Bills Digest no. 158 2006–07
Communications Legislation Amendment (Content Services)
Bill 2007
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Communications
Legislation Amendment (Content Services) Bill
2007
Date introduced: 10 May 2007
House: House of Representatives
Portfolio: Communications, Information Technology
and the Arts
Commencement: There
are various commencement dates (refer to the table on page 1 of the
Bill). The bulk of the Bill, Schedule 1 Part 1, contains new
Schedule 7 to the Broadcasting Services Act 1992, and is
to commence on a date to be fixed by proclamation, or within six
months of the date of Royal Assent.
The Communications Legislation Amendment (Content
Services) Bill 2007 (Content Services Bill) seeks to amend the
Broadcasting Services Act 1992 (the BSA) to provide
for the regulation of content services delivered over convergent
devices such as broadband services to mobile handsets and new types
of content provided over the Internet.
The Bill also seeks to amend the
Telecommunications (Consumer Protection and Service Standards
Act 1999 to ensure that Australia s Indian Ocean
Territories can be included in regular independent reviews of
telecommunications services in regional, rural and remote
Australia.
According to the United Kingdom organisation,
Childnet, globally there are one and a half billion mobile phone
subscribers. There are nearly 14 million mobile phones in
Australia.(1) A significant proportion of mobile phone
customers are young people who, with the advent of third generation
technology, have access to photography, video, radio, music, games,
Internet browsing and personal software applications, including
SMS, MMS and video messaging, chat, contact, dating and adult
subscription services.(2)
There has been increasing concern
internationally that access to these services will compound risks
for children and young people that had been previously identified
with the advent of the Internet. Concerns range from fear young
people will experience greater exposure to material that is
pornographic, hateful or violent in nature or material that
encourages dangerous or illegal activities, to milder concerns
about access to material that is inappropriate, misleading or
inaccurate.
There is evidence to suggest that the
possibility of threats to children from mobile phones has
materialised in many instances. In Japan, for example, it is
claimed that more than 90 per cent of child prostitution cases
involve the use of Internet enabled mobile phones. It is also
claimed that dating sites, while intended for adults, are
increasingly used as covers for paedophilia.(3)
The United Kingdom s advisory body on the
development of e-strategy , BECTA (Bringing Educational Activity to
All), has emphasised that despite the existence of evidence about
the dangers access to devices such as mobile phones carry for young
people, it remains difficult for parents to supervise access and
contacts. BECTA notes that mobile phones are mostly turned on and
hence a child is always contactable and always vulnerable
.(4) It adds that the dangers are many in the
development of mobile technology. The integration of cameras and
mobile phones may result in photos of children being circulated
without knowledge or permission, online bullying could be
compounded and opportunities for legal and financial misuse
increase.(5)
Childnet argues that:
children and young people across the world have a
right not only to be empowered through the use of these [mobile
phone] technologies, but also a right to be protected as they seek
to make the most of the benefits and opportunities which the mobile
revolution offers them.(6)
A range of options available to address the
issue of regulation of what have been labelled convergent devices,
that is mobile phones and other mobile communications devices that
can deliver audiovisual content, are currently being explored
internationally. Principally, these fall into two camps,
self-regulation and co-regulation.
Self-regulation: Self-regulation involves the
development of rules and codes of conduct by industry. Industry
then monitors and enforces those codes without government
intervention. Supporters of self-regulation claim that this is the
most effective and efficient form of regulation to suit the
fast-paced and complex mobile phone and Internet industries.
Government interference, it is claimed, only adds to costs for
business.
Co-regulation: co-regulation involves
companies, government and user groups in jointly developing rules
and regulations. There are different possible models of
co-regulation which allow greater or lesser degrees of freedom to
industry, more or less involvement from consumer bodies and
government. For example, the United Kingdom Code(7)
involves minimal government intervention, whereas there is more
government involvement in regulation in Germany and
Italy.(8)
The Australian system of media content
regulation has principally been co-regulatory. Television, radio
and the Internet are regulated jointly through legislation and
through industry codes and standards.
The Australian Communications and Media Authority
(ACMA)(9) regulates radio and television content through
means such as:
- broadcast licence conditions set out in the BSA
- mandatory program standards that outline the requirements for
Australian content and children's programs on commercial
television(10)
- industry codes of practice that cover most matters relating to
the content and presentation of radio and television programs
including classification and the amount of advertising
allowed.(11)
Media content policy principles and objectives
upon which legislation and standards are based reflect respect for
community standards and understanding of the importance of
protecting children from exposure to harmful content.
Issues relating to regulation of new and
emerging technologies surfaced as early as 1993, when a Senate
Select Committee on Community Standards (SSCCS) noted that complex
regulatory issues were associated with the availability of
pornographic and violent material on bulletin boards, accessed from
overseas sources via telephone lines. The Committee urged that
consideration should be given to immediate remedial
measures.(12)
In 1994, a taskforce investigated the
possibility of regulation of computer bulletin boards, which was
strongly opposed by industry. In July 1995, following release of a
consultation paper on the regulation of on-line services, ACMA also
investigated the possible regulation of online services. In June
1996, ACMA recommended that on line service providers develop codes
of practice within a self-regulatory framework.
On 15 July 1997 the Government announced the
principles for a national approach to regulation of the content of
on-line services. These were that material accessed on line should
not be subject to a more onerous regulatory framework than
'off-line' material and that a national framework would balance
community concerns in relation to content with a need to ensure
that regulation did not inhibit industry growth and
potential.(13)
In 1999 the Parliament passed legislation to
establish a framework for the regulation of the content of online
services. The legislation sought to:
- provide a means for addressing complaints about certain
Internet content
- restrict access to certain Internet content that is likely to
cause offence to a reasonable adult and
- protect children from exposure to Internet content that is
unsuitable for children.(14)
The new regulatory regime placed certain
obligations on Internet Service Providers and Internet Content
Hosts and required the development of industry codes of
practice.
