ALRC’s proposals

Codes and co-regulation

11.36 In the ALRC’s view, it is not clear that optimal conditions for self- or co-regulation exist in any particular area that is currently subject to classification obligations. While in some areas there may be market incentives for content providers to classify—for example, because distributors and consumers of some products want and expect advice about content—these incentives do not exist in other areas.

11.37 Classification of media content is an area in which the community expects government to set rules in legislation. In the ALRC’s view, there is a strong community expectation that government will ensure that at least some media content is reviewed according to statutory classification criteria before being made available, and that access to at least some classified media content should be restricted by law. The Classification Act provides a model for the classification of publications, films and computer games based on direct regulation and legislative rules.

11.38 In contrast, schs 5 and 7 of the Broadcasting Services Act (and the Broadcasting Services Act more generally, including in relation to television content) provide a co-regulatory approach. For example, the commercial broadcast and subscription television industries may develop their own methods of classifying programs that reflect community standards, subject to some legislative requirements.^[34]

11.39 The ALRC’s proposed new National Classification Scheme combines elements of both approaches. This is consistent with the reform principles that the classification regulatory framework should be adaptive to different technologies, platforms and services; and regulation should be kept to the minimum needed to achieve a clear public purpose.^[35]

11.40 For example, the ALRC proposes retaining mandatory classification by the Classification Board of films for cinema release and computer games with content likely to be rated MA 15+ or higher. However, it is proposed that most other content, including broadcast and subscription television content, and television programs and films not for cinema release, would be subject to regimes based on industry classification of content.

11.41 The use of codes would introduce an element of co-regulation not previously present in regulating publications, films and computer games. However, because codes of practice under the new Classification of Media Content Act would have to be consistent with statutory classification obligations and criteria, these codes may be characterised as closer to direct regulation than co-regulation. Industry would only be free to develop its own rules within the constraints of the legislative requirements.

11.42 In some areas, classification is a lower level concern for consumers and the effort or cost of government regulation is not justified. Recognising this, the ALRC proposes that some content no longer be subject to any classification obligations—including some publications and computer games likely to be classified lower than MA 15+.

Content of industry classification codes

11.43 In Chapter 9, the ALRC proposes that the new Classification of Media Content Act should provide for one set of statutory classification categories and criteria to be applied across media content, irrespective of the delivery platform. The statutory classification criteria are the factors to be taken into account in the classification decision-making process, including factors currently set out in the Classification Act, the Classification Code and Classification Guidelines.

11.44 While the statutory classification criteria would provide some guidance to classification decision makers on how different types of content should be classified and treated, codes of practice could provide more detailed guidance on interpreting and applying these classification categories and criteria in various contexts. For example, statutory classification criteria would provide that there be an R 18+ category for content with high impact violence, across all media. However, a code of practice relating to the classification of films might explain how interactivity should be taken into account in assessing film content specifically; and a code of practice relating to internet content might explain how to assess film sequences embedded in an ‘e-book’.

11.45 More generally, there are a range of matters that are too detailed or media-specific to be included in statutory classification criteria. For example, the ALRC proposes that statutory obligations be placed on online content providers to restrict some online content to adults, including by using restricted access technologies. Codes of practice may be used to provide flexible guidance and industry rules on such technologies, including on matters such as the promotion and distribution of parental locks and user-based PC-filtering.

11.46 Codes of practice might also contain guidance on how classification markings should be displayed in different media. The ALRC proposes that the Classification of Media Content Act provide that a suitable classification marking should be displayed on media to the extent that this is reasonable and practicable and consistent with the statutory classification categories. Exactly what this means for marking an online computer game, or an R 18+ website, might be clarified in codes of practice.

11.47 The proposed Act would be silent on whether television programs need to be classified separately or as a series, or about time zone restrictions. Such issues could continue to be addressed in a code of practice for television.

11.48 The proposal for codes of practice would also allow participants in media content industries to develop their own arrangements in areas where statutory classification or other obligations do not apply, provided these are consistent with the proposed single set of classification categories and criteria.

