Media regulation

Introduction

11.36 Children are avid consumers of media and information services, including television, radio, magazines and the Internet. Children aged between 5 and 12 years, for example, watch an average of 17 hours 27 minutes of television each week.[62]

11.37 Article 17 of CROC requires States Parties to recognise '... the important function performed by the mass media...' and encourage the dissemination of information that is of social and cultural benefit to children. It also requires parties to protect children from harmful material.[63]

Television broadcasts

11.38 In general, the content of programs shown on Australian commercial television is co-regulated by the Australian Broadcasting Authority (ABA) and the broadcasters through industry codes of practice. However, regulation is stricter in regard to children's television.

11.39 Each year, commercial television stations must broadcast a certain number of hours of program material specifically for children. This program material is classified by the ABA prior to broadcast under criteria set out in the children's television standards (CTS) established under the Broadcasting Services Act 1992 (Cth).[64] The CTS apply only to these quota programs and are designed to ensure the availability of quality material that adds to children's experience and understanding.[65] The Australian content standard ensures that a certain percentage of the programs broadcast are produced in Australia.[66]

11.40 One of the objects of the Broadcasting Services Act 1992 (Cth) is to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material that may be harmful to them.[67] The Act does not define the term 'harm'. It is generally interpreted to mean an adverse psychological impact on children. For example, the CTS provide that no quota program may present images or events in a way that is unduly frightening or unduly distressing to children or present images that depict unsafe uses of a product or unsafe situations that may encourage children to engage in activities dangerous to them.[68] The ABA is currently reviewing results of research on the television viewing behaviour of preschool aged children.[69]

11.41 In addition to complying with the CTS, the Broadcasting Services Act 1992 (Cth) requires the various sectors of the electronic broadcasting industry, including commercial television stations, to develop a code of practice.[70] In 1993 the ABA registered the Federation of Australian Commercial Television Stations code of practice that includes sections regulating the handling of complaints[71] and the classification of programs.[72] The code of practice also requires all advertisements directed to children to 'exercise special care and judgement' and comply with the relevant CTS.[73]

11.42 The national broadcasters, the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS), have particular responsibilities under their respective enabling statutes. Both the ABC and SBS must develop codes of practice relating to programming matters and complaints handling and notify them to the ABA.[74] The main focus is on protecting children from inappropriate material. For example, section 3.1 of the ABC code of practice states

[w]hile the real world should not be concealed from children, special care will be taken to ensure programs children are likely to watch unsupervised will not cause alarm or distress.[75]

11.43 Pay TV is less regulated than commercial free-to-air television. All Pay TV operators have channels for child viewers but there is no legislative requirement for this and no regulation of when certain programs are shown. The Pay TV sector has submitted a code of practice for registration by the ABA.

11.44 There is growing community concern, both in Australia and internationally, about the effect of violence portrayed on television, video and computer on viewers' behaviour, particularly the effect on the behaviour and development of children.[76] In response to this concern, legislation in the USA and Canada requires that a v-chip (a technological blocking device) be installed in all new television sets over a certain size.[77] The chip enables consumers to block the reception of programs in nominated ratings categories.

11.45 In the wake of the Port Arthur massacre, a federal Ministerial Committee looking at the portrayal of violence in various forms of the electronic media recommended that v-chips be included in all new televisions sold in Australia.[78] All the recommendations of the committee have been endorsed by federal Cabinet.[79] Legislation to this effect has yet to be introduced.

Radio broadcasts

11.46 Like commercial television stations, commercial radio broadcasters are required to comply with a code of practice.[80] The code developed by the Federation of Australian Radio Broadcasters, registered by the ABA in May 1993, does not include any provisions directed specifically at child listeners although it does prohibit the broadcasting of unsuitable programs such as those that incite violence or that present as desirable the misuse of drugs.[81] The radio code of practice is to be reviewed in the coming year.

On-line services

11.47 The Internet is becoming a popular source of information and entertainment for children. Increasing numbers of schools are coming on-line and material on the Internet targeted at children is burgeoning. As with television, there is increasing community concern that young people are being exposed to pornographic and other inappropriate material such as aggressive marketing on the Internet.[82] Placing or possessing material on the Internet that infringes existing legislation regulating, for example, racial vilification or defamation may be a criminal offence. These laws are difficult to enforce as the originators of Internet material can rarely be identified.

