Guiding Principles

Principle 1: Individual rights

Australians should be able to read, hear, see and participate in media of their choice.

4.7 The National Classification Code as it currently exists contains the unambiguous statement that ‘adults should be able to read, hear and see what they want’.^[2] Similarly, the Broadcasting Services Act 1992 (Cth) contains a statutory objective ‘to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information’.^[3]

4.8 While the National Classification Code requires that this principle be understood alongside other principles in the making of classification decisions, the right of adults to have access to the media of their choice has informed media policy in general, and classification policy in particular, and received wide support in submissions to this Inquiry.^[4]

4.9 Such a principle is consistent with art 19 of the United Nations Universal Declaration of Human Rights and art 19 of the International Covenant on Civil and Political Rights (ICCPR).^[5] The former states that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.^[6]

4.10 The ICCPR provides that this right includes the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice’, but may be subject to restrictions necessary for ‘respect of the rights or reputations of others’ or ‘the protection of national security or of public order … or of public health or morals’.^[7]

4.11 The rise of the internet has arguably further strengthened individual free speech, which lies at the heart of the contemporary global media and communications landscape. The internet enables not only access to a much wider range of media content than traditional mass communications media, but empowers its users to more readily become participants in the creation and distribution of media content. In light of this, the Convergence Review has identified as one of its guiding principles that:

Australians should have access to and opportunities for participation in a diverse mix of services, voices, views and information.^[8]

4.12 In proposing this principle, the Convergence Review noted ‘the importance for Australians not only to have access to content but also to have the ability to take part in the two-way interaction that new technology allows’.^[9]

4.13 The United Nations Special Rapporteur on Freedom of Opinion and Expression has stated that:

Approaches to regulation developed for other means of communication—such as telephony and broadcasting—cannot simply be transferred to the Internet, but, rather, need to be specifically designed for it.^[10]

4.14 Dr Gregor Urbas and Tristan Kelly suggested that the internet has been strongly associated with the right to freedom of expression in democratic societies:

The Internet provides a unique medium for free expression. In the US case ACLU v Reno, Dalzell J stated: ‘The Internet is a far more speech-enhancing medium than print, the village green, or the mails’.^[11]

4.15 Several stakeholders in this Inquiry also observed that media users are increasingly the creators as well as the recipients of media content, and there is an associated need to extend the right to communicate to the right to participate in the media. Google argued that:

At a time when technology has delivered the potential for users to access, create and distribute content anywhere and at any time, and when innovation is resulting in ever new ways for that engagement to occur, it is imperative that Australian content regulations not operate as a roadblock to innovation, nor a fetter on the free flow of legal content.^[12]

4.16 The ALRC proposes that adults should not only be able to read, see and hear what they want—within the parameters of the law—but that this principle should extend to a more general right to communicate, which includes the right to participate in the media of their choice, and to be the producers and senders as well as the receivers of information and media content.

Principle 2: Community standards

Communications and media services available to Australians should broadly reflect community standards, while recognising a diversity of views, cultures and ideas in the community.

4.17 In the Australian classification system as it has evolved from the 1970s to the present, the right of adults to freely access information, communication and entertainment media of their choice has been tempered by other social and cultural factors. The National Classification Code makes explicit reference to the idea that members of the community should not be inadvertently exposed to material that they may find offensive, by referring to the principle that ‘everyone should be protected from exposure to unsolicited material that they find offensive’.^[13]

4.18 The general matters that the Classification Board is to have regard to are outlined in s 11 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth):

The matters to be taken into account in making a decision on the classification of a publication, a film or a computer game include:

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

(b) the literary, artistic or educational merit (if any) of the publication; and

(c) the general character of the publication, 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 is intended or likely to be published.

