Feature-length films, television programs and computer games

6.51 Providing advice or information to consumers, in particular parents and guardians, to inform their entertainment choices is arguably the primary function of classification law.^[51] The fact that most films and computer games that are classified by the Classification Board receive advisory classifications to which no legal restrictions apply (now G, PG and M), highlights that providing advice is central to classification policy.^[52]

6.52 From the user’s perspective, there may in time be little or no difference between content on ABC television or Channel 10, and content on YouTube or an overseas internet television channel. Why, then, require the ABC and Channel 10 to classify much of their content, but not YouTube? Why impose the cost of classification only on Australian publishers, television stations and other content providers?

6.53 Despite the impossibility of classifying all media content, a few reasons remain for continuing to require some content to be classified.

6.54 First, as noted above, the Australian community appears to expect classification information for feature-length films, television programs and computer games. This is a useful and valued service that many Australian content providers have given their customers for many years. However, although some have called for the classification of everything, there appears to be only a limited community expectation that books, magazines, websites and other online content be formally classified. As many have stressed, there is simply too much media content, even if it were desirable to classify it all. Requiring most content to be classified, even using industry classifiers, would also place a significant cost and regulatory burden on those who provide the content.

6.55 Secondly, the content traditionally classified in Australia, and that the ALRC considers should continue to be classified, has a large Australian audience. Feature-length films and television programs, and computer games in particular, are likely to be watched by a significant Australian audience. Short clips on the internet may also be watched by a large number of people, but the quantity of such clips may mean that any one clip is rarely watched by as many Australians as the more developed, commercial content traditionally shown on television channels and in cinemas and available to buy on DVDs or download from the internet.

6.56 The ALRC proposes that while most content does not need to be classified, the new Act should provide that the following content must be classified before it is sold, hired, screened or distributed in Australia—whether delivered online or offline:

• feature-length films produced on a commercial basis;
• television programs produced on a commercial basis; and
• computer games produced on a commercial basis and likely to be classified MA 15+ or higher.^[53]

6.57 Other content—for example, websites, books and audio books, music, radio content, podcasts, artworks, advertising—usually should not need to be classified, unless it is likely to be X 18+ or RC.^[54] In Chapter 8, the ALRC also proposes that access to any content that is likely to be R 18+ should be restricted to adults.

What is a feature-length film or television program?

6.58 The description ‘feature-length films and television programs produced on a commercial basis’ is intended to capture only the content Australians now most expect to be classified—the films traditionally shown in cinemas and sold on DVDs and television programs traditionally broadcast on television and often repackaged for sale on other media. This content is now also available on the internet, which is why the ALRC proposes that the definition in the proposed Classification of Media Content Act should not be platform-specific.

6.59 This is the content that is traditionally classified in Australia. A more precise definition in the proposed Act should, however, clarify that other content does not need to be classified. In particular, this definition is not intended to capture other film-like internet content such as user-generated videos.

6.60 Television programs, other than exempt programs, are already classified before they are broadcast in Australia. This proposal should not greatly affect the number of television programs classified before broadcast on Australian television. Overseas television programs made available on the internet before they are broadcast in Australia should also be classified under this proposal. The ALRC uses the phrase ‘television program’ in the absence of a popularly understood, media-neutral alternative phrase.

Why only computer games likely to be MA 15+ or higher?

6.61 The ALRC proposes that only computer games likely to be classified MA 15+ or higher must be classified. These are the games that parents and guardians arguably most need to be warned about—the games with strong or high levels of violence, coarse language and other content.^[55] This is consistent with the ALRC’s principles for reform concerning protecting children from material likely to harm or disturb them and providing consumers with classification information.^[56]

6.62 Content providers may choose to classify other lower-level computer games voluntarily. There are arguably too many games developed and released each year, and developed by too diverse a range of persons, to formally classify before they are sold or distributed in Australia. Hundreds of thousands of small games, often played online or on mobile devices and developed by small developers or individuals, are now available for sale. The iGEA submitted:

Small Online Content Products should only require classification if such products have the potential to be classified within a restricted category.^[57]

6.63 Rather than exempt all of these games from the classification obligation, or introduce a category of ‘small online content product’ or ‘small and simple computer game’, the ALRC proposes that only those games likely to have a higher classification should be classified.

6.64 In the United States and the United Kingdom, computer games are classified voluntarily in response to market demand for classification information. Industry codes of practice in Australia might facilitate this voluntary classification, so that the statutory classification categories, criteria and markings proposed in Chapter 9 are used for all classified computer games in Australia.

Exempt films, television programs and computer games

6.65 The proposed Classification of Media Content Act should provide that ‘exempt content’ is content exempt from the laws that provide that certain content must be classified, but not from the laws proposed in Chapter 8 that require restrictions on adult content. The Act should contain a definition of ‘exempt content’ drawn from the existing exemptions in the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Classification Act), the Broadcasting Services Act 1992 (Cth), and television codes. This exempt content would include, for example:

• news and current affairs programs;
• sporting events;
• recordings of live performances; and
• films for training, instruction or reference.

6.66 Although this content should not need to be classified, it should still be restricted to adults if it is likely to be R 18+. In other words, this content should not be exempt from the rule in Proposal 8–1. This safeguard should largely obviate the need to exclude higher level content from the definition of exempt content.^[58] The recording of a live performance that is likely to be R 18+, for example, would still need to be restricted to adults, even though it may not need to be classified. The definition of exempt content should, however, exclude content likely to be X 18+ or RC.^[59] The ALRC proposes below that this content should be classified.

6.67 The safeguard proposed in Proposal 8–1 (that all media content likely to be R 18+ must be restricted to adults) also means that more content can be ‘exempt content’ in the new Act. In the ALRC’s view, the definition of exempt content in the new Act should be expanded to capture films and computer games shown at:

• film festivals; and
• art galleries and other cultural institutions.^[60]

6.68 This should replace the formal—and reportedly cumbersome—exemption arrangement, under which film festivals and cultural institutions currently apply to the Director of the Classification Board to have content exempted from classification laws.^[61]