11.48 There is currently no specific government regulation or classification system for Internet material, including advertisements, accessible to children. Some commercially developed programs that allow parents to restrict children's access to on-line services are available. The federal Government has announced plans to amend the Broadcasting Services Act 1992 (Cth) to introduce codes of practice for Internet service providers. The legislative principles on which the regulatory regime will be based were released for comment in July 1997.[83]

11.49 The Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies recently suggested that on-line service providers should establish procedures to ensure that prospective account holders are over the age of 18.[84] Shortly afterwards the Wood Royal Commission made a number of recommendations designed to prevent material exploitative of children from being placed on the Internet and to protect young Internet users from other harmful material that may be available on-line.[85] The Royal Commission recommended that support be given to the development of labelling technology that can be combined with appropriate software to limit the material that can be accessed by minors.[86] It considered this necessary in light of the sheer scale of the Internet and the inability to regulate effectively what is available on it.[87]

11.50 The 1996 investigation into the content of on-line services by the ABA recommended a self-regulatory framework for the Internet. The main features of this framework would be the development of codes of practice for service providers and the development of voluntary content labelling schemes to enable parents and providers to identify material potentially harmful to children.[88] The review considered that the regulatory framework for on-line services should recognise that the majority of parents will accept responsibility for managing their children's use of on-line services in the home.[89] The Inquiry endorses this position.

Printed material

11.51 The Classification Board within the federal Office of Film and Literature Classification classifies print media on behalf of the ACT, NSW, Victoria, South Australia and the Northern Territory. Other States operate their own schemes. Material is classified in accordance with the national classification code.[90] One of the principles of the code is that minors should be protected from material likely to harm or disturb them.[91] No statutory definition of harm is provided.

11.52 Classified publications are divided into restricted and unrestricted material.[92] Restricted material is divided into two categories both of which are considered unsuitable for children to see or read. There are no other provisions specific to children. The classification scheme administered by the Board is voluntary and not all publications are submitted for classification.

Complaints and review mechanisms

11.53 Children tend not to make complaints about media services on their own behalf.[93] The Broadcasting Services Act 1992 (Cth) lays down a general procedure for making complaints related to radio and television codes of practice that requires consumers to approach the service provider first. If the consumer is not satisfied with the provider's response or does not receive one within 60 days, he or she can refer the matter to the ABA for investigation.[94] Complaints about possible breaches of program standards, including CTS, can be made directly to the ABA.

11.54 Any person aggrieved by a decision of the Classification Board about a publication can apply for review of that decision by the Classification Review Board.[95] The application must be in writing and accompanied by the prescribed fee.[96]

11.55 These complaints mechanisms must be made accessible to child consumers through targeted publicity campaigns and appropriately modified procedures.

It cannot be assumed that the methods which work for adults in terms of formal complaints are also accessible to children. This requires imagination and sensitivity to the developmental stages of childhood in relation to various approaches which might enable children to participate in the processes of critical evaluation of the media.[97]

Recommendation 61 Information about media complaints mechanisms should be included in the national child consumer education strategies proposed at recommendation 51.

Recommendation 62 Media service providers, the ABA and the Classification Board should ensure that their complaints procedures are appropriately modified for child consumers.

Reducing potential for adverse impact

11.56 Children need to be protected from the potentially adverse impact of the media until they are mature enough to treat material critically. A graphic illustration of the media's potential influence on young people's behaviour is provided by recently released material concerning youth suicide. Medical research has found that media reports of individual youth suicides leads to an increase averaging 13.5% in these deaths.[98] Mandatory controls on the reporting of suicide are now being considered as part of the National Youth Suicide Prevention Strategy.[99]

11.57 One of the principal objects of the Broadcasting Services Act 1992 (Cth) is to protect children from potentially harmful program material.[100] For regulatory systems to be effective, regulators must be able to identify accurately and specifically the harm they seek to avoid. This can be difficult in the media industry because its products are open to diverse interpretations. Child consumers cover a wide range of ages and developmental stages. What is distressing to one child consumer may be amusing or informative to another. Neither CROC nor the federal legislation regulating the media offer guidance on the meaning of harm in this context.[101]

11.58 International and available Australian research on the effects of media on children at different ages and stages of development should be comprehensively reviewed.[102] A summary of the results should be distributed to legislators, regulators, media providers and schools.