4.19 The National Classification Code also refers to the need to take account of community concerns about ‘depictions that condone or incite violence, particularly sexual violence’ and ‘the portrayal of persons in a demeaning manner’.^[14]

4.20 The ‘community standards’ and ‘reasonable adult’ principles are applied in other relevant media legislation. The Broadcasting Services Act makes reference to such principles in s 3, which states that the objects of the Act include to: ‘encourage providers of broadcasting services to respect community standards in the provision of program material’; ‘ensure designated content/hosting service providers respect community standards in relation to content’; and ‘restrict access to certain internet content that is likely to cause offence to a reasonable adult’.^[15]

4.21 In its submission to the ALRC, the Communications Law Centre observed:

It is one of the primary, fundamental responsibilities of government to maintain a community standard of public decency. This responsibility applies to every aspect of society. For example, members of the community are not permitted by law to behave in public in any manner that they can. A system of classification and censorship of content should maintain a community standard of public decency in content and communications in Australia … [As] a community we have a right to assert that there are some materials which are so far contrary to fundamental human rights, or which are such an attack on basic human dignity, or which are so depraved, obscene, destructive or criminal that we do not admit them into our community even for adults.^[16]

4.22 A similar point was made by the Australian Council on Children and the Media, which identified among its core principles for a National Classification Scheme:

To give voice to the community’s recognition of the powerful contribution media experiences make to the shaping of individuals and society;

To prevent the dissemination of content that is injurious to the public good.^[17]

4.23 What constitutes offensiveness is not necessarily fixed or certain, and what is offensive to one person may be entertaining, humorous or informative to another. In 1997, the then Attorney-General for Australia, the Hon Daryl Williams MP, noted that:

The ‘reasonable adult’ test is used in two different senses—as a measure of community standards and also as an acknowledgment that adults have different personal tastes … In other words, although some reasonable adults may find the material offensive, and thus justify a restricted classification for it, others may not.^[18]

4.24 Any community standards test presents the challenge of recognising the diversity of views and ideas in the community, and the cultural diversity of contemporary Australian society.

4.25 However, the challenges of diversity to any form of classification system are accentuated by media convergence, the proliferation of media content and globalisation.

4.26 Among the factors that Chris Berg and Tim Wilson from the Institute of Public Affairs identified as pointing towards a ‘radical rethink of the principles and justification for classification’ included: the shift of media onto the internet and internet-enabled home entertainment systems; the expansion of ‘niche’ media targeting smaller audiences and narrower interests; and an ‘increasingly multicultural society seeking media produced for ethnic diasporas’.^[19]

4.27 The relevance of more media content being accessed from the home was also raised in submissions. Civil Liberties Australia argued that ‘most new technological platforms are accessed only in the context of private use’, and that ‘internet access, regardless of the platform, is clearly a private use context, in contradistinction to the cinema context’.^[20] Dr Nicolas Suzor of the Faculty of Law, Queensland University of Technology proposed that ‘in the online environment … it is much less important to take into account community concerns about content, since content accessed online is generally searched for, not inadvertently accessed’.^[21]

4.28 At the same time, the ALRC is of the view that the development of the internet does not in itself provide a rationale for abandoning restrictions on content or regulations based on community standards. The requirement that all such access remains within the bounds of the law continues to be important. The child protection association, Bravehearts, noted that the principle that ‘adults should be able to read, hear and see what they want’ must include the caveat ‘within the bounds of the law’.^[22]

Principle 3: Protection of children

Children should be protected from material likely to harm or disturb them.

4.29 In referring the National Classification Scheme Review to the ALRC, the Attorney-General had regard to

the impact of media on children and the increased exposure of children to a wider variety of media including television, music and advertising as well as films and computer games.^[23]

4.30 The National Classification Scheme makes a distinction between the ‘responsible adult’ on the one hand, and children on the other. This is expressed in the National Classification Code as the principle that ‘minors should be protected from material likely to harm or disturb them’.^[24]

4.31 In relation to broadcasting and online content, the Broadcasting Services Act has statutory objectives to ‘ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them’, and to ‘protect children from exposure to internet content that is unsuitable for children’.^[25]

4.32 The protection of children was also identified as a primary objective of the National Classification Scheme in submissions.^[26] The Queensland Commission for Children and Young People and Child Guardian considered that:

the primary objectives of a national classification scheme should incorporate protections for children, clear advice to parents and caregivers and considerations of how to promote their wellbeing, positive development and best interests when classifying material.^[27]

4.33 Others made reference to the United Nations Convention on the Rights of the Child (CROC), to which Australia is a signatory. Among the relevant clauses of CROC are provisions that States Parties shall ‘[e]ncourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being’ and prevent the ‘exploitative use of children in pornographic performances and materials’.^[28]

4.34 Some submissions pointed out that the distribution of child pornography has increased considerably through the internet, and that there is a need to address issues relating to the circulation of such material differently to questions concerning access of adults to pornography more generally. Urbas and Kelly, for example, noted that:

