CHAPTER 9
Television, radio and recorded music
9.1
A number of important media do not fall within the National
Classification Scheme applying to publications, films and computer games. The
content of media such as television, radio, recorded music and advertising
(including outdoor advertising) are subject to co-regulatory and self-regulatory
arrangements.
9.2
This chapter briefly discusses, at a general level, the advantages and
disadvantages of these types of regulatory mechanisms.
9.3
The chapter addresses term of reference (l), which refers to the
interaction between the National Classification Scheme and the role of the ACMA
in supervising broadcast standards for television. In the context of television
content, the application of the National Classification Scheme to music videos
(term of reference (i)) is also examined.
9.4
There is also discussion of term of reference (j), the effectiveness of
the ARIA/AMRA Labelling Code of Practice for Recorded Music Product Containing
Potentially Offensive Lyrics and/ or Themes' (ARIA/AMRA Labelling Code).
Effectiveness of self-regulation
9.5
The committee received a range of evidence regarding the effectiveness
of industry self-regulation. In general, the industries themselves were in
favour of self-regulation. Broadly, industry groups noted that self-regulatory
schemes provide a degree of flexibility to the industry, while minimising the
burden on government (since most schemes are industry-funded).[1]
9.6
Additionally, industry groups tended to maintain that the standards
applied under their codes of practice reflect community standards and are often
drawn from the two sets of guidelines for classification established by the National
Classification Scheme.[2]
9.7
A number of witnesses, however, questioned the ability of industries to
adequately reflect community standards, particularly noting the proliferation
of sexualised content.[3]
Complaints-based systems
9.8
Most forms of industry self-regulation feature a complaints system
whereby members of the public can make complaints if they feel material has
been inappropriately classified. In the case of industries covered by the Broadcasting
Services Act 1992, the ACMA is able to examine complaints if the industry
itself is not able to provide a remedy that is satisfactory to the complainant.
9.9
The complaints system provides a mechanism by which consumers, and
potentially the ACMA, can have input into classification decisions and
providing feedback to the industry.
9.10
Nevertheless, the committee received substantial evidence of community
dissatisfaction with the various complaints systems. The committee heard that
many consumers are unaware of the existence of a complaints process, or how to
go about making a complaint.[4]
Additionally, as complaints can only be made once material has been placed in
the public domain, objectionable material may remain in public for some time
before any action is taken.[5]
Television
9.11
Under its broadcasting power,[6]
the Commonwealth regulates content on television and radio broadcasts through
the Broadcasting Services Act 1992.
9.12
Television and radio content is co-regulated by each industry and the ACMA.
The Broadcasting Services Act 1992 provides that radio and television
industry groups are to develop codes of conduct governing the content they can
broadcast, in consultation with the ACMA.[7]
The Broadcasting Services Act 1992 specifies that, in developing these
codes, community attitudes to the following matters are to be taken into
account:
a) the
portrayal in programs of physical and psychological violence;
b) the
portrayal in programs of sexual conduct and nudity;
c) the
use in programs of offensive language;
d) the
portrayal in programs of the use of drugs, including alcohol and tobacco;
e) the
portrayal in programs of matter that is likely to incite or perpetuate hatred
against, or vilifies, any person or group on the basis of ethnicity,
nationality, race, gender, sexual preference, age, religion or physical or
mental disability;
f) such
other matters relating to program content as are of concern to the community.[8]
9.13
The Broadcasting Services Act 1992 requires that industry groups
apply the classification system developed under the Classification Act 1995
in classifying films for broadcast. Additional requirements include the
restriction of the broadcasting of certain classifications to particular times
and the provision of consumer advice.[9]
These codes of practice are then registered with the ACMA.[10]
9.14
The Commercial Television Code of Practice, developed under the
provisions of the Broadcasting Services Act 1992 by the industry,
regulates content on commercial free-to-air television.[11]
Subscription television is subject to codes of practice developed by the
Australian Subscription Television and Radio Association (ASTRA).[12]
The Australian Broadcasting Corporation (ABC) and Special Broadcasting Service
(SBS) each have a code of practice as provided for in their respective
establishing legislation.[13]
The ACMA is notified of the ABC and SBS codes of practice.
