Content regulation and online classification

Nicolas Suzor gives an overview of online content regulation in Australia

Australia has a co-regulatory content regulation scheme. Telecommunications providers work together to develop industry codes of practice. These industry codes are overseen by the Australian Communications and Media Authority (ACMA) under the Broadcasting Services Act 1992 (Cth) Schedules 5 and 7. [Update: The Enhancing Online Safety for Children Act 2015 amended the Broadcasting Services Act so that the Office of the Children's eSafety Commissioner is now responsible for investigating and addressing most complaints under Schedules 5 and 7.] Schedule 5 applies to material hosted outside of Australia, and Schedule 7 applies to material hosted inside Australia. The Communications Alliance is the industry body that represents ISPs and Content Hosts.

Student video topic: Explain the co-regulatory system that applies to Australian telecommunications providers. How are codes negotiated, registered, and how can they be changed or over-ruled by the Government?

Content classification in Australia

The National Classification Code provides a statement of purpose that classification decisions are to give effect, as far as possible, to the following principles: (a) adults should be able to read, hear and see what they want; (b) minors should be protected from material likely to harm or disturb them; (c) everyone should be protected from exposure to unsolicited material that they find offensive; (d) the need to take account of community concerns about: (i) depictions that condone or incite violence, particularly sexual violence; and (ii) the portrayal of persons in a demeaning manner.

Publications, Films, and Computer games are rated by the Classification Board, according to the Classification Guidelines. Each State and Territory determines the consequences of classification. The ratings systems differ by media:

  • Films: G, PG, M, MA15+, R18+, X18+
  • Publications: Unrestricted, Unrestricted (M), Category 1 Restricted, Category 2 Restricted
  • Games: G, PG, M, MA15+, R18+

Emily Rees explains Australia's classification ratings

Classification Guidelines: R18+

  • High impact violence, simulated sex, drug use, nudity
  • No restrictions on language

Classification Guidelines: X18+

  • Real depictions of sexual intercourse and sexual activity between consenting adults
  • No depiction of violence or sexual violence
  • No sexually assaultive language
  • No consensual activities that ‘demean’ one of the participants
  • No fetishes (such as ‘body piercing’; candle wax; bondage; fisting; etc)
  • No depictions of anyone under 18, or of adults who look under 18.

Classification Guidelines: Refused Classification

“Publications that appear to purposefully debase or abuse for the enjoyment of readers/viewers, and which lack moral, artistic or other values to the extent that they offend against generally accepted standards of morality, decency and propriety will be classified ‘RC’.”

For films, anything that exceeds X18+ is Refused Classification. For Games, anything that exceeds R18+ is RC (A new R18+ category was introduced for Games in 2012).

Classification Guidelines: RC (Films)

  • Detailed instruction in crime or violence
  • Descriptions or depictions of child sexual abuse or any other exploitative or offensive descriptions or depictions involving a person who is, or appears to be, a child under 18 years.
  • Violence: Gratuitous, exploitative or offensive depictions of:
    • violence with a very high degree of impact or which are excessively frequent, prolonged or detailed;
    • cruelty or real violence which are very detailed or which have a high impact;
    • sexual violence.
  • Sexual activity: “Gratuitous, exploitative or offensive depictions of:
    • activity accompanied by fetishes or practices which are offensive or abhorrent;
    • incest fantasies or other fantasies which are offensive or abhorrent.”
  • Drug use:
    • Detailed instruction in the use of proscribed drugs.
    • Material promoting or encouraging proscribed drug use.

Online classification

Diagram by Sophie Murdock

The online classification scheme is a complaints-based scheme. When ACMA receives a complaint, it applies the Guidelines to come to a preliminary view as to whether content is 'potential prohibited content'. If the content has not yet been classified, ACMA will obtain classification from the Classification Board.

Content hosted in Australia (Sch 7)

Hannah Burnett explains how the complaints system under Sch 7

Under Schedule 7, members of the public can make complaints about prohibited or potentially prohibited content 1), which the Commissioner must investigate. Content that is prohibited in Australia is defined as material that is or would be:2)

  • Refused Classification (content that exceeds the limits of all other catgories. RC content is not necessarily unlawful to possess or access, but it is unlawful to broadcast, sell, or screen publicly)
  • X rated (films that depict sexually explicit content);
  • Rated R18+ (Films or computer games with high impact violence, sex scenes, and drug use that are high in impact) without a Restricted Access System; or
  • Audiovisual content that is Rated MA15+ ('strong content' that is legally restricted to persons 15 years and over), provided over a commercial service, and not subject to a restricted access system.

If prohibited content is available from servers with an ‘Australian connection’, the Commissioner must order the service provider to remove or stop serving the content. This is done in different ways for different types of content:

  • For hosted content, the Commissioner must serve the hosting service a ‘final take down notice’.3) * For live-streaming content, the Commissioner must give the provider a ‘final service-cessation notice’.4)
  • Where prohibited content is linked to by an Australian indexing service (or search engine), the Commissioner must give the provider a ‘final link-deletion notice’.5)

To determine the applicable rating, internet content is evaluated as if it were a ‘film’6) under the Classification Guidelines. If content is ‘potentially prohibited’, the Commissioner must issue an interim notice and apply to the Classification Board for classification.

'Restricted Access System'

Must comply with ACMA’s RAS Declaration 2007: (a) requires an application for access to R 18+ content; (b) provides warnings and safety information for R18+ content; (c) verifies the age of applicants; (d) limits access to R18+ content or R18+ and MA15+ content as required; (e) includes a risk analysis; (f) includes quality assurance measures for R 18+ content; (g) meets the record keeping requirements for R 18+ content.

Review to the AAT (cl 113)

Available as of right Only available to the service provider concerned. (Who is the service provider?)

Internationally hosted content (Sch 5)

Anon explains the operation of Sch 5 for internationally hosted content.

Legislation provides for blocking of content if there is no industry code in force. However, there is a current industry code, and it does not require blocking. Under the code, URLs of prohibited content are given to voluntary filter vendors, but no further action is taken in regards to overseas hosted content.

Section 313 Blocking

Gab Red explains how s 313 is used by Government agencies to block websites

Matt Cartwright explains the recommendations of the recent Inquiry into the use of s 313

Annabel Burton discusses the Internet Watch Foundation and s 313(3)

Mandatory ISP filtering

Daniel 920622 explains the the previous Labor Government's proposal to require ISPs to block websites containing offensive content

1)
cl 37
2)
cl 20
3)
cl 47
4)
cl 56
5)
cl 62
6)
cl 25