According to the US Government, circulation of child pornography had been almost completely eradicated by the mid-1980s. However, the Internet has provided a new means of distribution, and this is now considered a multi-billion dollar industry. The apparent anonymity of the Internet allows paedophiles to share material easily, while the Internet’s international reach allows access to material produced in any country to be accessed globally.^[29]

4.35 The ‘right’ of adults to be able to access material freely and the need to protect children need not be conflicting principles. Telstra argued, for example, that the classification system should have two ‘end-user focused’ objectives of protecting children from material that may be harmful and empowering adults, within reason, to decide for themselves the media content that they wish to consume.^[30]

Principle 4: Consumer information

Consumers should be provided with information about media content in a timely and clear manner, and with a responsive and effective means of addressing their concerns, including through complaints.

4.36 In referring the review to the ALRC, the Attorney-General had regard to the ‘need to improve classification information available to the community and enhance public understanding of the content that is regulated’.^[31]

4.37 The National Classification Code provides that all members of the Australian community have the right not to be exposed to unsolicited material that they find offensive. The Broadcasting Services Act requires that broadcasters and providers of online content not only respect community standards, but also ensure means for addressing complaints about broadcasting services and certain internet content.^[32]

4.38 Classification principles require the provision of information to the public about the material that has been classified. Members of the public should also be able to have their concerns addressed when they believe that a classification may be in error, or that content has been made available that is in breach of classification rules.

4.39 Several submissions stated that the provision of appropriate information to enable consumers to make informed decisions about media content should be a primary principle of the National Classification Scheme.^[33] The Australian Subscription Television and Radio Association observed that ‘content classification should empower parents to be confident when making decisions on the content they allow their children to see’.^[34]

4.40 Civil Liberties Australia emphasised the consumer information dimension of classification, stating that the ‘primary objective must be to equip people with the information they need to decide whether they want to purchase or experience particular content beforehand’.^[35]

4.41 The current National Classification Scheme framework has been criticised as being confusing to the public.^[36] The Senate Legal and Constitutional Affairs References Committee observed that the current framework for complaints handling is confusing to the public, and recommended the establishment of a classification complaints ‘clearinghouse’ as a one-stop shop for administering complaints:

Consumers need to be provided with clear information about how to make complaints in relation to classification matters. In order to make a complaint, a consumer should not be required to have a detailed knowledge of the classification system, along with the role of the various bodies involved in classification and their associated responsibilities.^[37]

4.42 MLCS Management observed, for example, that it is unclear to both industry and government how the National Classification Scheme should be applied to certain products, given that

different content regulation schemes apply to different delivery channels … consumers don’t generally give a damn how they got their product—they just get it in the manner that best suits their needs. What they do want is some consistency about the application of classification information.^[38]

4.43 In responding to the circulation of these guiding principles on the ALRC’s Public Consultation blog, Free TV Australia raised the issue of whether the consumer information and complaints handling principles needed to be considered separately, and proposed that this principle be divided into two elements:

• The National Classification Scheme needs to provide consumer information in a timely, clear and consistent manner.

• The National Classification Scheme needs to encompass a responsive, effective and consistent means of addressing community concerns, including complaints.^[39]

Principle 5: An adaptive regulatory framework

The classification regulatory framework needs to be responsive to technological change and adaptive to new technologies, platforms and services.

4.44 In referring this review to the ALRC, the Attorney-General had regard to the need for a framework which can adapt to ‘the rapid pace of technological change in media available to, and consumed by, the Australian community’.^[40] The Convergence Review has also recommended that ‘Australians should have access to the broadest possible range of content across platforms, services and devices’.^[41]

4.45 Industry stakeholders strongly argued for the need to move from piecemeal responses that apply the existing classification framework to each new technological development, towards one that is framed in such a way as to be adaptive to broader convergent media trends. This is consistent with the concern expressed by the Australian Communications and Media Authority (the ACMA) about ‘piecemeal responses’ to new issues, where

legislation is incrementally amended and supplemented to address the rapid change occurring in the communications sector over the past two decades … the present communications legislative landscape is fragmented [and this] has reduced the overall coherence of the regulatory scheme.^[42]

4.46 Telstra observed that, in light of the fragmentation of international media markets, ‘the focus of classification policy intervention needs to be shifted to domestically based users rather than the now multitudinous and internationally dispersed content creators and distributors’.^[43]

4.47 The Australian Home Entertainment Distributors Association recommended that the Inquiry address the ambiguities in the current framework, particularly between content accessed in physical and digital forms:

The ALRC should guide the government on whatcontent should be administered by a reformed Scheme, and as part of this what canbe administered in a digital distribution environment which is: instant, international, vast and often user generated.