9.15
Under the code of practice system, complaints about content are first
made to the broadcaster. If a complainant is dissatisfied with the
broadcaster's response, or the broadcaster fails to respond within 60 days, the
complaint may be referred to the ACMA.[14]
9.16
Table 9.1 sets out the classifications adopted by the television
industry participants under their respective codes of practice. Each code of
practice specifies times when particular content can be shown. For example, MA
and MA15+ material can typically only be shown after 9:00 pm or 9:30 pm,
depending on the broadcaster.
Table 9.1: Television
classifications
ABC |
G, PG, M, MA15+[15] |
SBS |
G, PG, M, MA15+, MAV15+
[strong violence][16] |
Commercial TV |
P [Preschool], C
[Children], G, PG, M, MA, AV [Adult Violence][17] |
Community TV |
G, PG, M, MA |
Pay TV and Open Narrowcast TV |
G, PG, M, MA15+, R18+[18] |
9.17
In addition to the codes of practice, the Broadcasting Services Act 1992
requires the ACMA to determine standards for programs for children for
commercial television broadcasters.[19]
9.18
The Children's Television Standards (CTS) requires networks to broadcast
390 hours of programming per year specifically for school-aged children and
preschoolers, denoted by the P (Preschool) and C (Children) classification (as shown
in the table above). This programming must be provided at certain times of the day
as prescribed by the CTS.[20]
9.19
Only programming which has been cleared and certified by the ACMA can be
'counted' toward the CTS quota. The programming must be suitable for viewing by
children and must be specifically designed with their educational and emotional
needs in mind. It must also comply with prescriptions with respect to
depictions of gender, race and unsafe behaviour.[21]
9.20
Television broadcasters generally need to include consumer advice with
their broadcasts. For example, stations operating under the Commercial
Television Industry Code of Practice must provide consumer advice for all
MA-rated and AV-rated programs, M-rated films and short series, and all
PG-rated films. In addition, PG-rated programs broadcast within certain times
may be required to be accompanied by consumer advice.[22]
9.21
The Subscription Broadcast Television and Subscription Narrowcast Television
codes of practice outline the requirements for classification of content
broadcast by those services.[23]
Unlike the free-to-air broadcast codes, there are no requirements for the
limitation of content to certain time zones, although classification symbols
and consumer advice must be clearly displayed at the commencement of each
program.[24]
Material rated R18+ can only be broadcast by a subscription narrowcast service,
and only where access to that material is restricted.[25]
Effectiveness of television codes
of practice
9.22
The committee received a number of submissions criticising the ACMA's
role in the supervision of television standards (term of reference (l)). For
example, FamilyVoice Australia cautioned that, even where the ACMA investigates
breaches of the code under present arrangements, there are no significant
penalties imposed:
We feel that when there has been a breach of the guidelines,
for example, with TV stations, nothing is done to the TV station as a result.
There is no punishment. For example, only the other week, after six months, a
complaint of mine was upheld by the Australian Communications and Media
Authority about the wrong classification of an ABC program. I believed that it
was wrongly classified M and [the] ACMA agreed with me, but nothing has
happened as a result. There has been no apology to me from the ABC, and there
has been no reprimand by [the] ACMA. There was not even a media release. If
there is no punishment, why have the guidelines?[26]
9.23
In answer to a question on notice, however, the ABC acknowledged that
the particular program had been incorrectly classified by the ABC:
The ABC has reclassified this episode...as MA15+ for future
broadcasts. [The] ACMA's report on the breach decision has been circulated to
ABC TV Management and to Classifiers.[27]
9.24
Broadcast industry television participants were of the view that
co-regulation is effective. Free TV Australia submitted:
Compliance with both the Code and the [Children's Television Standard
(CTS)] are licence conditions of the commercial broadcast networks which are
enforced by the ACMA. The ACMA has extensive powers to investigate complaints
regarding non-compliance and apply penalties for breaches as appropriate. The
Code is regularly reviewed to ensure it accords with prevailing community
standards.[28]
9.25
Free TV Australia also noted that, relative to the amount of content
broadcast each year, the industry receives very few complaints:
This system of regulation, which is underpinned by a robust
complaints handling process which applies across the Code of Practice, the CTS
and the AANA Codes, is working well. This is evidenced by the fact that there
is a very low level of complaint about programming content (including
advertisements), even though commercial free-to-air broadcasters are transmitting
content twenty-four hours a day, three hundred and sixty five days a year
across nine channels.[29]
9.26
SBS also noted that it receives few complaints. By way of example, SBS
informed the committee that, since 2005, it had received 246 complaints, of
which 15 were appealed to the ACMA. Only two of these were upheld.[30]
9.27
However, the Australian Christian Lobby (ACL) objected to the use of
complaint statistics as evidence of the underlying community sentiment:
ACL believes that it is problematic to measure community
standards by the number of complaints generated by a particular broadcast or
telecast. It would come as news to a great number of people within the
community to learn that their view of the contemporary media environment was
judged solely on their formally complaining to the relevant authorities. With
so many complaints in the largely co‐regulatory
and self‐regulated
media environment being rejected, the centrality of complaint processes in the
regulation of content is a frustration for viewers and listeners, who come to
feel the system is weighted against them.[31]
9.28
The potential for inconsistency in classification decision-making
between the co-regulatory scheme for television, as supervised by the ACMA, and
the Classification Board, was also an issue raised with the committee.
