Media convergence and ‘broken concepts’ in legislation

3.37 In its paper Broken Concepts: The Australian Communications Legislative Landscape, the ACMA identified seven broad regulatory consequences of convergence for the media domains for which it has regulatory responsibility.^[29] Insofar as these concern the Broadcasting Services Act and its provisions as they relate to media classification, they are also relevant to the ALRC’s inquiry.

3.38 The seven ‘broken concepts’ which the ACMA identified in its study were:

(1) misalignment of policy and legislative constructs with market changes, technological changes and consumer behaviour;

(2) inconsistencies in the treatment of devices and content, and gaps in the existing framework’s coverage of new forms of content and applications—for example, the very different treatment of broadcasting services as defined under the Broadcasting Services Act and programs delivered over the Internet;

(3) misplaced emphasis on the legislative framework that skews regulatory activity towards traditional media and communications activity;

(4) blurring of boundaries between historically distinct devices, services and industry sectors, leading to inconsistent treatment of like content, devices or services;

(5) piecemeal responses to new issues, which has added unnecessary layers of complexity to legislation;

(6) questions regarding the applicability of mechanisms for enforcing existing community standards over new forms of content delivery; and

(7) institutional ambiguity regarding which government entity has responsibility for particular industries or activities, meaning that either several regulators or no regulators have a clear mandate to address market or consumer concerns. ^[30]

3.39 All of these problems can be identified in the current media classification scheme. It over-classifies some media, such as DVDs and computer games, while failing to classify other media, such as mobile apps, at all. It applies platform-based classification guidelines that map inconsistently onto new forms of devices and content, and applies cost and regulatory burdens unevenly across media industries in ways that are poorly related to community standards and potential public interest concerns.

3.40 The current classification scheme is inherently difficult to adapt to convergent media, due to the fragmentation of regulatory agencies and administrative oversight, as well as the division of authority between the Commonwealth, the states and territories. Piecemeal responses to changes in technologies, markets and consumer behaviour have served to accentuate this institutional ambiguity, creating uncertainty for both consumers and industry, and blurring questions of responsibility for driving change.