In other words, the Scheme should focus on the content that ‘matters’ and be implemented so that it can apply to as much content as possible directly by the content distributor.^[44]

4.48 Google argued the need to rethink media classification around the different layers of the converged media environment, rather than in terms of analogies between one media form and another:

The existing classification regime is unworkable in a converged environment. A new regulatory framework must take into account the particular features of each layer of the converged media landscape—the network, the platforms, and the content layers— and apply the appropriate policy instrument.^[45]

4.49 The ALRC supports the development of a policy and regulatory framework for media classification that can be adaptive and flexible, and can respond to changes in technology, consumer demand and markets. To this end, the ALRC suggests that platform neutrality should be a guiding principle of any new regulations (see Principle 8), that co-regulatory approaches should be developed to a greater degree than is currently the case, and that agencies such as the ACMA and the Classification Board should be better able to focus on content where there are the greatest concerns in relation to community standards and the protection of children.

Principle 6: Competition and innovation

The classification regulatory framework should not impede competition and innovation, and not disadvantage Australian media content and service providers in international markets.

4.50 The Terms of Reference for this Inquiry point to the need for the ALRC to give consideration to the ‘desirability of a strong content and distribution industry, and minimising the regulatory burden’.

4.51 Such a principle is consistent with the objective of the Broadcasting Services Act to provide ‘a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs’^[46] and the principle of the Convergence Review that the ‘communications and media market should be innovative and competitive, while balancing outcomes in the interest of the Australian public’.^[47]

4.52 The ALRC is of the view that the National Classification Scheme needs to ensure that there is parity of treatment between domestic and international media content providers. The problem with existing regulations is that they can be disproportionately applied to domestic providers, while the regulatory complexities arising from media globalisation and convergence are simply ignored.

4.53 Telstra, for example, noted that:

The reduced capacity of Nation States to enforce regulation against international actors (even where the black letter law is consistent in its application) creates a serious risk that local providers, who are more easily caught by the regulatory reach of Government, could be indirectly competitively disadvantaged by regulatory intervention.^[48]

4.54 The Interactive Games and Entertainment Alliance (the iGEA) drew attention to the need for a classification framework that does not ‘impede innovation nor the exploration of the provision of entertainment and other services over new technologies’.^[49]

4.55 The Internet Industry Association recommended the development of a framework that is harmonised, where possible, with other international classification standards, so that a revised National Classification Scheme would

enable development of an international system whereby information about content could be provided once by the originator and vendors/distributors in different countries/cultures could use that information to apply ‘age appropriate’ recommendations appropriate to their culture.^[50]

Principle 7: Clear regulatory purpose

Classification regulation should be kept to the minimum needed to achieve a clear public purpose, and should be clear in its scope and application.

4.56 The ALRC has been asked to propose a regulatory framework for the National Classification Scheme that can ‘minimise the regulatory burden’ while meeting community expectations. Similarly, the Convergence Review has proposed that ‘where regulation is required, it should be to the minimum needed to achieve a clear public purpose’.^[51]

4.57 The Australian Government Best Practice Regulatory Handbook frames a guiding principle for government regulation as follows:

The challenge for government is to deliver effective and efficient regulation—regulation that is effective in addressing an identified problem and efficient in terms of maximising the benefits to the community, taking account of the costs.^[52]

4.58 Concerns about the costs of compliance and the need for clarity were expressed by stakeholders.^[53] The iGEA, for example, drew attention to the need for a classification framework ‘designed to ensure that it is easy for the local and global industry to comply with’ and which ‘operates in a certain and low friction manner’, with low costs of compliance.^[54] Further, the classification framework ‘should clearly indicate the extent of its application, including whether it applies to computer games played or delivered over the Internet from inside or outside of Australia’.^[55]

4.59 In the ALRC’s view, the critical variables in determining the appropriate regulatory form for classification of media content should include:

• the potential for risk, harm or impact associated with the content in question;

• the degree of community concern about the effective application of classification to the content in question;

• the likelihood of the industry or media content provider in question effectively self-managing its own relationship to its consumers and to the wider community; and

• the extent to which non-compliance with regulations generates reputational risk or diminished market standing for the industry or media content provider in question.