The codes, which came into force on 1 January
2000, have since been revised to keep pace with changes in
technology and emerging dangers for children. The most recent codes
were approved by ACMA in May 2005.(15) These codes
were in response to recommendations contained in the Government s
May 2004 report on the operation of the co-regulatory scheme for
Internet content, established under Schedule 5 to the BSA (see
reference below). They include some protections for
children in the mobile Internet environment.
Three codes of practice exist - one for
Internet content hosts (ICHs) and two for Internet service
providers (ISPs). The matters that must be dealt with in the codes,
and the criteria for registration, are specified in Schedule 5 to
the BSA. The Codes are registered with and monitored by
ACMA. ACMA can seek enforcement action in the Federal Court.
Penalties exist for non compliance.
As part of the co-regulatory scheme ACMA
provides advice and assistance to families about a range of
Internet safety matters, primarily through its Internet safety web
site for families(16) and related printed resources.
ACMA works with national and international bodies to raise
awareness of Internet safety issues and provide parents with
information that helps them supervise their children s Internet
usage. In particular, ACMA works closely with the police to educate
parents and children about Internet safety.
On 13 May 2004, the then Minister for Communications,
Information Technology and the Arts tabled the Report of the
Review of the Operation of Schedule 5 to the Broadcasting Services
Act 1992 (Schedule 5 review).(17) In evaluating the
online content scheme in place at the time, the Schedule 5 review
considered the impact that convergent devices could have on its
operation.
The Schedule 5
Review concluded that appropriate protections needed to be put in
place to protect all users of audio visual content on convergent
devices. It considered that in the short term rules imposed under
the Telecommunications Act 1997 could address this issue
in relation to content delivered on SMS and MMS. In the longer
term, however, it recommended that existing regulation be reviewed
to take into account the nature of new and emerging devices
ACMA consequently established controls, in
June 2005, under the Telecommunications Service Provider (Mobile
Premium Services) Determination (No. 1) 2005(18) on
access to adult content supplied via mobile phones, whether that
content was supplied by premium rate SMS and MMS or on proprietary
network content portals.
The purpose of the Determination was to
provide a framework within which community safeguards relating to
mobile premium services were established, and public interest
considerations could be addressed, by imposing rules promoting the
greatest use of industry self-regulation.
Despite the existence of the regulatory
instruments noted, concerns have continued to be raised about the
inability of existing regulation to deal with content issues in
relation to mobile phones and live streamed content services.
Concern was particularly important in relation
to the issue of regulation of what is labelled as ephemeral
content. Ephemeral content is defined as live content. It includes
streamed audio visual material and interactive chat services.
Controversy surrounding the Big Brother television show in 2006
involved the issue of how to deal with ephemeral content. Existing
media regulation ensured that an incident, in which two male
contestants allegedly sexually harassed a female contestant, was
not shown on television. However, existing online content
regulation was unable to prevent streaming on the Internet of video
of the incident through Big Brother s web site.(19)
The incident prompted the Communications
Minister, Helen Coonan to announce on 5 July 2006 that
legislation will be introduced into Parliament to extend content
regulation to video streamed on the Internet .(20)
As the Government s Explanatory Memorandum to
this Bill notes, new content services, as the Big Brother streaming
incident helps to illustrate, are not pre-recorded or stored prior
to delivery and so cannot be classified or pre-assessed in the same
manner as stored content .(21)
The Content Services Bill is intended to
address the issues noted above in relation to concerns raised that
children may be exposed to inappropriate or harmful material or
that they may be lured into unsafe contact as a result of accessing
ephemeral content.
As suggested by the Department of
Communications Information Technology and the Arts Report,
Review of the Regulation of Content Delivered over Convergent
Devices,(22) the Bill proposes that commercial
ephemeral services will be co regulated through processes of pre
assessment of content, access restriction or prohibition and
complaints handling.
The Content Services Bill also deals with
issues raised by existing regulatory arrangements in relation to
stored content. The Government has argued that interim regulatory
arrangements were either not designed for content regulation or
cannot apply to the full range of convergent content service
offerings .(23) It has chosen to reject a self
regulatory option for content and to continue a co-regulatory
approach to regulation of new content services.
It has noted that while self-regulation would
provide the mobile content industry with flexibility to introduce
services, it may not result in consistency of protection for
consumers.(24) According to the Explanatory Memorandum
this Bill will provide certainty for content providers and enable
the responsible rollout of innovative services for consumers
.(25)
When it initially introduced online content
regulation, the Government was concerned that it should be
consistent with other content regulation applied to offline
services in Australia. To this end, Internet content regulation has
been aligned with the regulation that applies to narrowcast
subscription television services under the National Classification
Scheme.
The National Classification
Scheme is a cooperative arrangement between the
Commonwealth, States and Territories established by the
Classification (Publications, Films and Computer Games) Act
1995 (the Classification Act). The Classification Act provides
that the Classification Board classifies films (including videos
and DVDs), computer games and certain publications. As part of the
National Classification Scheme, each State and Territory has
enacted classification enforcement legislation that complements the
Commonwealth Classification Act. State and Territory classification
legislation prescribes penalties for classification offences and
provides for enforcement of classification decisions in the
particular jurisdictions.(26)
The National Classification
Code exists as a separate document authorised by the
Classification Act. It contains descriptions about the products
which would fall within the classification types. For example, the
Code sets out the level of depiction of sex and violence and other
issues which would cause a film to be classified as G, PG, M etc.
The criteria for classification are also contained in the
Guidelines for the Classification of Films and Computer
Games and the Guidelines for the Classification of
Publications, the latest versions of which came into operation
on 26 May 2005.
The Code sets out
a number of principles for classification decisions. These
include:
- adults should be able to read, hear and see what they want
- all people should be protected from exposure to unsolicited
material that they find offensive
- minors should be protected from material likely to harm or
disturb them
- the need to take account of community concerns about:
- depictions that condone or incite violence, particularly sexual
violence, and
- the portrayal of persons in a demeaning manner.