9.29
In this context, the committee received a substantial submission from
Mr David Tennant, which focussed on the ABC's classification procedures,
and a 'history of classification standards which are inconsistent with
the...Classification Board'.[32]
9.30
The ABC defended its ability to effectively classify broadcast
television in line with community standards, noting the professionalism of its
assessors. Mr Michael Brealey from the ABC asserted:
For the ABC we spend a lot of time and effort in getting it
right. We have over 120 pages of editorial policy, a code, guidelines and
in-house classification. With the actual practical implication...we look at
programs quite differently. So we do not look at the whole set. We will look at
individual programs in a series and we need to be able to assess each of those
programs to decide what its classification should be. If it needs to change, we
have the ability to edit and that is quite important. We are not looking at the
whole set; we are looking at individual—and aside from that, we have in-house
classifiers and that is their job, their bread and butter. They are
professional people and they do it as their job. They have the corporate knowledge
and the expertise to do it as well as anyone else.[33]
Digital television and online
delivery of broadcast television
9.31
As noted in the previous chapter, the digitisation of media has resulted
in a convergence of content accessible from multiple platforms. This includes
the rise of internet-based television channels, many of which are run by
traditional television broadcasters to supplement free-to-air services.
Internet services such as the ABC's iView, as well as others maintained by
commercial free-to-air broadcasters, allow consumers to access programs on demand,
and as such do not adhere to time zones for particular ratings agreed to under
the various television codes of practice.
9.32
Additionally, new digital television sets are capable of connecting
directly to the internet, allowing certain online services to be viewed in a
manner which mimics traditional broadcast television. It is unclear how
existing television codes of practice relate to these new forms of content
delivery. In its submission, Free TV Australia drew attention to this issue:
Free TV strongly endorses the application of equal regulation
to all players. Due largely to the time zone system set out above, there is
currently a significant gap between the regulations that apply to content
provided on commercial free-to-air television and that on comparable platforms,
such as pay television and IPTV [Internet Protocol Television], with far more
restriction applied to free-to-air television. This creates a complex and
confusing system for viewers, most of whom will be unaware that different
standards apply to different platforms. Free TV therefore urges standardisation
of classification regulation across all platforms.[34]
9.33
Ms Julie Flynn of Free TV Australia elaborated on this further:
Increasingly now TVs are connected TVs. That means they have
an Ethernet port...There is any variety of TVs and, in the future, you will be
getting content across multiple platforms and on multiple devices and
increasingly, unless we come up with a more consistent approach to working out
what we want to regulate and how we want to regulate it, we will find that
people will be accessing different forms of content in different ways, and the
same piece of content will be regulated differently depending on which platform
or device it occurs on.[35]
9.34
The committee notes that these new developments undermine existing
methods by which television content is regulated.
Different treatment for recorded
and broadcast music videos
9.35
Term of reference (i) refers to the application of the National
Classification Scheme to music videos. For this reason, the committee focussed
on the treatment of music videos in the context of television regulation.
9.36
Music videos are subject to different forms of classification depending
upon the means by which they are distributed. If released on DVD or similar
recorded form, a music video is technically a film and is subject to
classification under the National Classification Scheme. Music videos broadcast
on television, however, are instead subject to industry codes of practice under
the Broadcasting Services Act 1992.
9.37
The majority of evidence about music videos related to their broadcast
on free-to-air television and, to a lesser extent, subscription television.
