Methods of restricting access

8.19 In this Discussion Paper, the ALRC proposes that access to certain content—classified and unclassified—should continue to be restricted to adults.^[10] This paper also assumes that certain content will continue to be prohibited even to adults (although what this content should be is discussed in Chapter 10). This section considers methods of restricting access, online and offline. The ALRC proposes that while the Classification of Media Content Act should provide for minimum requirements for restricting access, the details of these methods should be prescribed in industry codes, approved and enforced by the Regulator.

Restricting access online

8.20 Many submissions suggested that restricting access online is very costly and almost impossible in practice.^[11] Civil Liberties Australia submitted:

there are simply no effective methods to control access to online content anything like the manner sought by most advocates. What is possible is to restrict access to some small subset of particular copies of restricted online content, and then only in particular controlled environments. The real question is whether the costs of such limited controls are worth the relatively minor, and largely symbolic, benefits.^[12]

8.21 The Australian Independent Record Labels Association agreed that high impact music ‘should not be available to minors for purchase online’ but submitted that labelling guidelines would be sufficient as it is not ‘practicable to deny consumer access to content, offensive or not, through firewalls, passwords, blacklists or any other means’.^[13]

8.22 The Australian Recording Industry Association and the Australian Music Retailers Association also pointed to the ‘inherent difficulties in controlling access to online content’, difficulties replicated in relation to illegal file sharing. Access to physical products can be restricted, but ‘the issue of controlling access to online content is fraught and will require cooperation that spans multiple industries, territories and international jurisdictions’.^[14]

8.23 Some submissions opposed any mandatory regulation of internet content. One person, reflecting a common sentiment in submissions, argued that there ‘should be no restricted access to online content’:

Online content cannot be completely enforced or policed. Parents should take responsibility for their child’s online presence. Adults should be able to control their own access to online content.^[15]

Restricted access systems

8.24 Restricted access systems or access control systems have been used to try to prevent minors from accessing certain content online. Schedule 7 of the Broadcasting Services Act provides that certain content online must only be provided behind a restricted access system.^[16] Under the Restricted Access System Declaration 2007, for R 18+ content, an access-control system must:

• require an application for access to the content; and
• require proof of age that the applicant is over 18 years of age; and
• include a risk analysis of the kind of proof of age submitted; and
• verify the proof of age by applying the risk analysis; and
• provide warnings as to the nature of the content; and
• provide safety information for parents and guardians on how to control access to the content; and
• limit access to the content by the use of a PIN or some other means; and
• include relevant quality assurance measures; and
• retain records of age verification for a period of 2 years after which the records are to be destroyed.^[17]

8.25 Few submissions directly referred to the merits of these restricted access systems, but some of the broader concerns about the effectiveness of controlling access to online content are clearly relevant.

8.26 The NSW Council of Civil Liberties has in the past expressed its concern that ‘the proposed methods of restricted access systems (PIN, passwords, etc) are ineffective, intrusive and encourage identity theft’.^[18] Verifying a person’s age using a credit card is perhaps undermined by the fact that minors may be able to buy prepaid credit cards from supermarkets.

8.27 However, some content providers report that they have successfully used restricted access systems. Telstra submitted that to access some of its website content, customers must provide their credit card details, which ‘constitutes verification that they are at least 18 years of age and allows them to access age-restricted content’.^[19]

Home filters and parental locks

8.28 Many submissions indicated that the best means of controlling access is to provide filtering software and parental control, which could be used voluntarily. This was thought particularly useful to help control children’s access to inappropriate content. Dr Gregor Urbas and Tristan Kelly, for example, submitted:

Dynamic filters may be of some use to users, including parents, who wish to voluntarily filter material. In particular, PC-based filters provide parents with the best option to control and monitor their children’s browsing habits.^[20]

8.29 Another submission commented that ‘optional filters on client-side computers are a more efficient way of controlling online access, without blocking any adult’s right to view what they wish to’.^[21] The Arts Law Centre of Australia likewise submitted that resources should be dedicated to

providing [filtering] software to those who would like it and educating the community about the best ways to take responsibility for themselves and their children.^[22]

8.30 Many submissions emphasised the parent’s role in controlling what children could see online. SBS submitted that ‘consumer education (including media literacy education in school curricula)’ and ‘the availability of tools such as parental locks and filtering software in conjunction with a consistent classification marking scheme should be relied on to control access to content’.^[23]

8.31 Parental locks may also be used to block certain television content. Free TV Australia noted that most digital televisions and digital set-top-boxes have a parental lock function.