Under the Classification Act, the matters to
be taken into account in making decisions on the classification of
films or computer games include:
- the standards of morality, decency and propriety generally
accepted by reasonable adults
- the literary, artistic or educational merit (if any) of the
publication, film or computer game
- the general character of the publication, film or computer
game, including whether it is of a medical, legal or scientific
character
- the persons or class of persons to or amongst whom it is
published or is intended or likely to be
published.(27)
Classifications are ranked in a hierarchy of
impact that take into account the treatment of classifiable
elements such as violence, sex and language and their cumulative
effect.
The Code and classification guidelines are
reviewed periodically to ensure that they adequately reflect
community standards.
To date, many industry and consumer groups
have not yet commented on the Bill, however there may be comment in
forthcoming submissions to the Senate committee inquiry into the
bill, due to report on 11 June 2007.(28)
The Internet Industry Association (IIA)
opposes content filtering . It has argued that calls for forced
network level filtering by ISPs represents an inappropriate and
heavy handed response to the important and complex issue of online
child protection and considers that current arrangements, are
adequate to ensure that no Australian child need be exposed to
inappropriate material on the Internet. (29)
In the IIA view, mandatory solutions cannot
cope with multiple-user households or commercial situations leaving
Australians with a one-size-fits-all solution that takes no account
of the different environments in which the internet is used
.(30)
Upon release of the Content Services Bill the
IIA commented that is was considering development of further
industry codes of practice to form the implementation 'arm' of the
legislation, to facilitate compliance by industry in a manner which
will not impede the ongoing development of the internet in
Australia, impose undue burdens on industry or restrict innovation
of new content services .(31)
Australian Mobile Telecommunications
Association (AMTA)
AMTA has been supportive of the Government s
general proposal to implement safeguards for children from
accessing offensive or harmful material on mobile phones. It has
made no public comment since the Bill was
introduced.(32)
There appears to be no specific reaction to
the Bill from the ACA. However, from previous comments made by the
organisation, it appears that ACA supports an industry self
regulatory environment, inclusive of community participation in
developing and enforcing standards, coupled with a genuine
commitment to seeking international standards of content rating as
part of global consumer protection. It is also supportive of
providing consumers with cost-effective methods to filter or block
material that they might find offensive or which might be harmful
or distressing to children.(33)
In a 2004 submission to DCITA, Young Media
Australia did not support self-regulation or co-regulation to
regulate mobile phones. It called for more restrictive government
regulation for mobile phones as this would better take into account
that there is less parental control possible for these
devices.(34)
Following introduction of this Bill, YMA
commented that the new laws would make it more difficult for
children to be exposed to violent, sexually explicit or
inappropriate material.(35)
There appears to have been no specific comment
from any political parties on this legislation. However, the ALP
National Platform and Constitution notes that Labor is supportive
of strengthening legislation to meet the challenges of adult and
other materials being made available to children and young people
on mobile phones .(36)
The Explanatory Memorandum notes that under
the proposed scheme the role of ACMA will be expanded, and that it
will periodically be required to refer material to the
Classifications Board for classification, and pay the associated
fee. The 2007-08 Budget papers show that total resourcing for ACMA
has increased from $55.6 million in 2006-07 to $64.9 million in
2007-08, and a staffing increase from 390 to 420.(37)
However it is not stated if this increase is related to ACMA s
expanded role under the new scheme set out in this Bill.
The financial impact for content service
providers is not expected to be great, particularly given that the
new regulations are similar to those imposed for mobile premium
services, which the Explanatory Memorandum states have been
accepted and implemented by industry.(38)
The key amendment in Schedule 1 is the
proposed insertion of a new Schedule 7 Content
Services into the BSA. New Schedule 7 has 9 Parts, some of
which contain several divisions. The new Schedule outlines how
content services to convergent devices (mobile phones, Blackberrys
etc) are to be regulated. It is inserted by item
77.
Items 1-76 make minor
amendments to the Australian Communications and Media Authority
Act 2005 and the BSA.
Part 1 of new Schedule 7
provides an overview of the new scheme for regulation of content
services, and definitions.
Central to the regulatory regime established
in new Schedule 7 is the concept of prohibited
content . Clause 20, the key provision, sets out
when content will be prohibited.
Content(39) (other than an eligible
electronic publication ) will be prohibited content if one of the
following set of conditions apply:
- the content has been classified RC (Refused Classification) or
X 18+ by the Classification Board
- the content has been classified R 18+ and access is not subject
to an age verification machine(40)
- the content has been classified MA 15+, access is not subject
to an age verification machine, the content is provided by a
commercial service (other than a news or current affairs service)
and the content does not consist of text and/or still visual
images
- the content has been classified MA 15+, access is not subject
to an age verification machine, and the content is provided by
means of a mobile premium service (41).
Content that
consists of an eligible electronic publication (i.e. an
electronic or audio book or magazine) is prohibited content if:
- it has been classified RC, category 2 restricted, or category 1
restricted by the Classification Board(42)
(subclause 20(2)).
Content will be
potential prohibited content if:
- it has not been classified by the Classification Board and, if
it were to be classified, there is a substantial likelihood that it
would be prohibited content as defined by clause 20 (clause
21).
Clauses 22
27 set out arrangements for classifying content for the
purposes of Schedule 7. Content may be classified either by
applications for classification made under this Schedule, or by
applications made under the Classification Act.
Clause
22 sets out the persons who may apply to the
Classification Board for the classification of content under this
Schedule, and the manner in which that application must be made.
Persons who may apply include relevant service providers and the
ACMA.
In response to
applications for classification of content, the Classification
Board is obliged to classify the content in accordance with
whichever of clauses 24 and 25 is applicable (new clause
23). Clause 24 deals with classifying
films, computer games or electronic books and magazines.