4.60 As discussed in later chapters of this Discussion Paper, the ALRC is of the view that there is considerable scope to extend co-regulatory arrangements in those areas where there is not major community contention about classification decisions, allowing government agencies to more effectively focus time and resources on the most contentious media content.

Principle 8: Focus on content

Classification should be focused upon content rather than platform or means of delivery.

4.61 The Senate Legal and Constitutional Affairs References Committee expressed the view that ‘a uniform approach to the same or similar content is required, regardless of the medium of delivery’, and that ‘the equal treatment of content, regardless of the platform used to access that content, should be a guiding principle of a reformed National Classification Scheme’.^[56]

4.62 Many stakeholders emphasised the value in principle of platform neutrality, and the extent to which the National Classification Scheme as it is currently operating is not based upon such a principle, and the problems that result.

4.63 Telstra, for example, drew attention to current inconsistencies in the treatment of similar content across different platforms, and the extent to which this becomes problematic in the context of devices such as the Telstra T-Box, which are explicitly designed to deliver content from multiple platforms through a single device:

As technological innovation continues, and the diversity of content producers and distribution platforms continues to grow, distinguishing classification treatment on the basis of distribution platform is likely to become increasingly difficult, resulting in further inconsistencies of this kind.^[57]

4.64 Assistant Professor Sarah Ailwood and Bruce Arnold, of the Faculty of Law, University of Canberra, observed that the current National Classification Scheme predates media convergence and, accordingly, ‘treats content in terms of form rather than mode of delivery’. They advocated the development of a new classification model that is ‘consistent across platforms’.^[58]

4.65 MLCS Management observed that:

The idea of different channels making a difference to users does not make sense. From a classification perspective, consumers simply do not care where they get content from … We need to get over who is responsible for what channel, develop a framework for all content, and then sort out who manages it at a government level.^[59]

4.66 The ALRC is of the view that, with the growing popularity of ‘smart televisions’ and other devices that enable seamless access to converged media content from a single platform, there is a need to focus classification on the content that is to be classified, rather than the platform from which it is being delivered.

4.67 At the same time, the ALRC recognises that the principle of ‘platform neutrality’ may present significant challenges in practice. Dr Lyria Bennett Moses of the Faculty of Law, University of New South Wales, observed that:

if one strives to achieve parity of outcome (so that [it is] as hard to access material on-line as in a local bookstore or library or movie theatre), then one would need to impose very restrictive laws on on-line content … Similarly, if one strives to draft laws in a technology neutral way (thus not differentiating between different technologies in the wording of the legislation), then the laws may not be equally effective or cost-effective in all contexts.^[60]

4.68 The most conspicuous case of a lack of platform neutrality in the current scheme is between the treatment of computer games and other media, such as films and DVDs. A separate classification scheme was introduced in 1994 for computer games, based on concerns that games, because of their ‘interactive’ nature, ‘may have greater impact, and therefore greater potential for harm or detriment, on young minds than film or videotape’.^[61]

4.69 Gareth Griffith observed that this decision, which led to the highest available classification for computer games being MA 15+, marked a significant departure from the ‘contemporary “classification” perspective’ and ‘suggestive of the “censorship” perspective, emphasising ideas associated with “protection from harm” and the public good’.^[62]

4.70 Many of the public submissions received in response to the Issues Paper were concerned to see this anomaly corrected. In this regard, the ALRC notes the agreement reached at the Standing Committee of Attorneys-General meeting in Adelaide in July 2011, that endorsed the development of an agreed national R18+ classification for computer games.

4.71 One issue that arises with any proposal to develop a more platform-neutral regulatory framework is whether different forms of media have different effects on individuals. There is an extensive literature on the question of media effects, which is summarised in Appendix 2 of this Discussion Paper. The ALRC is of the view that the evidence available is sufficiently ambiguous on the question of media effects that it would advise against applying different classification criteria to media platforms on the basis of whether that media form may have more impact on individual behaviour. A content-based approach to media classification, combined with more clearly age-based classification categories, is the preferred approach.