9.38
The committee questioned the Attorney-General's Department (Department)
about the different mechanisms used to classify a music video released on DVD
versus the same content broadcast on television, noting the apparent
inconsistent treatment. In response, an officer from the Department stated:
In relation to something that is not sold through a store but
broadcast on television, the decision about what is appropriate still refers
back to the [National Classification Scheme]. The timing of when there might be
some regulatory intervention might change, in the sense that, as my colleagues
from [the] ACMA were saying, the first classification assessment would have
been done by the industry regulators under their code. But that is not
something they do stand-alone. There is interaction between the [Classification]
[B]oard and industry regulators in terms of training and consistency of
decision making. Then there is the capacity for complaints. As I understand it,
if [the] ACMA receives a complaint, it is obliged to act on it and follow it
through.
There are different entities, but that is because there are
different media through which the material is being viewed, but all are trying
to achieve consistency under the one national scheme or arrangement...[I]n
terms of the scheme and the decisions that are made under it, there is a
consistency of approach.[36]
9.39
The officer described the classification mechanism for television as a 'two
step arrangement with the industry', featuring self-classification by the
industry, with the recourse to complaints and a formal assessment by the ACMA.[37]
Music videos and community
standards
9.40
The committee received a range of evidence highlighting community
concern about music videos on television. As ACL noted, a substantial number of
music videos are broadcast on weekend mornings.[38]
9.41
Mr Gavin Rosser expressed to the committee his dismay that overtly
sexual music clips are played during prime viewing times for children:
Twice recently I have been appalled by the overtly sexual
nature of music video clips. The first time was watching TV on Saturday morning
with my kids (the oldest was about six at this time). We don't usually watch
music video clips, but thought it would be fun to boogie around the lounge to
some good upbeat music. Unfortunately the first clip was too explicit for my
young children to watch, so I turned it off and turned it on a bit later. Over
a period of about five songs only one or two were appropriate for that age
group. The remainder were drenched in aural and visual sexual references,
innuendo, sexual dancing, sexual thrusting etc. We haven't tried to watch video
clips since.[39]
9.42
Media Standards Australia (MSA) shared Mr Rosser's concerns:
Increasing numbers of parents have expressed their grave
concerns to MSA, with regard to the sexual content, explicit lyrics,
(particularly with regard to the dancing – including sexually-provocative
gyrations), and sometimes even the violence contained in many music videos.
This is particularly worrying in regard to Saturday and Sunday morning video
clips programmes on television (Rage on ABC and Video Hits on Ten), since these
are largely unsupervised timeslots in most households.[40]
9.43
ACL referred to the findings of the Senate Environment, Communications
and the Arts Committee's (ECA Committee) 2008 inquiry into the sexualisation of
children in the contemporary media environment. That committee's report
recommended that 'broadcasters review their classification of music videos
specifically with regard to sexualising imagery'.[41]
ACL noted that since that inquiry:
[O]ne of Kylie Minogue's former producers declared publicly
that, "The music industry has gone too far" in its sexualised
content, and "Ninety‐nine
per cent of the charts is R 'n B and 99 per cent of that is soft
pornography".[42]
9.44
Professor Elizabeth Handsley of the Australian Council on Children and
the Media was of the opinion that the government response to the
recommendations of the ECA Committee was lacking:
When the government came out with its statement in response
to the Senate committee's report, it came out on that particular recommendation
with pretty much the same words that the industry had started with, that is,
that there had not been any complaints and therefore there was no community
concern about it. We were deeply concerned by that response from the
government, I am sorry to say. We thought that showed a lack of engagement with
that particular issue and a lack of engagement with the Senate process that had
concluded there was community concern, something did need to be done, and they
just basically overlooked that, which was very disappointing. The postscript to
that is that the television industry has subsequently reviewed its code, made a
number of changes, but has not changed one word in relation to the
classification of video clips. So, we were very disappointed about that.[43]
9.45
The sexual nature of many music videos played in G and PG viewing times
may contribute to the sexualisation of children. The level of sexual content in
music videos also led ACL to conclude that current self–classification system
for television broadcasters has failed. ACL called for the ACMA to conduct a review
of the classification of music videos:
Obviously music videos are a particular class of media for
which several people have identified an issue involved with the sexualisation
of society. ACL's recommendation is not as strong as getting those music videos
classified externally beyond the broadcasters; it is for the ACMA to conduct a
specific investigation into the classification of music videos to ensure that
the television industry is actually applying industry standards appropriately.