11.59 In a recent report, the Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies recommended that State and Territory education ministers encourage schools to offer a compulsory course on a critical evaluation of the media at some stage during the later primary school years.[103] The Inquiry supports this suggestion and considers that this material should be incorporated in the national child consumer education strategies proposed at recommendation 51.[104]

Providing children with some basic skills of critical analysis, particularly of the mass media and electronic services is probably as important as understanding Australia's political institutions.[105]

Recommendation 63 International and Australian research on the effects of the media on children at different ages and stages of development should be comprehensively reviewed to determine more clearly what is harmful to the variety of child consumers. A summary of the results should be distributed to legislators, regulators, media providers and schools.

Implementation. The Department of Communications and the Arts, the Consumer Affairs Division of the Department of Industry, Science and Tourism and the ABA should conduct this review in consultation with relevant community groups. The review results should be distributed by OFC.

Recommendation 64 The national child consumer education strategies proposed at recommendation 51 should strongly encourage all States and Territories that have not already done so to include compulsory units on critical evaluation of the media, including advertising, in primary and secondary school syllabuses.

[62] Federal Bureau of Consumer Affairs Discussion Paper: Advertising Directed at Children Federal Bureau of Consumer Affairs Canberra 1994, 2. For detailed information on what kinds of programs children watch see ABA Monograph 4 'Cool 'or 'Gross': Children's Attitudes to Violence, Kissing and Swearing on Television ABA Sydney 1995 and ABA Monograph 7 Kids Talk TV: 'Super Wickid' or 'Dum' ABA Sydney 1996.

[63] In considering children's media rights it is important to take account not only of their right to be protected from harmful material but also of their right to be active participants in media services not just passive consumers: B Simpson DRP Submission 16. This right derives from various articles in CROC art 13 provides that children shall have the right to freedom of expression including freedom to seek, receive and impart information through any media of the child's choice (subject to necessary restrictions such as defamation laws). This must be read in conjunction with art 12 which gives children the right to express their views in matters affecting them and art 31 which enshrines the right to 'engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts'.

[64] Pt 9.

[65] Children are defined in the CTS as those under 14 years of age. Programs classified 'P' (preschool children) can be shown between 7 am and 4.30 pm Monday to Friday. Programs classified 'C' (children) can be shown between 7 am and 8 am and between 4 pm and 8.30 pm Monday to Friday and 7 am to 8.30 pm on weekends and school holidays: CTS 1(1), ABA Children's Television ABA Sydney 1997, 22. Other suitable programs such as those rated 'G' (general) may also be shown at these times. B Simpson DRP Submission 16 considered that the CTS should be of more general application and cover a broader range of programming to ensure that all children are exposed to appropriate, quality programs. It also considered that the CTS should reflect children's rights under CROC to participate in the media: see fn 63 above.

[66] ABA Australian Children's Television ABA Sydney 1997 appendix.

[67] s 3(j).

[68] CTS 10(b), (c): ABA Australian Children's Television ABA Sydney 1997, 27.

[69] ABA DRP Submission 51.

[70] s 123(1). The Federation of Australian Commercial Television Stations cannot compel a member to comply with the code of practice but the ABA can impose a condition on a licensee requiring it to comply: s 44(2)(a). The ABA can also determine a program standard if it is satisfied that the code is not operating to provide appropriate community safeguards in certain areas including the protection of children from harm: s 125(1).

[71] Under s 7 of the code, licensees have a maximum of 20 days to provide a substantive reply to a written complaint about a matter falling within the code.

[72] s 2. Classified material must be broadcast in suitable time zones. A revised code has recently been submitted to the ABA for registration.

[73] s 6.16. CTS 17–21: ABA Australian Children's Television ABA Sydney 1997, 29–30.

[74]Special Broadcasting Service Act 1991 (Cth) s 10(1)(j).

[75] s 2.6 of the general SBS program code states that 'SBS recognises its responsibility to carry its multicultural message to young people and includes appropriate programming in schedules as and when funds permit': SBS Codes of Practice: Programming Policies SBS Sydney 1996, 19.

