How to determine what should be classified

6.5 Determining what should be classified might be expected to follow from the primary purposes of regulating content. If the purpose of classification is to give Australians information about content they might choose to view, hear or play, and to protect people from harmful or distressing material, then this might suggest that most content—and certainly as much potentially harmful content as possible—should be classified. However, even if it were thought useful for everything to be classified—to provide Australians with as much information as possible—this is unlikely to be practically possible or cost-effective. Any new or reformed classification scheme must therefore consider which types of content should be classified or regulated.

6.6 There are a number of possible ways of thinking about content for the purpose of deciding which content should be classified. In the Issues Paper, the ALRC asked a number of questions related to how to determine what content should be classified or regulated. This section will briefly summarise submissions in response to these questions.

6.7 However, two preliminary points should be noted, one concerning the meaning of ‘classify’ and the other concerning restricting access without classifying content. First, when this chapter asks whether something should be classified, it does not necessarily mean classified by the Classification Board. In Chapter 7, the ALRC proposes that some content may be classified by authorised industry classifiers.

6.8 Secondly, limiting access to certain content may not need to depend on a formal classification decision. If the purpose of classifying some content is to warn potential viewers and to restrict access to adults, and the provider of the content does both, then there may be no need to classify the content. In Chapter 8, the ALRC proposes that all media content that is likely to be R 18+ must be restricted to adults, even though this chapter proposes that only some of this content must be classified.

Volume of content

6.9 There are over one trillion websites, hundreds of thousands of ‘apps’ are available to download to mobile phones, and every minute over 48 hours of video content is uploaded to YouTube.^[3] Submissions to this Inquiry consistently noted the sheer volume of content that is now available, particularly online content, and the impossibility of having Australian classifiers watch and formally classify it all. The Arts Law Centre, for example, submitted:

It is clearly impractical and too costly for the Government to classify all content being delivered via the internet. This inevitably must lead to the conclusion that there should be less formal regulation of content in Australia.^[4]

6.10 As Civil Liberties Australia remarked, if ‘the content is freely available, then the requirement for classification becomes absurd and hard to justify’:

The sheer volume of content available today simply makes mandatory classification impractical.^[5]

6.11 A number of submissions suggested that the practical reality, or feasibility, of requiring content to be classified should therefore influence what content, and how much content, should be classified. According to Telstra, the feasibility of those laws being complied with and enforced was also a relevant consideration:

Ineffective or inconsistently enforced classification obligations aid nobody. End users are disadvantaged as ineffective classification obligations risk giving a false sense of security reducing self vigilance or creating confusion about remedies.^[6]

6.12 If industry had a greater role in classification, as proposed in Chapter 7, it may be possible to classify more content.

Cost and regulatory burden

6.13 The more regulation, the greater the likely cost to industry and to the public. Excessive regulation might also be particularly disadvantageous to sole traders and small-to-medium enterprises who form the backbone of an emergent digital media content sector.^[7] The high cost of classifying and regulating certain content might call for increased industry involvement in classification or for some content to be excluded completely from the regulatory regime, provided that the other overall objectives of the National Classification Scheme can be met.

6.14 There is also a need for cost-effective solutions for the large number of start-up businesses, sole traders and small-to-medium enterprises engaged in the emergent digital content industries. As Telstra submitted,

Identical regulatory requirements can have dramatically different compliance burdens when applied in differing contexts. For example, requiring formal ex ante classification of both high cost, professional film productions intended for mass market theatre distribution to low cost and amateur video productions intended for a niche online audience would have a dramatically different impact on each party.^[8]

6.15 These obligations, Telstra submitted, can also ‘inhibit innovation and discourage new entrants from developing new content’.^[9]

Media platform

6.16 The convergence of media technologies has arguably undermined some of the distinctions between media that underpin the current classification scheme, and may suggest that the platform on which content is delivered should not determine whether the content should be classified.^[10]

6.17 Currently, similar content may be subject to different regulatory requirements, classification processes and rules, depending on the medium, technology, platform or storage device used to access and deliver the content. For example, the same film may be subject to different regulation, depending on whether it is shown in a cinema, sold or rented as a DVD, accessed through the internet, and broadcast on free-to-air or subscription television. Film media and print media are also treated differently. Each has separate guidelines and although most films must be classified to be sold, only some publications must be classified (sexually explicit magazines, for the most part).

6.18 Some argue that the media used to deliver content is not relevant to the question of whether the content should be classified. A child may be no less distressed watching a violent film downloaded from the internet than watching a film hired from a DVD store. Such reasoning may lie behind the submissions to this Inquiry that called for the classification of ‘everything’.