Parental Locks allow you to block programs based on their classification (for example, G, PG, M or MA), or in some cases block whole channels, via the use of a PIN (personal identification number). Once the function is activated, only those with access to the PIN can view the blocked programming or channel.^[24]

Education

8.32 Many submissions observed that the education of parents and consumers is one of the most important means of regulating access to online content. The Australian Mobile Telecommunications Association, for example, submitted that the most effective method of controlling access to online content:

lies in empowering and educating consumers so that they can exercise their own controls over the content they choose to access and/or restrict their children from accessing online.^[25]

8.33 The NSW Council of Churches submitted that children’s access to potentially inappropriate content may be better controlled online by ‘funding effective education strategies including advertisements, parental education and child education including in all public schools’.^[26] Likewise, the child protection association, Bravehearts, submitted that ‘Online safety should be part of the personal safety curriculum taught to children in schools’:

Components of cyber-safety curriculum should include: Unwanted contact; Inappropriate content; Safe behaviour online and protecting personal identity information; Cyberbullying.^[27]

Mandatory and voluntary ISP-level filtering

8.34 The Australian Government proposes to require internet service providers to filter or block RC content that is included on a list—popularly called a ‘blacklist’—maintained by the ACMA.^[28] The Government has said the ‘RC content list’ will be compiled in two ways:

• overseas-hosted content that is the subject of a complaint from the public made to … ACMA and

• incorporation of international lists of overseas-hosted child sexual abuse material from highly reputable overseas agencies following a detailed assessment of the processes used by those agencies to compile their lists.^[29]

8.35 Submissions were divided on the merits of this policy. The Australian Christian Lobby was among those who supported mandatory ISP-level filtering, though it submitted that ‘all pornography should be filtered at the ISP level with the option for adults to contact their ISP and request access to that material’.^[30] Similarly, the National Civic Council submitted that mandatory filtering of the internet at the ISP level is the most effective method of controlling access to restricted online content as:

ISP filtering empowers parents to more easily monitor and regulate the content to which their children are exposed across a range of devices.^[31]

8.36 Based on its own technical evaluation, which tested a blacklist of up to 10,000 URLs, Telstra submitted that:

blocking of URLs on a blacklist is feasible and practical to implement at 100% accuracy (not under or over blocking), without noticeably impacting on network performance or customer experience provided it is limited to a defined number of URLs.^[32]

8.37 Telstra stated that it would voluntarily block sites on a blacklist of child abuse websites compiled by the ACMA, but would like the Australian Government to ‘legislate its approach to ensure that it applies across the industry, is clearly spelt out and is enforceable by law’.^[33]

8.38 Other submissions argued that such filters were not effective. Urbas and Kelly submitted that ‘ISP filters can be easily circumvented through proxy servers or virtual private networks’.^[34] Another submission criticised the policy as being ‘fundamentally flawed, unbelievably cost-inefficient and a staggeringly autocratic move’ and characterised it as ‘both philosophically and practically hopeless’.^[35] The views of some critics of mandatory ISP-level filtering are also discussed further above, in relation to the broader question of whether online content can or should be restricted at all, and in Chapter 10.

An integrated approach

8.39 Telstra submitted that ‘there is no silver bullet’ to make the internet safe. Instead, a holistic response must include:

user-based PC filtering, the creation of safer learning and social networking environments, appropriate supervision and involvement by parents and teachers, education, law enforcement and international cooperation. … ISP level blocking of a blacklist of RC sites could also usefully form one element of such a multi-faceted approach to this issue.^[36]

8.40 Bravehearts also proposed that an integrated approach was needed:

This includes not only the ISP filter, but the resourcing and expansion of Federal and State Police online investigation units, education and awareness campaigns, research, as well as the continuation of the Consultative Working Group on Cyber-Safety (made up of government, industry and NGO’s, including Bravehearts Inc) and the adjunct Youth Advisory Group.^[37]

Restricting access offline

8.41 The sale and display of sexually explicit adult magazines has been the subject of criticism and debate in recent years.^[38] Access to other offline adult content, such as R 18+ films in cinemas, and even content that is entirely illegal to sell in Australian states, such as X 18+ DVDs, has received less attention. State and territory laws provide that it is an offence to sell or hire adult films and publications to minors. There are also laws relating to how this content—particularly sexually explicit magazines—may be packaged and displayed.^[39] The Senate Legal and Constitutional Affairs References Committee recommended that where adult publications and R 18+ films are sold in general retail outlets, they ‘should only be available in a separate, secure area which cannot be accessed by children’.^[40]