Clause 25 deals with classifying content that does
not fit any of these categories for example content consisting of a
webpage containing a mixture of text and moving images. Such
material will be classified as if it were a
film.(43)
Content may be
classified either by applications for classification made under
Schedule 7 of the BSA, or by applications made under the
Classification Act. In cases where classifications are made under
the Classification Act, they are deemed to be classifications for
the purpose of this Schedule (subclause 24(1)).
Where classifications have not been made under the Classification
Act they are to be made under Schedule 7 according to the
applicable rules in the Classification Act (subclause
24(3)). In the case of electronic publications they must
be classified according the same rules that would apply to the
corresponding print publication (subclause
24(4)).
Clause
26 is a consequential and transitional provision deeming
classifications made under the existing Schedule 5 to be classified
under the new Schedule 7.
Clauses 28
29 deal with arrangements for the reclassification of
content over time. The Explanatory Memorandum states that these
provisions largely mirror the corresponding arrangements in the
Classification Act.
If content has
been classified under Schedule 7 by the Classification Board, then
the Board must not reclassify the content within 2 years. After
that 2 year period, the Board may reclassify the content if
required to do so by the Minister, the ACMA, a designated content
service provider or on the Classification Board s own initiative
(clause 28). Clause 29 would
require the Board to give notice of its intention to reclassify and
invite submissions on this matter.
Clauses 30
35 deal with the review by the Classification Review Board
( Review Board ) of classification decisions that are made under
this Schedule or under the Classification Act.
Persons who may
apply to the Review Board for a review of a decision are the
Minister, the ACMA, a designated content service provider and a
person aggrieved by the classification (clause
30).
Clauses
31 and 32 set out the formal requirements
for an application for review of a classification.
Clause
33 provides that for the purposes of reviewing a decision
to classify content under this Schedule, the Review Board will be
able to exercise all the powers and discretions that are conferred
on it by this Schedule, and must make a written decision confirming
the classification or reclassifying the content.
If the Review Board reclassifies the
content, that decision will have effect under this Schedule and
existing Schedule 5 as if the content had been reclassified by the
Classification Board (subclause 33(2)). The
Explanatory Memorandum explains that this means that references in
this Schedule to content classified by the Classification Board
also apply to content that has been reclassified by the Review
Board.(44)
Clauses
34 and 35 are provisions aimed at
providing consistency of classification between review decisions
made under the Classification Act and Schedules 7 and 5 of the
BSA.
Clause
34 deals with the review of classification of content
consisting of a film, or a computer game by the Review Board under
the Classification Act. It provides that if the film or computer
game has been classified under the Classification Act, and that
classification is reviewed by the Review Board under that Act, the
resulting classification decision will be effective for this
Schedule and existing Schedule 5.
Clause
35 deals with the review of classification of electronic
publications by the Review Board. It provides that if a
print publication has been classified under the
Classification Act, and that classification is reviewed by the
Review Board under that Act, the resulting classification decision
will have effect in relation to the corresponding
electronic publication under this Schedule and existing
Schedule 5.
The Explanatory Memorandum cites the following
example:
If the Classification Review Board reviews a
decision under the Classification Act to classify a book of
photographs as Unrestricted, and decides to re-classify that book
as Category 1 Restricted, the latter classification will apply to
the eligible electronic publication of that
book.(45)
Clause
36 would provide that section 57 of the Classification
Act, (which deals with procedural matters relating to decisions of
the Classification Board), will apply in the same way to the
consideration by the Classification Board of a matter arising under
this Schedule.
Subclause
36(2) clarifies that a number of provisions of the
Classification Act will not apply to a classification under this
Schedule. The particular provisions are spelt out in the
Explanatory Memorandum.(46)
A major part of the Bill sets up a complaints
handling system for convergent content services. The government has
opted for a co-regulatory approach which will see industry
participants develop a code of practice or standards for handling
complaints. In the first instance, consumer complaints will go to
industry participants who have a complaints handling mechanism
under their binding industry code of practice. In the event that
they are not signatories to a code of practice, or the matter is
unresolved, complaints can be referred to the Australian
Communications and Media Authority (ACMA). This reflects ACMA s
existing role for Internet regulation. The Explanatory Memorandum
outlined the benefits of this approach:
By utilising the expertise of ACMA in relation to
broadcasting and online content regulation, the proposed framework
can be expected to generate regulatory efficiencies and to be
aligned to the greatest extent practicable with broadcasting
content regulation which is generally well understood by consumers
and industry alike.
Providing scope for complaints to be directed to
ACMA where a content service provider has not established a
complaints handling mechanism strikes an appropriate balance
between allowing for flexibility in industry self-regulation and
ensuring that consumer complaints are always dealt with
appropriately.(47)
This part of the Bill sets out the ACMA
complaints handling system.
Subclause 37 (1) states that
if a person has reason to believe that end-users in Australia can
access prohibited content or potential prohibited content provided
by a content service, the person may make a compliant to the ACMA
about the matter. Similarly, under subclause
37(2), if a person believes that a hosting service is
hosting prohibited or potential prohibited content, they may make a
complaint to the ACMA. Complaints may also be made about links to
prohibited or potential prohibited material (subclause
37(3)).
The complaint must:
- identify the content
- if the content is stored set out how to access the content (for
example, a URL, password, or the name of the newsgroup), and the
name of the host country if known. However, a complainant is not
required to give this information if to do so would cause them to
contravene a Commonwealth or State/Territory law (subclause
37(5))
- if the content is live content set out details of how the
content was accessed, the date and time it was accessed, and the
reasons why the complainant believes it was prohibited or potential
prohibited content. Complaints regarding live content must be made
within 60 days of the occurrence of the incident
- be in writing, or in a specified kind of electronic
transmission (i.e. email) (clause 39), and
- be made by an Australian resident, a body corporate with
activities in Australia, or by the Commonwealth or a State or
Territory (clause 41).
