29.09.2011
Broadcasting Services Act
14.22 Under schs 5 and 7 of the Broadcasting Services Act, the ACMA investigates complaints about online content that the complainant believes to be ‘prohibited content’ or ‘potential prohibited content’. The determination of whether online content is prohibited is made with reference to the National Classification Code and Classification Board decisions. The ACMA and content or hosting service providers may apply to the Board for classification of content.[13] The steps the ACMA may take following an investigation, including the issuing of a take-down notice, are summarised in Chapter 2.
14.23 Schedules 5 and 7 of the Broadcasting Services Act provide for a range of offences, punishable by criminal, civil and administrative penalties.
14.24 Schedule 5 contains criminal offences concerning contravention of ‘online provider rules’,[14] including contravening an industry code or industry standard.[15]
14.25 The maximum penalty for contravening an online provider rule or an ACMA direction with respect to an online provider rule is 50 penalty units ($5,500)[16] for an individual and $27,500 for a body corporate. These are continuing offences, so that a person who contravenes the provisions is guilty of a separate offence in respect of each day during which the contravention continues.[17]
14.26 Schedule 7 provides criminal, civil and administrative penalties for non-compliance with ‘designated content/hosting service provider rules’, which include the rules relating to prohibited content.[18]
14.27 It is a criminal offence to contravene a designated content/hosting service provider rule[19] or a written direction from the ACMA with respect to a contravention of such a rule.[20] The maximum penalty for these offences is 100 penalty units ($11,000) for an individual and $55,000 for a body corporate. Again, these are continuing offences.
14.28 In addition, sch 7 provides that these contraventions are ‘civil penalty provisions’ and a person is deemed to commit a separate contravention in respect of each day during which the contravention continues.[21] Such penalties must not exceed the maximum penalty that could have been imposed on conviction for the corresponding criminal offence.[22]
14.29 Finally, a range of administrative ‘quasi-penalties’[23] apply to contraventions of designated content/hosting service provider rules. For example, where there is a contravention, the ACMA may apply to the Federal Court for an order that the person cease providing the designated content/hosting service.[24] In addition, contraventions of civil penalty provisions may have an effect on related ACMA decisions under the Broadcasting Services Act—for example, in relation to whether a company is a suitable licensee or a suitable applicant for a licence, such as a subscription television broadcasting licence.[25]
State and territory online content regulation
14.30 Some state and territory enforcement legislation contains provisions dealing with matters beyond the classification of publications, films and computer games and including the regulation of online content. For example, the Classification (Publications, Films and Computer Games)(Enforcement) Act 1995 (Vic), among other things, makes it an offence to ‘use an on-line information service to publish or transmit, or make available for transmission’ objectionable material, child pornography or ‘material unsuitable for minors’—the latter category being defined by reference to classification categories.[26]
14.31 At the time the Broadcasting Services (Online Services) Bill 1999 (Cth) was introduced, it was intended that the Commonwealth would be responsible for regulating the activities of internet service providers and internet content hosts and the Attorney-General would encourage the development of uniform state and territory offence provisions, creating ‘offences for the publication and transmission of proscribed material by users and content creators’. However, such a scheme did not eventuate and the regulation of internet content in the states and territories continues to ‘vary drastically’.[27]
[13]Broadcasting Services Act 1992 (Cth) sch 7 cl 22.
[14] See Ibid sch 5 cls 79, 82, 83.
[15] For example, provisions of the Internet Industry Association, Internet Industry Code of Practice: Content Services Code for Industry Co-regulation in the Area of Content Services (2008), obliging internet service providers to make Internet Industry Association Family Friendly Filters available.
[16]Broadcasting Services Act 1992 (Cth) sch 5 cls 82–83.
[17] Ibid sch 5 cl 86.
[18] Ibid sch 7 cl 53(6).
[19] Ibid sch 7 cl 106.
[20] Ibid sch 7 cl 108.
[21] Ibid sch 7 cls 107, 108(7)–(8).
[22] Ibid s 205F(4).
[23] Administrative ‘quasi-penalties’ have been defined as those administrative actions that require the exercise of discretion that goes beyond a mechanistic application of the relevant legislation—such as licensing decisions—as opposed to true administrative penalties where monetary penalties are imposed administratively as with, for example, charges and interest payable under the Taxation Administration Act 1953 (Cth): see Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, ALRC Report 95 (2002), [2.124], [2.146].
[24]Broadcasting Services Act 1992 (Cth) sch 7 cl 110.
[25] Ibid s 98.
[26]Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) ss 56, 57, 57A, 58.
[27] C Penfold, ‘Child Pornography Laws: The Luck of the Locale’ (2005) 30(3) Alternative Law Journal 123, 125.