Unless the television industry itself is willing to self-regulate the content
that it is willing to broadcast in often PG-rated music video programs, then
there is obviously a need for additional red tape, if that is what it is to be
called.[44]
9.46
In contrast, Free TV Australia supported the ability of the commercial
broadcasters to effectively self-classify broadcast content, noting that, in
the case of music videos, all are viewed by the network's classifiers to ensure
that they are appropriate for the relevant classification time zone (usually G
or PG). Any video found to be unsuitable is either edited before broadcast or
not included in the program.[45]
In addition, Free TV Australia submitted:
For G classified programs networks take extra steps to ensure
the videos are very mild in impact and safe for children to watch without adult
supervision, as required by the Code of Practice. For a PG program, the
networks apply the Code at the lower end of the PG classification requirements
as they are mindful that younger viewers could be watching these programs.[46]
9.47
Free TV Australia noted that the ACMA has never upheld any complaints
about music videos being broadcast in inappropriate time zones:
[O]f the more than 1500 submissions that Free TV received as
part of its most recent review of the Commercial Television Code, only 5 argued
for additional classification laws with respect to music videos.[47]
9.48
Free TV Australia also noted that the introduction of digital television
would further improve the ability of parents to control access to inappropriate
content:
As of 4 February 2011, a Parental Lock mechanism must be
embedded in all equipment designed to receive digital television, allowing
parents to limit the content their children can access based on the
classification information provided by the broadcaster. Parents are able to use
these locks to definitively control what television their children may view.[48]
9.49
While subscription television is not limited to certain time zones in
the same manner as free-to-air television, the technology used also allows
parents to exercise control over access by other members of the household. As
Ms Petra Buchanan of ASTRA explained:
We strongly believe in information, so ensuring that
classification comes up at the commencement of any program, that there is
detail about that on the electronic program guides as well as in printed
guides, so information to make sure that every consumer is the most savvy in
terms of monitoring and managing that. Then there is the technology overlay so
that they can put that into practice to protect members of the household or
however they would like to manage the viewing.[49]
9.50
In addition, Ms Buchanan noted that subscription television services
involve a direct reciprocal relationship with a subscriber, as opposed to the
unrestricted audience of a free-to-air broadcaster:
[I]n a sense they are very different business models in terms
of how and why they exist. We obviously have a very direct reciprocal
relationship with a subscriber who, in some instances, may be purchasing it
because they want to get those music channels and they want to know that they
can have them on all day long whenever they want to see that content and
product. Whereas, obviously, more generalised services like the commercial and
the national broadcasters have the whole of the viewing audience to account
for.[50]
Classification of music videos
under the National Classification Scheme
9.51
The committee heard that, even in cases where music videos are
classified in accordance with the Guidelines for the Classification of Films
and Computer Games, as is generally the case under broadcasting codes of
practice, there remains a risk of overly sexual content within the G and PG
ratings. Speaking about the classification of music videos by the
Classification Board, FamilyVoice Australia noted:
Classification guidelines for films, in dealing with the
element of sex, perhaps fail to take into account fully the issue of 'sexualised
imagery' and action. Dancers in a music video do not normally engage in or even
explicitly simulate sexual acts. However, the overall nature of the video can
be highly sexualised. Because music is such a powerful influence on children
parents are rightly concerned about the overall impact of repeated viewing of
such material by younger children.[51]
9.52
The Australian Council on Children in the Media also argued that the
current classification of film clips using guidelines similar to the National Classification
Scheme does not 'catch' the depictions that cause concern:
Such depictions include partially clad females dancing
erotically, some sadism, violence and degradation, and have an outcome of
involving children in the trappings not just of adult sexuality but of
destructive and exploitative adult sexuality. On the other hand, the present
classification criteria revolve around depictions of nudity, sexual activity
and sexual references. These fail to prevent widespread screening of sexualized
images.[52]
9.53
As a result, submissions and witnesses argued for a significant
tightening of the guidelines used to classify music videos to combat the
sexualisation of children and objectification of women. This subject is
addressed further in Chapter 11.
Case study
9.54
MSA provided the committee with an example of the difficulties in making
a complaint about an objectionable music video.
9.55
The example relates to the screening of the uncut video of the song
'Girls on Film' by Duran Duran, which features some nudity and eroticised
content. Mr Paul Hotchkin from MSA observed the music video playing
at a McDonalds restaurant in Western Australia, apparently as part of the
restaurant's use of the MAX channel, available on subscription television.[53]
Mr Hotchkin described his experience upon attempting to make a complaint:
I immediately sent a letter of complaint by registered
express mail direct to McDonald's head office, with no reply. When we
complained to the store directly, we were told it was company policy to screen
the MAX music video channel.