Subclause 40(1) provides that
if a complaint regarding live content is accompanied by a recording
of the live content, or part thereof, the making of the recording
and the giving of it to ACMA does not infringe copyright. However,
under subclause 40(2), ACMA may override this
provision if it is satisfied that the complaint is frivolous,
vexatious, or not made in good faith; or if the complaint was made
for the purpose of undermining or frustrating the operation of the
content regulation scheme; or if the making of the recording would
contravene a Commonwealth, State or Territory law (other than the
Copyright Act 1968).
Clause 42 provides for the
escalation of complaints made under an industry code, so long as
the complaint meets the requirements of subclauses 37 (1), (2) or
(3) or 38 (1) or (2); and the complaint is referred to ACMA under
the industry code; meaning that the consumer does not need to go
through the process of making the complaint again.
Under clause 43, ACMA must
investigate a complaint made under Division 1 (outlined above), and
notify the complainant of the result. However, ACMA may choose not
to investigate a complaint if it is satisfied that:
- it is frivolous, vexatious or not made in good faith
- it was made for the purpose of frustrating or undermining the
content regulation scheme, or
- a complaint has been, or could have been, made under an
industry code or standard as outlined in Part 4 of the Bill.
ACMA may also launch its own investigations,
with clause 44 setting out the matters which it
may investigate.
Clause 45 gives ACMA wide
ranging power to conduct investigations as the ACMA thinks fit ,
including the power to obtain information from such persons, and
make such inquiries, as it thinks fit. These powers are in addition
to those provided to ACMA under Part 13 of the BSA, which include
the power to call for submissions, call for persons to attend a
hearing or provide documents, conduct hearings in private, and make
reports.
Clause 46 provides protection
against civil proceedings for any person because they make a
complaint under Division 1, or a statement to ACMA, or providing a
document to ACMA, for the purposes of an investigation.
This part of the Bill gives ACMA the power to
issue hosting services with a take-down notice ,
directing them to remove material that has been judged to be
prohibited content (subclause 47(1)). The
provisions throughout the Bill only relate to hosting services with
an Australian connection . Clause 3 provides that
a hosting service has an Australian connection if and only if:
any of the content hosted by the hosting service
is hosted in Australia.
In relation to potential prohibited content,
ACMA is given authority to make a judgement that if the material in
question were to be classified by the Classification Board, there
is a substantial likelihood that it would be classified as RC or X
18+; or category 2 restricted (clause 47(2)); or R18+ or MA15+
(subclause 47(3)) (see explanations above). If
ACMA makes such a judgement, it must issue the hosting service with
an interim take-down notice , to apply until the
Classification Board has given the content a classification.
If the Classification Board finds that the
material does constitute prohibited content, ACMA must then issue
the hosting service with a final take-down notice
(subclause. 47(4)). This decision may be reviewed
by the Administrative Appeals Tribunal (AAT) (see Part 8 of the
Bill Review of Decisions).
For the lower classifications of R18+ or
MA15+; host providers may continue to provide the service so long
as it is subject to a restricted access system which is approved by
ACMA (subclause 47(7)).
If a hosting service voluntarily ceases to
host content that is subject to an interim take-down order, ACMA
may accept their undertaking not to host the content, revoke the
interim take-down order, and tell the Classification Board that
classification of the material is not necessary (clause
48).
If, after review, the Classification Board
reclassifies content that is subject to a final take-down notice,
and thus it ceases to be prohibited content, ACMA must revoke the
final take-down notice, and write to the service provider
accordingly (clauses 49-51).
Clause 52 provides
anti-avoidance measures via the use of special take-down
notices . If an interim or final take-down notice is in
place for particular content, and ACMA is satisfied that the
hosting service is hosting, or intending to host, content that is
the same as, or substantially similar to, the prohibited content,
then ACMA may issue a special take-down notice directing the
service provider to take down the material as in the earlier
provisions of the Bill. These special take-down notices apply at
any time when an interim or final take-down notice is in force.
Interim take-down notices, final take-down
notices, and special take-down notices must all be implemented as
soon as practicable, or by 6pm on the next business day after the
notice was given to the service provider (clause
53).
This section of the Bill outlines procedures
for removal of prohibited or potential prohibited content for live
content services. The procedures are largely the same as those
outlined above for non-live content. For live content, the ACMA
notices are termed final or interim
service-cessation notice
For potential prohibited content, ACMA must
have a recording of the content, or a copy of such a recording, and
provide this to the Classification Board for classification
(subclause 56(2) and (3).
If, during an investigation in which ACMA is
satisfied that live content is prohibited content, or potential
prohibited content, the service provider gives ACMA a written
undertaking to cease providing the live content, ACMA may accept
this and is not legislatively required to continue on with an
interim or final service-cessation notice (clause.
57). Such a provision is not available to the ACMA in
cases of non-live content.
The revocation and AAT review procedures for
service-cessation notices are essentially the same as for non-live
content, as outlined above.
There is no anti-avoidance clause for live
services, as there are for non-live and link services
(clauses 52 and 67).
Again, the procedures in this part of the Bill
are largely similar to those outlined above. If ACMA believes that
end-users in Australia can access prohibited or potential
prohibited content using a link provided by a links service with an
Australian connection, then it will issue the links service
provider with an interim or final
link-deletion notice .
Links providers may voluntarily delete the
link, prior to the issue of a final link-deletion notice, in which
case ACMA can advise the Classification Board not to proceed with
the classification (clause 63). Revocation and AAT
review procedures for link-deletion notices are as outlined
above.
Under Division 6 of new Schedule 7 to the BSA,
if during the course of an investigation ACMA is satisfied that
content is prohibited or potential prohibited content, and it is of
a sufficiently serious nature to warrant referral to a law
enforcement agency, then ACMA must notify the content to the
Australian Federal Police (AFP), or another person or body if there
is an agreement to do so between ACMA and an Australian police
force.
