ALRC’s views

10.80 The ALRC is mindful that the Australian Government’s proposed mandatory ISP filtering scheme is based upon an ‘RC content list’ and that the Government is waiting for the outcome of the ALRC’s review of the RC classification before implementing the scheme. Accordingly, the questions about RC in the Issues Paper were directed at eliciting responses about the media content that should be prohibited online. The ALRC makes no comment about the merits or otherwise of such a filter.

10.81 Submissions to this Inquiry expressed divergent views about the scope of RC—both offline and online. In light of this, and consistent with promoting platform neutrality,^[138] any reform of the RC classification needs to consider more than just what media content should be entirely prohibited online.

10.82 As noted above, most respondents to the Issues Paper who addressed the issue considered the RC category to be too broad to be applied effectively in a convergent media environment. At the same time, very few submissions favoured the abolition of an RC category—most of those who considered the category to be too broad, as currently constituted, nonetheless were of the view that some material, particularly real depictions of actual child sexual abuse or actual sexual violence, is so contrary to both criminal law and community standards that it should be banned outright. In a convergent media environment, this necessitates the filtering of such content so that it is not accessible from personal electronic devices such as computers and mobile phones. It is no longer possible to quarantine the ‘online’ world from that of other media platforms.

10.83 The ALRC has responded to these interlinked issues as follows. First, the ALRC makes a proposal for certain RC content to be specifically stated in the classification decision so that it may assist the implementation of any ISP filtering. Secondly, the ALRC has commissioned a pilot study to research community standards in regard to the current higher level classification categories (MA 15+ up to and including RC).

Certain RC content to be specified in the classification decision

10.84 The ALRC proposes that the Classification of Media Content Act should provide that, if content is classified RC, the classification decision should state whether the content comprises real depictions of actual child sexual abuse or actual sexual violence. This content may then be added to any blacklist of content that must be filtered at the ISP level.

10.85 The ALRC has proposed this sub-set of content within the current RC category as content that could be filtered at the ISP level within Australia for a number of reasons. As Dr Lyria Bennett Moses, from the Faculty of Law of the University of New South Wales, noted in respect of ‘child pornography’:

• this material is internationally condemned;

• the censorship is based on different goals and purposes to some other RC material, for example, it ‘is rightly treated as falling outside even a broad notion of freedom of speech’;

• it may warrant a different regulatory response to other RC material, for example, ‘[t]he community expects an active police response … including the prosecution of those responsible for its production’; and

• there are avenues for regulating access to this material that do not exist with other RC material, for example, by way of international co-operation.^[139]

10.86 Finally, a number of submissions identified real depictions of actual child sexual abuse and actual sexual violence, such as rape, as content that should be entirely prohibited—both online and offline.

Researching community standards and RC content

10.87 In Chapter 2, the ALRC proposed a guiding principle for reform that communications and media services available to Australians should broadly reflect community standards, while recognising a diversity of views, cultures and ideas in the community.^[140] The ALRC is mindful that gauging community standards from the views of those who submit comments to a public consultation may not adequately represent the diversity of opinions in the community as a whole. Moreover, such views may not have been derived from consideration of actual media content in the higher level categories.

10.88 In light of this question, the ALRC has commissioned a pilot study to consider the current higher level classification categories, from MA 15+ up to and including RC, for the purpose of assessing what content may or may not be applicable in these categories. The ALRC has been developing this pilot study in collaboration with the Australian Government Attorney-General’s Department and the Department of Broadband, Communications and the Digital Economy. The study is being conducted by consultants Urbis Keys Young.

10.89 The pilot study involves bringing together a representative group of members of the community to view classifiable content that causes concern to people, and to consider the weighting of elements applied in the current Code as well as other possible elements, in order to advise on classification against current and proposed classification categories. The material may be violent, offensive and confronting, and participants have been advised of the nature of the material to be shown. The representative group is being recruited through advertisements in print and online media throughout Australia, as well as through the ALRC’s website.

10.90 In addition to the public participants in the pilot study, a control group has been established comprised of people with prior experience of, and/or publicly stated opinions on, the current classification guidelines. The intention is to be able to check community views against those of people who regularly engage with debates about, or otherwise interact with, Australia’s classification scheme.

10.91 The pilot study will be conducted over October–November 2011, and results will be made available to the ALRC in advance of the release of the Final Report. Findings from the pilot study may inform recommendations on the RC category, as well as providing a possible methodology for ongoing research into the classification categories.^[141]