I then emailed the ACMA, who suggested I contact ASTRA or the
Classification Branch of the Attorney-General's Department. ASTRA said I should
complain to Foxtel, which I did, but I have still had no reply. Someone from the
Classification Branch actually phoned me and said they had no record of any
Duran Duran Girls on Film video that had a rating of higher than PG, which to
me meant they only had a record of the censored version.[54]
9.56
The committee believes that Mr Hotchkin's experience highlights the frustration
held by many members of the public with respect to complaint mechanisms. As Mr
Hotchkin stated:
When we explain to people that there is a complaints process
and explain what steps to take, we never hear from them again—even after we
have asked them to keep us informed of their progress. Even I have personally
experienced the futility of it firsthand. We believe the complaints process is
generally too hard for the public and a lot of complaints are flying under the
radar.[55]
9.57
This led Mr Hotchkin to suggest the establishment of special 'one-stop' independent
complaints department to cover a range of media, in order to simplify the
complaints process.[56]
9.58
The ACMA explained its handling of MSA's complaint:
From the ACMA's reading of the complaint it appeared that MSA
was not so much concerned by the classification of the material that was being
made available in the restaurant as by the availability of the material for
viewing at a venue that is likely to be frequented by children. This is not a
matter that is within the ACMA's jurisdiction for investigation. As a result
the ACMA sent an email response to MSA...advising MSA of this.[57]
Recorded music
9.59
The Australian Recorded Industry Association (ARIA) and the Australian
Music Retailers Association (AMRA) are jointly responsible for the ARIA/AMRA
Recorded Music Labelling Code of Practice (ARIA/AMRA Labelling Code), which
applies to audio-only recordings in various formats.[58]
9.60
The ARIA/AMRA Labelling Code adopts a three-tiered labelling regime:
-
Level 1: 'Warning: Moderate impact—coarse language and/or
themes': for material that contains infrequent aggressive or strong coarse
language; or moderate-impact references to drug use, violence, sexual activity
or themes;
-
Level 2: 'Warning: Strong impact—coarse language and/or themes':
for material that contains frequent aggressive or strong coarse language or
strong-impact references to, or detailed description of, drug use, violence,
sexual activity or themes; and
-
Level 3: 'Restricted: High impact themes—not to be sold to
persons under 18 years': for material that contains graphic description of drug
use, violence, sexual activity or very strong themes, which have a very high
degree of intensity and which are high in impact.[59]
9.61
The ARIA/AMRA Labelling Code requires all products released or sold by
ARIA or AMRA members—whether imported or local—to be labelled if it is
appropriate to do so.[60]
9.62
Recorded material exceeding Level 3 is not permitted to be released
and/or distributed by ARIA members or sold by AMRA members. This includes
recordings containing lyrics which promote, incite, instruct or exploitatively
or gratuitously depict drug abuse, cruelty, suicide, criminal or sexual
violence, child abuse, incest, bestiality or any other revolting or abhorrent
activity in a way that causes outrage or extreme disgust.[61]
The committee was informed that, under the current ARIA/AMRA Labelling Code, no
recordings have ever been included in the 'not to be sold' category.[62]
9.63
The ARIA/AMRA Labelling Code is approved by the Standing Committee of
Attorneys-General (SCAG).[63]
9.64
In 2002, the then Attorney-General, the Hon Daryl Williams AM QC MP,
described the legal status of the ARIA/AMRA Labelling Code as follows:
The guidelines are neither a law nor a by-law...[T]hey exist as
part of the industry-regulated ARIA scheme for labelling audio recordings with
explicit lyrics. The effectiveness of the ARIA scheme is monitored by
Commonwealth, State and Territory Ministers with classification
responsibilities. Ministers have recently required ARIA to amend the ARIA Code
to prohibit the sale to minors of audio recordings carrying the strongest ARIA
warning label...[T]he Classification Act does not provide for the classification
of audio recordings unless they also contain visual material.[64]
9.65
AMRA administers a Complaints Handling Service for handling and