Clauses 70-72 provide for the
deferral of action by ACMA in relation to hosting services, live
content services and links services, if a member of an Australian
police force satisfies ACMA that the taking of action should be
deferred for a particular period, in order to avoid prejudicing a
criminal investigation. The Explanatory Memorandum points to an
example of where this may occur:
In cases of extreme concern, for example
paedophiles providing illegal material or exploitation of children
though the use of online services, it is possible that a police
investigation may be concurrent with a complaint to the ACMA about
particular material. The public nature of the ACMA complaints and
investigations process proposed in the Bill could prejudice a
police investigation in these circumstances.
As a safeguard, therefore, it is proposed to give
ACMA discretion to defer action where a member of the Federal,
State or Territory policy satisfies the ACMA that an investigation
should be deferred for a specified period.(48)
Under this Part:
- Division 1 provides a simplified outline of the Part
- Division 2 provides, for the purposes of the part,
interpretation of the terms: industry code, industry standard,
content activity, section of the content industry, participant of
the content industry and designated body. For the purposes of the
Part:
- Industry code a code developed under the Part
- Industry standard a standard determined under the Part
- Content activity an activity that consists of providing a
hosting service, live content service or commercial content service
that has an Australian connection
- Section of the content industry hosting services providers,
live content providers, links service providers and commercial
content providers with an Australian connection
- Participant of the content industry member of a group that
constitutes a section of the content industry
- Designated body a body declared as such for the purposes of the
Part.
- Division 3 states regulatory policy.
Clause 80 states that
sections of the content industry should develop codes to apply to
industry participants. ACMA should make reasonable efforts to
ensure the codes and standards are registered.
Clause 81 states the matters
that industry codes and standards should deal with, either
individually or jointly with regards to providing content. Trained
content assessors are to be engaged to ensure that content (both
stored and live) that has not been classified by the Classification
Board or content that would be likely to be classified by the
Classification Board as RC, X18+, R18+ or Ma 15+ is not to be
provided by commercial content service providers.
Clause 82 sets out examples
of matters that may be dealt with by industry codes and standards.
These relate to a person s right to complain, assistance to be
given to assist people to complain person s to complain and
procedures to be followed to deal with complaints.
The clause also deals with referral of
complaints to ACMA if complainants are dissatisfied with the way
with which complaints are handled and procedures that should be
initiated if prohibited content is delivered to or made available
for access by end users of commercial content service
providers.
Other matters that may be dealt with under
industry codes and standards are: information, advice and
procedures to be used in dealing with safety issues in relation to
chat services, procedures to inform producers of content about
legal responsibilities and record keeping requirements.
Division 4 deals with the registration of
industry codes. Clause 85 applies if a body or
association develops a code. The code is to be developed after
consultation with the public and the industry and after
consideration has been given to the views expressed by these
groups. The code is to deal with matters of substantial relevance
to the community. ACMA must register the code by including it in
the Register of industry codes under Clause 101.
Under clause 86 ACMA may
request a body or association to develop an industry code if it is
satisfied that development of the code:
- is necessary to provide appropriate community safeguards
- is necessary to deal with the performance or conduct of
participants in a particular section of the industry, or
- if it is unlikely an industry code would be developed within a
reasonable period.
If a code is contravened ACMA may direct
participants in the industry in writing to comply. This provides an
incentive for self-regulation.
Under clauses 91 and 92 ACMA
may determine an industry standard by legislative instrument if a
request to a body or association for an industry code is not
complied with. ACMA must consult with the particular body before
determining the standard. ACMA may also determine an industry
standard if it is satisfied there is no representative body or
association for a section of the industry.
ACMA may determine industry standards if it is
satisfied that a registered industry code is wholly or partially
deficient and if it has given notice requesting that deficiencies
in the code are remedied and if this has not been done within a
specified period (clauses 93 and 94). In
determining the standard ACMA must consult the industry body or
association. In the case of a total failure of a code, the existing
code ceases to apply when the industry standard comes in to force.
In the case of a partial failure of a code the industry code has no
effect, only to the extent to which it deals with the deficient
matter or matters when the industry standard comes into force.
ACMA is required under clause
96 to give formal warning if persons contravene industry
standards. It may vary or revoke standards if it is satisfied it is
necessary to do so to ensure appropriate community standards and
adequate regulation. Before determining or varying a standard ACMA
must consult with the public and the designated industry body.
Under clause 101 ACMA is
required to maintain a Register which includes all industry codes
and industry standards.
Part 5 allows ACMA to make rules that apply to
designated content/hosting service providers, via legislative
instrument. These determinations will only have effect to the
extent that they are authorised by the following sections of the
Constitution:
- paragraph 51(v), either alone or when read together with
paragraph 51(xxxix), or
- section 122 if it would have been authorised by paragraph 51(v)
(either alone or when read together with paragraph 51(xxxix)) if
section 51 of the Constitution extended to the Territories.
Paragraph 51(v) of the Constitution gives the
Parliament the power to make laws in respect to postal,
telegraphic, telephonic and other like services. Paragraph
51(xxxix) relates to the Parliament s power to make laws with
respect to matters incidental to the execution of any power vested
in the Constitution. Section 122 gives the Parliament the power to
make laws in relation to the Territories.
The determinations must relate to a matter
specified in the BSA Regulations (subclause
104(4)). The determinations may empower ACMA to make
decisions of an administrative character (subclause
104(5)).
The Minister may, via legislative instrument,
exempt a specified content/service hosting provider from all
determinations, or specified determinations (subclauses
105(1) and (2)). The determinations may be conditional or
unconditional (subclause 105(3)).
Part 6 to new Schedule 7 of the
BSA creates offences for contravention of the rules set
out throughout Bill.
Clause 106 provides that a
person who is a designated content/hosting service provider whose
conduct contravenes a rule set out in new Schedule 7 to the BSA
will be liable for a penalty of 100 penalty units. Each day the
contravention continues is counted as a separate offence
(subclause 106(2)).