[76] See eg M Brown 'The portrayal of violence in the media: Impacts and implications for policy' (1996) (55) Trends and Issues in Crime and Criminal Justice; Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies Report on the Portrayal of Violence in the Electronic Media Senate Printing Unit Canberra 1997; W Josephson Television Violence: A Review of the Effects on Children of Different Ages Canadian Heritage Ottawa 1995.

[77]Telecommunications Act 1996 (US) s 551(c); (1996) 2 International Research Forum on Television and Children 4.

[78] The Committee, chaired by the Minister for Communications and the Arts, included the Minister for Primary Industries and Energy, the Minister for Health and Family Services, the Minister for Family Services, the Attorney-General and a Parliamentary secretary: R Alston, Minister for Communications and the Arts Media Release 8 May 1996.

[79] R Alston, Minister for Communications and the Arts Media Release 9 July 1996.

[80]Broadcasting Services Act 1992 (Cth) s 123(1)(a).

[81] For information on the role of radio in young people's lives and the types of programs they listen to see ABA Music, New Music and All That: Teenage Radio in the 90s ABA Sydney 1996. See also ABA, Australia Council & Australian Record Industry Association Youth and Music in Australia: A Review ABA Sydney 1997.

[82] eg Office of the Status of Women IP Submission 82; Australian Family Association (WA) IP Submission 125; Australian Family Association (NSW) DRP Submission 11; SA Independent Schools Board DRP Submission 31.

[83] R Alston, Minister for Communications and the Arts & D Williams, Attorney-General and Minister for Justice Media Release 15 July 1997.

[84]Report on the Regulation of On-Line Services Pt 3 Senate Printing Unit Canberra 1997 rec 6. See also ABA Investigation into the Content of On-Line Services ABA Sydney 1996, 104.

[85] Wood Royal Commission Final Report Vol V: The Paedophile Inquiry NSW Government Sydney 1997 ch 16.

[86] id rec 100.

[87] id 1153.

[88] ABA Investigation into the Content of On-Line Services ABA Sydney 1996, 93, ch 6.

[89] id 75.

[90]Classification (Publications, Films and Computer Games) Act 1995 (Cth) Sch.

[91]Classification (Publications, Films and Computer Games) Act 1995 (Cth) Sch.

[92] Certain material, such as publications that promote, incite or instruct in matters of crime or violence, will be refused classification (RC): Classification (Publications, Films and Computer Games) Act 1995 (Cth) Sch.

[93] In 1995 the ABA received 3 051 complaints, 91 of which alleged that material shown on commercial television was unsuitable for children: ABA Your Say: A Review of Audience Concerns about Australia's Broadcast Media ABA Sydney 1996, 10. There are no statistics available on how many complaints were made by young people but anecdotal evidence suggests it is generally less than 50 a year.

[94] ss 148, 149.

[95]Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 42(1)(d).

[96]Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 43(1).

[97] B Simpson DRP Submission 16.

[98] A Darby 'Schools' anti-suicide programs 'risky'' The Sydney Morning Herald 25 August 1997, 4.

[99] The Australian Medical Association is in the process of drafting principles to assist broadcasters when classifying programs depicting youth suicide. Note also that the ABA recently upheld a complaint by the Australian Medical Association that an episode of Beverly Hills 90210 that included a storyline about youth suicide had been incorrectly classified: (1997) 57 ABA Update 20.

[100] See para 11.40.

[101] See paras 11.40, 11.51. The Vic Government recently announced a parliamentary inquiry into the effects of television and video games on children's education and values: G Boreham & G Green 'Kennett orders inquiry into TV and children' The Age 19 September 1997, 1.

[102] This proposal was supported by Australian Family Association (NSW) DRP Submission 11; Association of Heads of Independent Schools of Australia DRP Submission 15; Young Media Australia DRP Submission 22; Women's Advisory Council DRP Submission 26; P Eastaugh DRP Submission 29; SA Independent Schools Board DRP Submission 31. The ABA DRP Submission 51 pointed out the importance of taking into account earlier reviews of research when this task is undertaken.

[103] Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies Report on the Portrayal of Violence in the Electronic Media Senate Printing Unit Canberra 1997, 42.

[104] See also NSW Legislative Council Standing Committee on Social Issues Report 8 A Report into Youth Violence in NSW NSW Government Sydney 1995 rec 49.

[105] National Children's and Youth Law Centre DRP Submission 59.