resolving all complaints relating to the classification, labelling and/or sale
of recorded material.[65]
Complaints are resolved by consultation with relevant retailers, either directly,
or through ARIA.[66]
If ARIA or AMRA members fail to cooperate with the scheme, they may be expelled
from their respective organisation.[67]
9.66
The ARIA/AMRA Labelling Code also establishes a Music Ombudsman to
assist members of both AMRA and ARIA mediate any unresolved complaints. The
Music Ombudsman provides an annual report to the Standing Committee of Attorneys-General
on the operation of the ARIA/AMRA Labelling Code.[68]
Effectiveness of the ARIA/AMRA
Labelling Code
9.67
Mr Ian Harvey from AMRA was of the opinion that the ARIA/AMRA Labelling
Code is working well. He noted that, in 2010, 358 of approximately 5,800 recordings
released or sold by ARIA and AMRA carried a warning label.[69]
Additionally, he noted that the complaints service took between five and 10
complaints per annum that required action.[70]
Accordingly:
To date we believe the code has been an effective tool, or as
an effective tool as can be created, to provide consumers with the appropriate
advice regarding the product that they are picking up in stores. The code of
course is aligned to the National Classification Scheme in that our level 1, 2
and 3 labelling regime follows the same criteria and is applied to the extent
that it can given that it is only audio, as the M, MA and R18+ classifications
are applied to film and other media.[71]
9.68
The ARIA/AMRA Labelling Code complaints mechanism is supported by a
Recorded Music Labelling Code Ombudsman. However, in her evidence to the
committee the Ombudsman, Mrs Una Lawrence, noted that it was rare for
complaints to be escalated to her level. In describing her role, Mrs Lawrence
stated:
I really do two things for ARIA and AMRA. I prepare a sort of
overview report of the operation of the whole scheme on an annual basis, and
that is submitted to [the Standing Committee of Attorneys-General]. I also act
as an appeal/complaints review person. In the time in which I have been
involved with the scheme, which is since 2003, only one person has actually
chosen to escalate a complaint to me. So, that has not been a very onerous part
of my role, but on that occasion the complaint was upheld.[72]
9.69
Mr Harvey from AMRA informed the committee that as the ARIA/AMRA Labelling
Code has matured, it has become entrenched in the culture of the industry. This
industry awareness has improved overall compliance. For example, retailers who
receive an unlabelled product that they believe should be labelled often inform
AMRA as a matter of course.[73]
9.70
Mr Harvey also noted that artists themselves are aware of the scheme and
seek to comply with classification standards:
One of the services that we offer is an advisory group within
ARIA and AMRA. On a number of occasions we have been asked to sit to look at a
particular product, and to look at an artist's work. They are concerned that
they might be heading towards the R level restrictions. They do not want to be
restricted, so they have sought some advice on how to effectively tone it down
so that only a level 2 label is applied. The artists do self-censure from time
to time once they actually understand the code themselves. Others, of course,
might see it as a status raising mark to have an R level restricted recording.
It depends on the artist.[74]
Case study
9.71
The submissions of Collective Shout and FamilyVoice Australia both
referred to a song by Cannibal Corpse entitled 'Stripped, Raped and Strangled'
as an example of a recording that is available in Australia under the ARIA/AMRA
Labelling Code, albeit subject to a Level 3 Warning. The song lyrics
graphically describe the serial rape and murder of young women.[75]
Collective Shout argued:
It would be appropriate for the classification of music
lyrics to become part of the national classification scheme with guidelines
which more effectively exclude form release or sale lyrics which celebrate sexual
violence against women.[76]
9.72
ARIA responded to FamilyVoice's submission in relation to the lyrics of
'Stripped, Raped and Strangled' stating:
[T]he fact is that in relation to the particular Cannibal
Corpse release cited by FamilyVoice Australia, this release may not
categorically be refused classification under the [ARIA/AMRA Labelling] Code.
