Restricting access to content likely to be classified R 18+

8.4 Access to adult content, where it is legal to distribute at all, must be restricted to adults under Australia’s current classification laws. Films classified R 18+ must not be sold or hired to minors.^[1] Some books, such as the Bret Easton Ellis novel American Psycho,^[2] have also been given a restricted classification and may only be sold in a sealed wrapper and to adults. Online content hosted in Australia that has been classified R 18+, or is substantially likely to be classified R 18+, should only be accessible behind a restricted access system.^[3]

8.5 The ALRC proposes that under a new classification scheme, certain films, computer games and television programs^[4] must continue to be classified, and if classified R 18+, access should be restricted to adults. However, most media content will not fall into the proposed definitions of content that must be classified. How will the new scheme treat all the other adult content, for example, content on websites and in magazines and books? Will children be protected from this other adult content?

8.6 The ALRC proposes that access to all media content likely to be R 18+ must be restricted to adults, but that unless it is content that must be classified (see Chapter 6), this content should not be required to be classified. This media content includes online and offline content, including: websites, magazines, books and audio books, music, radio content, podcasts, artworks, advertising, and user-generated content. The community appears not to expect advisory classification information for this content but, in the ALRC’s view, access should be restricted to adult content.

8.7 Under the Guidelines for the Classification of Films and Computer Games, R 18+ films may have a ‘high’ impact and ‘may be offensive to sections of the adult community’. The Guidelines provide:

• There are virtually no restrictions on the treatment of themes;

• Violence is permitted. Sexual violence may be implied, if justified by context;

• Sexual activity may be realistically simulated. The general rule is ‘simulation, yes—the real thing, no’;

• There are virtually no restrictions on language;

• Drug use is permitted;

• Nudity is permitted.^[5]

8.8 Relatively little content is likely to hit this high threshold. Less than 5% of films classified by the Classification Board are classified R 18+.^[6]

8.9 In Chapter 6, the ALRC proposes that obligations to classify content, other than X 18+ and RC content, should only apply to content produced on a commercial basis. However, access to content likely to be R 18+ or higher should be restricted whether or not the content is produced on a commercial basis.

8.10 Many responsible content providers already endeavour to prevent minors from accessing adult content. Online content providers such as YouTube might require persons to confirm their age or sign in before accessing some content. Other organisations might not prevent access, but might warn patrons that content may not be suitable for children. Some Australian art galleries, for example, use signage for this purpose. Under the ALRC’s proposal, if a content provider is unsure whether their content is likely to be R 18+, they may choose to have the content classified.^[7] Responsible content providers might also employ other mechanisms, such as user flags, to highlight potentially offensive content.

Must content be formally pre-assessed?

8.11 Ideally, content providers should assess content before they publish it, to determine its likely classification, but this will often be impractical or impossible for providers or hosts of large quantities of content, much of which is dynamic and user-created. Requiring pre-assessment would be almost as onerous as requiring the content to be classified, which as discussed in Chapter 6 is impractical and prohibitively costly. Accordingly, the ALRC does not propose that content-providers should be expected in all cases to assess content to determine whether it is likely to be R 18+, although responsible content providers should also have mechanisms that allow users to flag certain content that may be R 18+, X 18+ or RC.

8.12 This differs from the current provisions in sch 7 of the Broadcasting Services Act 1992 (Cth) (Broadcasting Services Act) and related industry codes, which provide that commercial content likely to be classified MA 15+ or R 18+ must be assessed by trained content assessors.^[8] The ALRC proposes that providers of content that is likely to be R 18+ should not need to be trained to determine the likely classification of content. If access to the content is restricted, the objectives of the law—particularly the protection of minors from adult content—are met.

Restrict or classify notices

8.13 The ALRC considers that if the Regulator, perhaps after receiving a complaint, considers that a piece of content is likely to be R 18+, the Regulator should issue a notice to the content provider requiring it to restrict access to the content or have the content classified. This notice might be called a ‘restrict or classify notice’. The proposed Classification of Media Content Act should not provide an offence for simply publishing R 18+ content without restricting access (a law that hosts of large quantities of user-created content may be unable to comply with), but rather should provide for an offence of failing to comply with a ‘restrict or classify notice’.

8.14 This proposal should be broadly consistent with those provisions in sch 7 of the Broadcasting Services Act that provide that certain ‘prohibited’ content online must be subject to a restricted access system, and if it is not, the ACMA may issue various notices. The ALRC proposes that the new Classification of Media Content Act apply a similar rule to both online and offline content.