8.42 Some submissions expressed surprise that there is concern about the offline sale and display of this content at all, considering how widely and freely much of the content may be found online, where digital offerings are ‘cheaper, more varied and subject to fewer restrictions’.^[41] Civil Liberties Australia, for example, submitted that it ‘is hardly clear that this should be a pressing concern’:

The magazine industry is dying and most sexually explicit content is now accessed online. This ‘problem’ will almost certainly go away by itself over the next few years anyway. … As for other offline content, it is unclear what more can be done. Australians seem generally happy in this regard.^[42]

8.43 The Pirate Party Australia submitted:

The current system of sealed magazines and restricted premises is adequate to regulate sexually explicit content offline. Legal, unclassified material should be restricted, not banned.^[43]

8.44 Others submitted that greater restrictions should be imposed. Bravehearts submitted that restricted offline material, such as sexually explicit magazines and DVDs, should be ‘out of sight and out of reach of children’.^[44]Media Standards Australia stated that:

All material with an R 18+ classification should be in an isolated, restricted area, and removed from all other material. This includes magazines and videos. … Children should not be confronted by adult content images as they browse shelves in a store, whether it be for computer games, DVDs, books or magazines.^[45]

8.45 Another submissionsuggested that the display and sale of content, such as sexually explicit magazines, should be prohibited entirely in ‘physical environments to which children have access’.^[46]

8.46 Restricting access to sexually explicit adult content offline may be achieved more consistently and effectively under the ALRC’s proposed National Classification Scheme. Perhaps most importantly, the ALRC proposes that all of this content should be marked with the one, commonly-understood classification marking—X 18+.^[47] If the content is legal to sell in Australia at all, the rules regarding where it may be sold and how it should be packaged and displayed should be simplified and uniform, and provided for under the one piece of Commonwealth legislation, rather than under multiple state, territory and Commonwealth laws.^[48] Furthermore, one Regulator will be responsible for monitoring compliance and enforcing classification laws.^[49]

Television time-zone restrictions

8.47 Free-to-air television broadcasters are currently subject to time-zone restrictions, which means that, for example, they may only broadcast films classified:

• MA 15+ after 9pm, and
• M after 8:30pm, and between noon and 3pm on school days.^[50]

8.48 The same limitations are not imposed on subscription broadcast and narrowcast television, or for online content such as television streamed on the internet (IPTV). Converging media environments, discussed in Chapter 3, may suggest to some that time-zone restrictions on free-to-air television are obsolete. Content at the MA 15+ level may, in practice, now be watched at any time of day in any Australian home with subscription television or an internet connection.

8.49 Free TV Australia submitted that time-zone restrictions on free-to-air television may no longer be relevant or effective for a number of reasons, including that:

• time-zones were developed ‘in an analogue world, prior to the emergence of pay TV, the Internet, IPTV and video on demand’;
• the same type of content is readily available on other platforms at any time of day;
• time-zones may be ‘contrary to the strong trend in media consumption towards viewers accessing what they want, when they want’, using time-shift programming and ‘on demand’ content services;
• parental locks give users greater control over content; and
• regulation should not ‘place an unjustifiably higher burden on some content platforms’.^[51]

8.50 Free TV Australia also submitted that market dynamics dictate that:

when material is restricted on one medium, it merely redistributes to other, less regulated media. This leads to the inequitable outcome of having disproportionate financial impact on the more regulated platform while at the same time resulting in no overall decrease in the public’s exposure to the content.^[52]

8.51 However, the logic of convergence may lead to policy outcomes for which Australia may not be ready. Convergence might suggest, for example, that the existing prohibitions on the broadcasting of R 18+ content, and perhaps even X 18+ content, are anachronistic. However, a community expectation that television channels are safe, particularly for children, at certain times of the day, may suggest that time-zone restrictions are still relevant. More popular content providers may also have a greater responsibility for providing classification information and restricting access to adult content.

8.52 In the ALRC’s view, if time-zone restrictions on free-to-air television were to be removed, at the very least, a comprehensive public education campaign about how to use parental locks would be necessary.^[53]

Industry codes or legislation

8.53 The ALRC proposes that methods of restricting access to R 18+ and X 18+ content should be set out in industry codes, rather than in the Classification of Media Content Act. As submissions have highlighted, methods of restricting access have a number of commercial and technical complexities. New technologies to restrict access without compromising privacy or safety may also be developed in time. For these reasons, methods of restricting access are best placed in codes developed by industry, approved by the Regulator, and regularly reviewed and updated to account for developments in technology.