11.49 For example, it is proposed that there be no statutory obligation to classify computer games likely to be classified lower than MA 15+. Participants in the computer game industry might, nevertheless, choose to develop a code of practice governing how industry participants should classify games likely to be classified below MA 15+. Classification of these games might involve, for example, the use of a self-assessment process such as a ‘sophisticated questionnaire specifically designed to generate and assign a classification for computer games in the Australian market’.^[36] Under the ALRC’s proposals, participants in the computer game industry might also choose to use an authorised classification instrument, or have their own instrument approved by the Regulator for this purpose.^[37]

11.50 Some existing self-regulatory codes may continue to operate alongside the proposed new Classification of Media Content Act. For example, the Recorded Music Labelling Code of Practice developed bythe Australian Recording Industry Association (ARIA) and the Australian Music Retailers Association (AMRA)^[38]applies a three-tiered labelling scheme (Level 1, Level 2 and Level 3)^[39] to CDs and other recorded music products. The Recorded Music Labelling Code of Practice is adhered to by ARIA and AMRA members on a voluntary basis.^[40]

11.51 Under the new Act there would be, in practice, no statutory obligation to classify music^[41]—only an obligation to restrict access to R 18+ content. This obligation is consistent with the obligation under the Recorded Music Labelling Code of Practice to restrict access to Level 3 recorded music products. The Recorded Music Labelling Code of Practice would continue to operate as a self-regulatory regime.

11.52 However, ARIA and AMRA would also have the option of bringing these arrangements under the new Act as a code. Provided the new code was considered to be consistent with the classification criteria provided by the Act, it could be approved by the Regulator, giving the code a legislative basis, but otherwise leaving the operation of the music labelling scheme untouched.

11.53 The scheme of industry self-regulation applying to advertising under the AANA Code of Ethics could also continue to operate alongside the proposed new Classification of Media Content Act, and the statutory obligation to restrict access to advertising likely to be R 18+.^[42] The House of Representatives Standing Committee on Social Policy and Legal Affairs recommended that the Attorney-General’s Department review advertising regulation and, ‘if the self-regulatory system is found lacking’, impose a ‘co-regulatory system on advertising with government input into advertising codes of practice’.^[43]

11.54 If the Government were to determine that advertising content should be subject to new classification obligations—for example, so that outdoor and billboard advertisements likely to be rated M or higher are not permitted—a code of practice under the Classification of Media Content Act could provide guidance on assessing advertisements using the criteria for this classification category.

Approval and enforcement of codes

11.55 In order to approve a code under sch 7 of the Broadcasting Services Act,^[44] the ACMA must be satisfied that the body or association developing the code represents a particular section of the media content industry and that there has been adequate public and industry consultation on the code. In this context, the ALRC notes that it may sometimes be problematic to define what constitutes a particular section of the media content industry—particularly in the online environment.

11.56 The ALRC proposes that the Regulator under the new Classification of Media Content Act similarly be empowered to approve a code of practice. The code should also be required to be consistent with the statutory classification obligations, categories and criteria applicable to media content covered by the code.

11.57 As discussed above, there are a range of mechanisms by which industry codes of practice may be made enforceable. Under sch 7 of the Broadcasting Services Act, compliance with a code is effectively voluntary (or left to the industry to enforce), unless the ACMA directs a particular participant in the industry to comply.^[45] In addition, in some circumstances, a code may be replaced with an industry standard that binds all participants in the industry.^[46]

11.58 A slightly different approach is taken, for example, under the Competition and Consumer Act 2010 (Cth), which provides that regulations may declare an industry code, or specified provisions of an industry code, to be mandatory or voluntary.^[47]

11.59 The ALRC proposes that, where a code of practice relates to media content that must be classified, the Regulator should have the power to enforce compliance with the code against any participant in the relevant part of the media content industry. Compliance with a code of practice that relates to media content that is not subject to statutory classification obligations should be voluntary. The ALRC remains interested in comments on how and when compliance with an industry classification code of practice should be enforceable.