6.19 More broadly, some submitted that consumers simply do not recognise—or care about—the distinctions between platforms.^[11] The Senate Legal and Constitutional Affairs Committee also noted this difficulty:

Significantly, one of the shortcomings of the scheme is that it is not platform neutral. That is, it does not provide for a consistent classification decision-making framework in a converged media environment … The committee recommends that, to the extent possible, the National Classification Scheme should apply equally to all content, regardless of the medium of delivery.^[12]

6.20 However, the same factors might be used to argue for less regulation. If it is prohibitively costly to regulate content delivered by one medium (for example, the internet), then it may be argued that the content should also not be regulated when delivered on other media (for example, DVDs). The argument for consistency or parity could therefore lead to less regulation.^[13]

6.21 The proposals later in this chapter regarding what must be classified are largely platform-neutral.

Likely classification

6.22 The need to protect children from harmful or distressing content, and to warn all consumers about potentially distressing content, might suggest that it is more important to regulate content that is likely to have a high classification.^[14] This is reflected in the current regulation of online content, which targets material that is or would be restricted offline, and in government proposals to introduce ISP-level filtering of content classified RC. This idea is also reflected in laws that provide that only ‘submittable publications’—publications not suitable for minors (such as sexually explicit magazines), or likely to be RC—must be classified before they are sold or distributed in Australia.^[15]

6.23 It may be that some content does not need to be classified at all, because it is likely to have only a negligible impact on any viewer. A former Director of the Classification Board, John Dickie, suggested that ‘there is a large amount of material—publications, instructional films, low level computer games and puzzles—which really do not have to be classified’.^[16]

6.24 The Interactive Games and Entertainment Association (iGEA) said that ‘the potential impact of Small Online Content Products would affect whether such products should be classified’.^[17] For other content, however, iGEA would prefer the content to be classified, regardless of its potential impact, to ‘ensure that the community is well informed of the suitability of content across the full range of impact levels’.^[18]

6.25 A number of ALRC proposals in this chapter and in Chapter 8 turn on the likely classification of content, that is, the classification something would likely be given if it were classified.

Complaints

6.26 Another way of distinguishing content for the purpose of deciding whether it needs to be classified is whether the content has been the subject of a complaint or has otherwise been singled out by regulators.^[19]

6.27 The classification of online content largely relies on complaints: online content will often only be classified if someone has lodged a complaint with the ACMA. On the other hand, submittable publications, films and computer games must usually be classified whether or not anyone has complained about their content.^[20]

6.28 However, complaints may be a useful way to identify and target the content that should be classified. The NSW Council of Churches suggested that while ‘the intent should be to classify all content’, the ‘volume of content and the public resources available for monitoring’ may require such an approach.^[21] The Arts Law Centre of Australia considered that ‘there is a good argument that self-regulation coupled with a complaints based system may be the most effective way to proceed into the future’:

This would require content providers to self-regulate and to provide a mechanism for members of the public to be able to make complaints about the extreme and offensive content.^[22]

6.29 Telstra likewise submitted that end-user complaints are ‘a useful gating mechanism for targeting classification exercises’:

such a complaint driven process empowers users to influence the content that they consume and target the compliance costs of the classification scheme to areas of genuine end user concern.^[23]

6.30 However, if complaints were the only factor that determined whether something should be classified, then only a very small proportion of content would ever be classified. The Australian Council on Children and the Media submitted that complaint-based systems

rely on a public who, having seen content that is inappropriate, knowing where to lodge a complaint, takes the trouble to do so, and then perseveres through to the end result. All this takes too much time, especially for busy parents.^[24]

6.31 Some said that a complaints-based system does not work.^[25] If something is not classified unless there is a complaint then, by the time there is a complaint, it will often be ‘too late’.^[26] However, others were concerned that complaints could be used by a small minority to seek the censorship of material that most Australians would not wish to have censored. If there were a complaints‐based system, it was noted, ‘efforts must be made to dissuade frivolous and malicious complaints’.^[27]

Major producers and distributors

6.32 Classification laws could also be directed at content distributed by companies and corporations and exclude content distributed by individuals, such as ‘user-generated content’.^[28] Classifying content comes at a considerable cost, particularly when done by an independent statutory body. Large organisations and companies, such as the major distributors of publications, films and computer games, may have the resources to ensure their material is classified and, under a new scheme, may also be able to employ their own classifiers for some content. The Australian Independent Record Labels Association, for example, submitted that ‘costs associated with classification can only be reasonably borne by record labels with a history and potential of mass market reach’.^[29]

6.33 Some submissions noted that smaller producers of content may not be able to bear the cost of having their content classified, and so should be exempted from classification laws. Civil Liberties Australia, for example, argued that:

It is unfair to hold an individual or small group to the same standards as a corporation that has the time and resources to advertise and comprehensively research issues … When profit motive is the dominant factor in producing content, classification becomes more justifiable as a feature of fair trading.^[30]

6.34 However, a large number of submissions argued that market position or reach should have no bearing on whether content should be classified. One submission called this an ‘an entirely subjective and impractical measure’.^[31] The NSW Council of Churches emphasised that:

The goal should always be to maintain classification standards that reflect accepted community standards and not to make special allowances for so-called special audiences or market segments.^[32]

6.35 The iGEA also said the classification laws should be capable of being applied to ‘all content producers, regardless of their size or market position and regardless of the size and composition of the audience for the content’.^[33]

6.36 Some submissions expressed concern over whether there was any acceptable standard by which market position or reach could be judged as sufficiently large to warrant classification. Telstra thought it was unclear what benchmark the ‘size’ of producers or distributors could be usefully measured against.^[34]

6.37 The ALRC proposes that certain content should only be required to be classified if it is produced on a commercial basis: see Proposals 6–1 and 6–2.