Under the Crimes Act 1914, a penalty
unit currently stands at $110. Therefore, a service provider will
face a fine of $11,000 per day for contravention of a rule under
the Act (for example, failure to remove content subject to a final
take-down notice).
Clause 107 creates a civil
liability for contravention of the rules by a designated
content/hosting service provider. Under subclause
107(3) a separate contravention is taken to have occurred
for each day during which the contravention continues.
Clause 108 allows ACMA, if
they are satisfied that a content/hosting service provider has
contravened, or is contravening, a rule which applies to them, to
issue the content/hosting service provider with written directions
to take remedial action towards ensuring that they do not
contravene a rule. These may include, for example:
- a direction that the provider must implement effective
administration systems for monitoring compliance, or
- a direction that the provider educate their staff regarding the
requirements of the Act, in so far as they affect the staff.
If a person contravenes an ACMA remedial
direction, they are liable for a penalty of up to 100 penalty
units, counted for each day of the contravention. Civil penalties
may also apply (subclauses 108(6-8)).
ACMA may issue formal warnings to a person if
they are satisfied that the person has, or is, contravening the
rule that applies to them (clause 109).
If, in the event that the above measures fail
to prevent a contravention, then ACMA may apply to the Federal
Court for an order that the person cease providing the contravening
content/hosting service (clause 110).
Clause 111 provides
protection from civil proceedings for hosting providers, live
service providers or links providers, if they are complying with
take-down, service-cessation, or link-deletion notices provided for
under the Act.
Clause 112 provides
protection from criminal proceedings for ACMA, its members or
associate members, staff and consultants, members of the
Classification Board and Classification Review Board and
staff/consultants, and officers made available to the
Classification Board, in respect of collection, possession,
distribution, delivery, or copying of content or material; or the
doing of any other thing in relation to content or material in
connection with the exercise of their powers and functions under
the Act. The Explanatory Memorandum states:
In effect, immunity will be granted with respect
to a prosecution that may otherwise arise in relation to offensive
content or material (ie, material that has been classified RC or
X18+). This amendment is necessary to enable the various regulators
to effectively perform their statutory functions under this
Schedule.(49)
As outlined above, content/hosting service
providers may apply to the AAT for review of ACMA decisions in
relation to content services, live services, links services,
registration of industry codes, directions, determinations and
remedial directions.
Clause 114 gives ACMA some
additional functions for the purposes of Schedule 7 to the BSA. The
general effect of these is to widen ACMA s overview of the content
services industry, and provide for education and awareness
campaigns for children and parents in relation to content
services.
Clause 118 provides for a
review within three years of the commencement of Schedule 7. The
review, to be tabled in Parliament, will cover the operation of the
new Schedule, and whether it should be amended or repealed.
This would seem a good idea given the rapid
pace of technological development in content services, and some of
the concerns raised regarding the classification of content.
This part of the Bill provides general
application and transitional provisions.
This part provides some special transitional
provisions:
- Item 106 provides that the Director of the
Classification Board may develop and approve training to be
provided for people to become a trained content assessor as
required by Clause 18 in Schedule 7 to the BSA, prior to the
Schedule coming into operation. The 12 months within which the
training must have occurred, may also begin prior to the Schedule
coming into operation.
- Item 107 allows for industry codes, as
required under Part 4 of Schedule 7 to the BSA, to be developed
before that Schedule has come into operation. ACMA or any other
person, body or association may exercise a power conferred by, or
do anything under, Division 4 of Part 4 of Schedule 7, as if it had
already come into operation.
- However, any codes developed and registered prior to the
Schedule s operation will only come into effect when the Schedule
comes into operation (item 107(4)).
Schedule 2, Parts 1-2 makes minor amendments
to the BSA and amendments and transitional provisions to the
Telecommunications Act 1997 and the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
Schedule 3 to the Bill amends the definition
of Australia within the Telecommunications (Consumer Protection
and Service Standards) Act 1999. Sections 158P(10) and 158T(7)
will be amended to state that Australia includes an external
Territory prescribed for the purposes of section 10 of the
Telecommunications Act 1997. Under this Act, Australia
includes the Territory of Christmas Island and the Territory of
Cocos (Keeling) Islands but not any other external Territory that
may in the future be prescribed for the purposes of s. 10 of the
Telecommunications Act.
This will ensure that the proposed Regional
Telecommunications Independent Review Committee must review the
adequacy of telecommunications services in the above two remote
Territories.
In the scheme to be set out in Schedule 7 to
the BSA, the government has opted for a co-regulatory approach for
content services delivered over convergent devices. The Bill was
developed in response to concerns about the dangers posed to
children from inappropriate content on mobile phone and other
technologies, and the limited opportunities there may be for
parents to supervise such access.
Early indications from industry groups are
that they are happy with the co-regulatory approach, as has been
implemented with the Mobile Premium Services Industry
(MPSI) Scheme, approved by ACMA in October 2006. As part of
its regulatory role, ACMA gains an own-motion investigative power
for a range of matters listed in the Bill. Further indication of
industry and other views may be obtained via submissions and
evidence to the
Senate Committee inquiry into the Bill (forthcoming).
The Big Brother incident in 2006 was notable
in that the content was re-transmitted on a number of different
mediums, such as YouTube, MySpace, mobile phones etc. The impact of
this Bill on such a phenomenon is yet unclear. However, the
original transmitter of the material may be fined. This
multi-transmission phenomenon warrants the proposed review, within
three years, of the effectiveness of the new regulatory regime for
content services on convergent devices, as provided by the
Bill.
- SMH Online. Figure
in December 2006: http://blogs.smh.com.au/newsblog/archives/your_say/005027.html
Accessed 16 May 2007.
- Childnet,
Children and mobile phones: An Agenda for Action, June
2004. http://www.childnet-int.org/downloads/CMPAAA_A4.pdf
Accessed 14 May 2007.
- D. Batty and J.
