Content that may be classified by authorised industry classifiers

7.48 The ALRC proposes that, apart from the media content specified above that must be classified by the Board, all other media content—including the remaining content that must be classified and any content that a content provider chooses to have classified—may be classified by authorised industry classifiers.^[34] Such media content will commonly include:

• feature-length films and television programs not for cinema release (for example, films on DVD, the internet, and television);

• media content classified by the Classification Board but later modified; and

• computer games likely to now be classified G, PG and M.^[35]

7.49 There may be a view that some feature-length films not for cinema release and television program content might sometimes raise concerns sufficient to justify classification by the Board (for example, content at the MA 15+ or R 18+ classification). However television has always been responsible for producing content and editing higher-level film content so that it may be accommodated at the MA 15+ classification. Moreover the new system proposes checks and safeguards, including mechanisms for consumer complaints, audits and reviews by the Board, all of which are designed to identify and manage content that has been erroneously classified by industry classifiers. These are discussed later in this chapter. Furthermore, the content ordinarily sold on DVD, downloaded from the internet or screened on television is similar—and, consistent with the objectives of platform neutrality—as far as possible the same content should be treated the same way.

7.50 The content that industry may classify represents the greater proportion of content that must be classified under the ALRC’s proposals. It recognises industry’s longstanding involvement in the classification of television content and existing arrangements whereby industry assessors make classification recommendations to the Board in relation to similar such content.^[36]

7.51 This class of media content represents content for which industry is not likely to get the classification wrong (because it is relatively straightforward to classify or industry has experience in classifying or assessing similar content); and the level of harm that might arise if it was incorrectly classified (that is, eg, the difference in G and PG content is not so great that it would cause much alarm if a DVD was classified G instead of PG).

7.52 Allowing industry to classify this media content should significantly reduce the cost and administrative burden of classification. The efficiency and ease of industry classification compared to sending content to the Board also potentially motivates industry to comply with classification requirements and may encourage the classification of a greater volume of content.

7.53 While a key benefit of the new classification system is that media content isnot required to be classified again simply because it is being released on a different platform, a content provider may choose to reclassify content that has been previously classified by another industry classifier. The ALRC does not consider it is appropriate or acceptable to compel a content provider to use the classification of another industry classifier in circumstances where they disagree with the original decision (for example, classified television series episodes may be reclassified when the series is distributed on DVD because the DVD distributor regards the original classifications were too low).

Content likely to be X 18+

7.54 If government determines that content classified X 18+ may be lawfully sold and distributed in some or all of Australia, the ALRC proposes, in Chapter 6, that this content must be classified. Although some might argue that this content could be marked X 18+ and restricted without also being classified, the ALRC argues that classifying the content should help content providers to ensure their content does not feature RC material, such as sexual violence.

7.55 Sexually explicit material is widely available and is being consumed by a large number of Australians. In 2001–02, research conducted by La Trobe University involving 20,000 Australians found that 25% had watched an X18+ film in the past 12 months.^[37] The proliferation of adult and specialist sex retail shops would also indicate there is considerable demand for sexually explicit DVDs and publications. Moreover, the amount of content likely to be X 18+ available on the internet is enormous.

7.56 Currently, most sexually explicit adult content available in Australia is not classified. The Eros Association submitted that the number of X 18+ classified films has fallen from over 2,000 in the mid-1990s to less than 600 films a year at present—arguing that the high costs of classification by the Board and uncertainties about the legality of its distribution across Australia were major factors in this decline.^[38]

7.57 In the ALRC’s view, it is important that this content be classified. However, the sheer volume of this content means that, in practice, it is not possible for the Board to classify all of it. An alternative means of classification is needed, and classification must be efficient and inexpensive.

7.58 It is highly unlikely that international providers of sexually explicit content will have their content classified before distributing it online. However, allowing industry to classify X 18+ content—efficiently and inexpensively—removes existing barriers to classification of this content. It may mean, therefore, that responsible hosts and providers of adult content in Australia will have their content classified. Industry representatives such as the Eros Association assert that this indeed would occur.

7.59 On the other hand, if this content may only lawfully be classified by the Board, the current situation will likely prevail and most of it will not be classified at all.