Size and composition of the audience

6.38 If content will only be seen by a small audience of adults, then there may be less demand for classification information. The more people are likely to see a piece of content, the greater the likely demand for classification information. If children are likely to see the content, then the need for classification information may also grow. Such arguments might justify expecting popular television channels to classify content they broadcast, but not overseas television channels that may also be watched on the internet.

6.39 In the Issues Paper, the ALRC asked whether the potential size and composition of the audience should affect whether content should be classified.^[35] Many submissions argued that classification should be based on content rather than audience, and that small audiences also need classification information. Free TV Australia said thatviewers ‘have a right to expect the same acceptable community standards with respect to any material they access’.^[36]

6.40 It is also difficult, some submissions noted, to predict the size and composition of an audience—especially for online content.^[37] Telstra commented that:

Recent experience shows that the size and audience composition of differing types of content has changed dramatically in relatively short periods of time … This rapid pace of change creates the risk that classification distinctions based on the potential size and composition of audience could quickly become outdated leading to inconsistencies and perverse outcomes.^[38]

6.41 Another stakeholder submitted that internet content can ‘become popular or fade in popularity within days, depending on which channels it is promoted in’.^[39]

6.42 However, many submissions noted that classification of content creates an economic burden on smaller producers. Some said that content produced by small producers, or for a niche audience, should therefore be exempted from any requirement to be classified, and independent and niche developers should not be caught up in red tape. The Australian Independent Record Labels Association said that music for ‘a small audience should not be subject to costly or resource dependent classification systems’.^[40]

6.43 Some submissions argued that the composition of the audience (though not necessarily its size) should influence whether or not classification is necessary. The Arts Law Centre of Australia, for example, submitted that persons who attend galleries to view artworks are ‘a discrete section of the community’—they are ‘knowledgeable about the material they are going to view and attend by choice’. There should therefore be ‘an explicit exemption to classification for works of art exhibited in a gallery space’.^[41]

Children’s content

6.44 Many parents and guardians rely on classification information to guide their choice of entertainment for young children. Children may also be more likely to be distressed or even harmed by content they view.^[42] In light of these and other concerns, some call for the classification of ‘everything’. The Australian Christian Lobby submitted that content ‘designed for children should be subject to classification across all media.’^[43] Similarly, Media Standards Australia argued that:

All material should be checked by the Classification Board, and some should be refused classification. Content designed for children should definitely and automatically be classified across all media, as well as content which will be available to children within their viewing or listening hours.^[44]

6.45 Civil Liberties Australia described the protection of minors as the ‘crux of classification today’:

Adults are deemed capable of making decisions for themselves and held responsible for the decisions they do make. Parents, however, want to have some control over the messages their children receive and seek some help to ensure that the content their children are exposed to is age-appropriate … There is therefore greater need to have content classified when it is specifically directed at children.^[45]

6.46 Others have said the real risk is children’s access to content that is not designed for children—adult content, such as violent films and pornography. The Australian Council on Children and the Media noted children have access to a lot of content that is not ‘designed for them’. The classification system should, therefore, be ‘based on what children have access to rather than the intent of the material’s producer’.^[46]

6.47 However, as noted above, it is arguably not possible to mandate that all media content must be classified. It may not even be possible to require all media content designed for children to be classified. However, as Telstra submitted, content producers and distributors might voluntarily submit their material for classification as child friendly.

Parents would benefit from such a system by being able to direct their children to content with an appropriate classification rather than content that has not been classified at all, and content providers and distributors would benefit by being able to market their content as child friendly on the basis of an independent benchmark.^[47]

Public or private

6.48 Many submissions stated that whether content is publicly or privately available should not affect whether it should be classified.^[48] Many stressed the importance of maintaining a focus on content itself, rather than the platform from which that content may be accessed. The organisation Bravehearts, for example, submitted that:

Whether or not the content is accessed in the public or private sphere should not impact on whether or not content should be classified … [Such] conditions will only create loopholes that may be exploited.^[49]

6.49 A smaller number of submissions suggested that content selectively viewed from home should not be subject to the same restrictions as content displayed in a public forum. Civil Liberties Australia submitted that‘the fact that content is accessed in public or at home should absolutely affect whether it should be classified’:

Public spaces are all about community, and therefore community standards should apply. In private spaces, by contrast, community standards are irrelevant.^[50]

6.50 Whether stricter restrictions should be placed on media shown in public—such as outdoor advertising—is discussed further in Chapter 8.