McCurry, Children to be shielded from abuse via mobiles , The
Guardian, January 2004. at
http://www.ippr.org/uploadedFiles/research/projects/Digital_Society/child_safety_background.pdf
Accessed 15 May 2007.
- BECTA, The safety
implications of mobile phones,
http://schools.becta.org.uk/index.php?section=lv&catcode=ss_lv_com_02&rid=12897
Accessed 15 May 2007.
- ibid.
- Childnet,
op.cit.
- See
http://www.imcb.org.uk/assets/documents/10000109Codeofpractice.pdf
Accessed 15 May 2007
- European Internet
Coregulation Network (EICN), Protecting minors from exposure to
harmful content on mobile phones , http://network.foruminternet.org/article.php3?id_article=24
Accessed 15 May 2007.
- For the purpose of
this Digest the term ACMA refers to the current industry regulator
and its previous iterations.
- The Australian
Content Standard requires all commercial free-to-air television
licensees to broadcast an annual minimum transmission quota of 55
per cent Australian programming between 6 am and midnight. In
addition there are specific minimum annual sub-quotas for
Australian (adult) drama, documentary and children s programs. See:
http://www.aba.gov.au/contentreg/codes/television/documents/ACS2004Fulltext.pdf.
Children s television standards are at:
http://www.acma.gov.au/WEBWR/aba/tv/content/requirements/Australian/Children's%20Television%20Standards%202005.pdf.
- See ACMA website:
http://www.acma.gov.au/WEB/STANDARD//pc=IND_CONTENT_OVIEW
Accessed 16 May 2007.
- SSCCS, Report on
Video and Computer Games and Classification Issues, October
1993
- Joint Media Release,
National framework for on-line content regulation, 15 July
1997.
- See Bills Digest at
http://www.aph.gov.au/library/pubs/bd/1998-99/99bd179.htm
Accessed 17 May 2007.
- See
http://www.acma.gov.au/webwr/aba/contentreg/codes/internet/documents/iia_code.pdf
Accessed 17 May 2007.
- Website is at
http://www.cybersmartkids.com.au/
Accessed 17 May 2007.
- See
http://www.dcita.gov.au/__data/assets/pdf_file/10920/Online_Content_Review_Report.pdf
Accessed 18 May 2007.
- See
http://www.dialogue.net/pdf/mobile_premium_services_determination_29june05.pdf,
Accessed 18 May 2007.
- P. Dockrill, Big
Brother turkey slap controversy threatens net freedom ,
http://apcmag.com/3797/big_brother_turkey_slap_controversy_threatens_net_freedom
accessed 17 May 2007.
- Press release
Minister Coonan:
http://www.minister.dcita.gov.au/media/media_releases/review_of_the_television_code_of_practice_and_the_regulation_of_online_content
Accessed 17 May 2007.
- Explanatory
Memorandum, p. 9.
- See: Report at:
http://www.dcita.gov.au/__data/assets/pdf_file/39890/Final_Convergent_Devices_Report.pdf
Accessed 18 May 2007.
- Explanatory
Memorandum, p.13.
- ibid.
- ibid.
- Office of Film and
Literature Classification, Annual Report for the Classification
Board and the Classification Review Board, 2005 2006, pp. 9
10.
- http://www.oflc.gov.au/special.html?n=250&p=58
Accessed 18 May 2007
- Senate Committee on
the Environment, Communications, Information Technology and the
Arts, inquiry into the Bill, at:
http://www.aph.gov.au/Senate/committee/ecita_ctte/contentservices/index.htm.
- Internet Industry
Association website:
http://www.iia.net.au/index.php?option=com_content&task=view&id=551&Itemid=32,
accessed 18 May 2007.
- ibid.
- ibid.
- AMTA website at
http://www.amta.org.au/default.asp?Page=1191
Accessed 18 May 2007.
- Australian
Consumers' Association Response to: Department of Communications,
Information Technology and the Arts Review of The operation of
Schedule 5 to the Broadcasting Services Act 1992 at:
http://www.dcita.gov.au/__data/assets/word_doc/10893/Issues_Paper_September_2002.doc
Accessed 18 May 2007.
- Submission to the
Commonwealth Department for Communications, Information Technology
and the Arts Protecting consumers against illegal or offensive
content on mobiles at
http://www.dcita.gov.au/__data/assets/file/13207/Young_Media_Australia.rtf
Accessed 18 May 2007.
- P .Jean and J.
Bunce, New Internet laws crack down on adult sites , Canberra
Times, 11 May 2207.
- National platform
and constitution http://www.alp.org.au/platform/chapter_14.php
Accessed 18 May 2007.
- Department of
Communications, Information Technology and the Arts, Portfolio
Budget Statements 2007-08, at:
http://www.dcita.gov.au/__data/assets/pdf_file/67750/2007-08_CITA_PBS_Portfolio.pdf.
- Explanatory
Memorandum, p. 3.
- The definition of
content in clause 2 has the effect that content will be subject to
regulation under Schedule 7 regardless of its form.
- The term used in the
Bill is restricted access system . This is further defined in
clause 14.
- This is further
defined in clause 2.
- There are four
classification categories for publications: Unrestricted,
Unrestricted Mature, Restricted Category 1 Not available to persons
under 18 years, Restricted Category 2 Not available to persons
under 18 years. Publications which contain elements which exceed
the other categories are classified RC. They cannot be legally sold
in Australia.
- Explanatory
Memorandum, p. 53.
- ibid., p. 56.
- ibid., p. 57.
- ibid., p. 58.
- ibid., pp. 13 and
18.
- ibid., p. 80.
- ibid., p. 94.
Bronwen Jaggers and Mary Anne Neilsen
Law and Bills Digest Section
Rhonda Jolly
Social Policy Secion
23 May 2007
Parliamentary Library
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of the Parliamentary Library, nor do they constitute professional
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ISSN 1328-8091
© Commonwealth of Australia 2007
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