit of all audiences’.[100]

9.100 ‘Statutory classification criteria’ refers to the criteria that should be applied and the matters that should be taken into account by all classifiers making classification decisions under the new classification scheme: that is, the criteria currently provided for under s 9A and the matters set out under s 11 of the Classification Act; the principles and criteria detailed in the consolidated Code (as discussed above); and the combined classification guidelines (as discussed above).

9.101 Currently under the Classification Act, content must be classified ‘in accordance with the Code and the classification guidelines’.[101] This means the guidelines are binding. However, in the ALRC’s view, classification guidelines should instead help classifiers apply the Code[102] and the Code should be paramount. This better accords with the plain meaning of the word ‘guidelines’, and should ensure that classifiers will not need to try to determine whether the code and the guidelines are consistent.

Primary or subordinate legislation?

9.102 The classification categories, the general matters or principles that must be taken into account when making a classification decision and the Code should all be set out in the Classification of Media Content Act.

9.103 The Code should be a schedule to the Act. Given that the Code establishes the crucial boundaries on content at each classification, it is appropriate that the Parliament consider changes that might relax or increase restrictions or provide for new prohibitions. Parliamentary responsibility meets concerns such as those expressed by one stakeholder, that a Commonwealth-only classification scheme would result in a single Commonwealth Minister ‘being empowered to unilaterally determine and change the classification criteria in the National Classification Code’.[103]

9.104 A separate legislative instrument should set out the new media content classification guidelines, so that they may be more readily amended to respond flexibly to changing community attitudes and technological developments.[104]

9.105 This would better facilitate periodic review of the classification guidelines while also providing for parliamentary scrutiny and the legislative instrument’s disallowance.[105] The classification guidelines should be reviewed in consultation with key industry stakeholders including providing for the input of state and territory governments and the public, and in light of relevant research.

9.106 For easy reference of classifiers and consumers alike, the statutory classification criteria should be made available in one consolidated document published by the Regulator.

Industry codes

9.107 Industry codes could explain elements of the statutory classification criteria or provide additional guidance on the application of the criteria by citing industry-relevant examples. This may include guidance on considering audience and context relevant to ‘niche’ content, such as arts programs or content intended for particular communities such as indigenous television programming. Alternatively, the computer games industry might expand on the examples provided in the statutory classification criteria to explain how interactivity might affect impact. Some industry codes might find it useful to provide illustrative examples of ‘mild coarse language’ or ‘sexual activity that is mild and discreetly implied’ to better demonstrate to classifiers the type of content that might meet these tests.

9.108 The ALRC considers that detail in industry codes should not be interpretative or introduce new criteria or alter limits on the content permitted at different categories. Nothing in industry codes that elaborates on the classification decision-making process should be inconsistent with the statutory classification criteria.

9.109 The ALRC notes that subscription television uses the Guidelines for the Classification of Films and Computer Games to classify films and drama programs without further elaboration in their codes. Likewise, industry assessors that make classification recommendations for television series, computer games and additional content in films and content assessors that assess online content, all currently apply the Guidelines for the Classification of Films and Computer Games. This would indicate that the current guidelines are a practical and useful source of guidance that can be ably applied by classifiers and assessors dealing with many different types of media content. The ALRC therefore suggests that the level of detail and composition of the recommended media content classification guidelines should parallel the existing Guidelines for the Classification of Films and Computer Games.

Recommendation 9–3 The Classification of Media Content Act should provide for one set of statutory classification criteria and that classification decisions be made applying these criteria.

[68]Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 9A(1).

[69] Ibid s 9.

[70]National Classification Code 2005 (Cth) cl 1.

[71]Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 7.

[72]Adultshop.Com Ltd v Members of the Classification Review Board (2008) 169 FCR 31, [42].

[73] Ibid, [43].

[74]Guidelines for the Classification of Films and Computer Games (Cth).

[75]Adultshop.Com Ltd v Members of the Classification Review Board (2008) 169 FCR 31, [47].

[76] The ALRC notes the agreement of State and Territory Censorship Ministers to develop separate classification guidelines for computer games in preparation for the introduction of an R 18+ category for computer games: see Standing Committee of Attorneys-General, Communiqué 21 & 22 July 2011.

[77]Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 11. The Classification Board must take these matters into account, or ‘have regard’ to them; they are not criteria or standards: Adultshop.Com Ltd v Members of the Classification Review Board (2008) 169 FCR 31, [42]–[44].

[78] For further details of classification criteria and guidelines used by the television industry refer to the respective codes of practice for ABC, SBS, Free TV Australia and ASTRA.

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

[80] Letter from Donald McDonald, Director Classification Board to ALRC, 6 May 2011.

[81]Broadcasting Services Act 1992 (Cth) sch 7 cl 25.

[82] Office of Film and Literature Classification, A Review of the Classification Guidelines for Films and Computer Games: Discussion Paper, (2001).

[83] MLCS Management, Submission CI 1241.

[84] Ibid.

[85] Australian Council on Children and the Media, Submission CI 2495.

[86] ACP Magazines, Submission CI 2520, I Graham, Submission CI 2507.

[87]A Review of the Classification Guidelines for Films and Computer Games: Assessment of Public Submissions on the Discussion Paper and Draft Revised Guidelines, (2002), prepared by Dr Jeffrey Brand for the Office of Film and Literature Classification.

[88] Confidential, Submission CI 1980.

[89] Standing Committee of Attorneys-General, Communiqué 21 & 22 July 2011. The proposed new Guidelines for the Classification of Computer Games are available on the classification website at <www.classification.gov.au>.

[90]A Review of the Classification Guidelines for Films and Computer Games: Assessment of Public Submissions on the Discussion Paper and Draft Revised Guidelines, (2002), prepared by Dr Jeffrey Brand for the Office of Film and Literature Classification.

[91] Classification Board, Submission CI 2485.

[92] A Hightower, Submission CI 2511, I Graham, Submission CI 2507; Lin, Submission CI 2476.

[93] Eros Association, Submission CI 2530.

[94] The Classification Guidelines for Films and Computer Games refer to ‘interactivity’ as including the use of incentives and rewards, technical features and competitive intensity.

[95] I Graham, Submission CI 2507; Lin, Submission CI 2476.

[96] See Ch 11.

[97] ACP Magazines, Submission CI 2520.

[98] Telstra, Submission CI 2469.

[99] Ibid.

[100] National Film and Sound Archive of Australia, Submission CI 1198.

[101]Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 9.

[102] This is consistent with the ALRC’s 1991 report that proposed draft legislation providing for guidelines to be issued ‘to help people apply the classification criteria set out in the code’. Australian Law Reform Commission, Censorship Procedure, ALRC Report 55 (1991), 74.

[103] I Graham, Submission CI 2507.

[104] Some submissions noted this as a benefit of keeping the more detailed elements of the classification process, such as the classification guidelines, separate from primary legislation: See MLCS Management, Submission CI 1241; Interactive Games and Entertainment Association, Submission CI 1101.

[105] See Legislative Instruments Act 2003 (Cth)pt5.