Each release must be reviewed and classified on the basis of the product
supplied to the particular ARIA or AMRA member. In the instance cited, there
was no cover artwork, the lyrics were not reproduced and the vocals are
indecipherable. Based on the product that was supplied for classification it is
difficult to find anything offensive in either of these acts if you are just
listening to the recording or even watching them on YouTube. It is difficult to
be offended when you have no idea of what is being said.[77]
9.73
A Cannibal Corpse album released prior to the introduction of the ARIA/AMRA
Labelling Code featured a lyric sheet as part of the album artwork. As album
artwork is a submittable publication under the National Classification Scheme,
it was assessed by the Classification Board and deemed Refused Classification
because of the printed lyrics. In response, the band redesigned the album
artwork, eliminating the lyric sheet, which was then passed by the
Classification Board.[78]
9.74
Despite the fact that the audio lyrics remain unchanged, the album is
allowed to be sold under the ARIA/AMRA Labelling Code because the lyrics are
unintelligible.[79]
As Mr Harvey explained:
You have to understand that you cannot actually understand
the lyric that is being sung in Cannibal Corpse. It is just vocal noise; you
cannot discern the words, and this is quite important. Importantly therefore,
we cannot actually classify what we cannot understand. It is English, but
absolutely unintelligible.[80]
9.75
Mr Harvey and Mrs Lawrence emphasised to the committee that, despite the
lyrics being available on internet websites, under the terms of the ARIA/AMRA
Labelling Code, audio recordings can only be classified using the material included
with the album itself.[81]
ARIA and AMRA defended the application of the ARIA/AMRA Labelling Code in this
way:
[I]t is procedurally unfair if we...take the view that we
should refuse classification for a particular release on the basis of the
previous releases by an artist. Each release must be reviewed at face value and
each Cannibal Corpse release (or in fact any release by an artist) would be
reviewed and classified in accordance with the principles of the [ARIA/AMRA
Labelling] Code.[82]
9.76
ARIA and AMRA noted that Cannibal Corpse are 'not considered mainstream
artists', have never entered the ARIA top 100 singles or albums chart in
Australia, and 'are not representative of the vast majority of recorded music
in Australia'.[83]
9.77
Aside from extreme cases such as Cannibal Corpse, FamilyVoice Australia
noted that songs by mainstream artists such as Kid Rock, the Pussycat Dolls,
Ludacris and 50 Cent include lyrics that sexualise or degrade women.[84]
9.78
Another example, drawn to the attention of the committee by Salt
Shakers, was the classification of the album 'Loud' by Rihanna. Salt Shakers
noted that three of the songs on the album include sexual references, while
others have specific descriptions of violence.[85]
As Salt Shakers submitted:
To find out what Loud would be rated by the ARIA Labelling
Code of Practice one cannot turn to the ARIA website. The website states the
three levels as Level 1: Moderate, Level 2: Strong, Level 3: Restricted but
does not have a way to see what albums are actually rated.
Even calling up ARIA General Inquiries did not help in
determining the classification of this album.
Loud is available on both Sanity and JB Hi Fi websites for
purchase but neither express any classification whatsoever. Only by physically
looking at the album or, in this case, getting a Sanity employee to observe the
album cover (we phoned the store and the employee couldn't tell us without
going and looking at the album cover and reporting the 'rating' to us) did we
discover that Loud is classified PG for "infrequent moderate coarse
language".[86]
9.79
Salt Shakers and FamilyVoice Australia were therefore in favour of
strengthening the existing code, including the possibility of incorporating
music in the National Classification Scheme.[87]
Online delivery of music
9.80
Another significant issue raised in the context of recorded music was
the increasing prevalence of online music stores. Mr Harvey informed the
committee that the ARIA/AMRA Labelling Code does not apply to online music
stores, creating a gap in classification:
This is the difficult issue for us at both ARIA and AMRA
levels. The two principal suppliers of online digital product into this market
are members of neither organisation. There is no reason for them to be members
of either organisation. Their content is held offshore, it is not domestic,
although one of the companies is an Australian company. BigPond's content is
held in Singapore, as I understand; they use an international provider and they
put a BigPond front end to it. iTunes, of course is a US company and I think
their servers are stored in Canada. We have no leverage with those
organisations to deliver either our code, or probably more pertinently, the National
Classification Scheme.[88]
9.81
Telstra clarified this point for the committee, stating that all of its
media content is streamed from servers in Australia. As such, it complies with
both Schedule 7 of the Broadcasting Services Act 1992 and the
Content Services Code when providing such content.[89]
The committee notes that, while the Content Services Code and AMRA/ARIA Labelling
Code are similar in nature, there may be some discrepancies.
9.82
In regards to iTunes, Mr Harvey informed the committee that iTunes
manages its own classification regime, which includes a warning about explicit
content next to song titles.[90]
9.83
In this context, MSA outlined its concerns about the apparent lack of
regulation applying to online music stores:
Frustration is growing, in many areas, in relation to the
increasing amount of music being downloaded from iTunes and similar services.
No alerts are provided, however, where offensive lyrics are involved, and this
needs to be urgently addressed. Parents are now giving out alerts among their own
networks, but the whole issue is still difficult for them to police in their
own homes.[91]
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