7.60 It is important to note that industry classification of this content does not mean that the adult industry will be self-regulated. As proposed later in this chapter, industry decisions would be monitored by the Regulator and audited and reviewed by the Board. Industry classifiers would be trained, and have to be authorised by the Regulator. Additionally, classifiers who erroneously classify sexually explicit content would have their authorisations revoked and strong penalties would apply for content that is wrongly classified.

7.61 Under codes of practice, industry bodies could be better utilised to support and encourage the classification of X 18+ content by its members. Industry bodies, the Regulator and other law enforcement agencies might also be expected to work cooperatively to identify and prevent the distribution of material that may be RC.

7.62 Finally, if much of the Board’s current workload is shifted to industry, as proposed above, but the Board must classify all content likely to be X 18+ and all content that may be RC, then Board members will be spending most of their time viewing sexually explicit and content that may be RC—noting that RC content often includes highly disturbing and extreme content.

7.63 It is estimated that X 18+ content constitutes about 14% of the Board’s current workload. Moreover, 44% of items actioned in relation to the ACMA’s online content investigations in May 2011 comprised X 18+ content, while RC content accounted for 50%.^[39] Content investigated by the ACMA is often referred to the Board for classification—which has seen its online referrals treble between 2008–09 and 2009–10. It is questionable whether resource commitments in this area are sustainable, particularly in light of the health and safety issues that arise for people at both the ACMA and the Classification Board from constant viewing of large amounts of this material. Given that much X 18+ content ‘self classifies’—allowing industry to classify this content would reduce this exposure and mitigate some of the health and safety concerns.

7.64 The ALRC recognises that there are strongly held views on the nature of sexually explicit material and how to balance the rights of adults to access such material with questions of community standards and the potential for harm.^[40] As part of its deliberations, the ALRC is undertaking a pilot study to assist with future research that might inform the content to be included in the RC category, which is discussed in Chapter 10. By its nature, such a study also will consider the relationship of the R 18+ and X 18+ categories to RC.

New classification instruments

7.65 The ALRC considers that the proposed classification model should have the utility and flexibility to encourage content providers to classify more content over and above the content that must be classified by law. Therefore a new classification system should also include the option to use simple, accessible, cost-effective classification instruments—such as online, interactive questionnaires—that have been authorised for this purpose by the Regulator.

7.66 To be consistent with statutory requirements that must be met by classifiers, classification instruments should reflect the statutory classification criteria and categories.

7.67 An instrument might take the form of an online questionnaire and declaration that seeks information about the content provider and specific details about the nature of the content based on the statutory classification criteria and the broader classification process. Ideally the instruments would provide for an automated classification decision that would also be simultaneously notified to the Regulator. In future more sophisticated web-based applications might be possible.

7.68 Online content assessment forms and online classification applications already feature as part of some jurisdictions’ classification process:

• The Pan European Games Information organisation (PEGI) uses an online content assessment and declaration form which the publisher completes taking into account the possible presence of violence, sex and other sensitive visual or audio content. On this basis, PEGI allocates a provisional age rating that is subsequently verified by PEGI administrators against PEGI classification criteria before the publisher is issued with a licence authorising the use of the age-rating label and related content descriptors.^[41]

• The Entertainment Software Ratings Board (ESRB) in the US requires publishers of online games only available for download directly through console and handheld storefronts to complete a form containing questions that address content across relevant categories. The responses to these questions determine the game’s rating, which is issued to the publisher once a DVD reflecting all disclosed content is received by the ESRB.^[42]

• The British Board of Film Classification (BBFC) allows new online-only content to be submitted for classification through an online process under their ‘Watch and Rate’ service for which they guarantee a decision within 7 days of submitting the content.^[43]

7.69 These systems still incorporate additional classification activity by the relevant classification entity, whereas the ALRC envisages classification instruments that go further by generating stand-alone classification decisions that do not rely upon additional input or action by the Regulator, the Board or an industry classifier.

7.70 While the Regulator may develop instruments, there are opportunities for industry to innovate in this area and potentially develop different classification instruments that might be useful for classifying particular types of content for their own industry sector.