We live in an age of media convergence, where new devices and services are making it possible to access seemingly infinite volumes of media content from around the world. As more media is accessed from the home through high-speed broadband networks, and as people become more empowered to be the creators as well as consumers of content, the need to revise media content regulations for the 21st century has become increasingly apparent.
The Australian Law Reform Commission (ALRC) has completed the first comprehensive review of Australia’s classification scheme for 20 years. The ALRC’s Final Report, Classification – Content Regulation and Convergent Media, recommends fundamental reforms to make the national classification scheme more flexible and adaptive to technological change, while retaining core requirements for certain media content to be accompanied by classification information, based on decisions that reflect community standards.
The ALRC recommends a new Classification of Media Content Act which would apply to all media content, in a ‘platform neutral’ way. This means that media content would be classified in the same way, whether it is screened in cinemas, broadcast on television, sold in retail outlets, provided online, or otherwise distributed to the Australian public.
The volume of media content available to Australians is growing at an exponential rate. There are over one trillion web sites, hundreds of thousands of ‘apps’ available for download to mobile phones and other devices, and every minute over 60 hours of video content is uploaded to YouTube (one hour of content per second). As it is impractical to expect all of this media content to be classified in Australia, the focus in this report is developing an effective classification scheme for material that Australians most expect classification information for.
Under the ALRC’s model, the scope of what must be classified should be confined to feature films, television programs and higher-level computer games. Such content will be only required to be classified if it is made and distributed on a commercial basis and likely to have a significant Australian audience. The need to classify should be based upon the nature of the content itself—including its likely audience reach—rather than the platform from which it is delivered and accessed. Obligations to classify content would not generally apply to persons uploading online content on a non-commercial basis, nor to internet service providers.
For content that is likely to be rated R 18+ or X 18+, the requirement for providers is to take reasonable steps to restrict access to adults only. Recognising the challenges of online content, content providers will be required under a new Classification of Media Content Act to issue warnings, use age-verification systems, or promote self-regulatory initiatives to assist consumers, in order to protect children and others.
Classification categories should be harmonised and the criteria combined so that the same categories and criteria are applied across all forms of media content and delivery platforms. It is particularly important in a rapidly changing media environment that classification criteria be reviewed regularly, to ensure they continue to reflect prevailing community standards in light of such research.
One classification category that may no longer align with community standards is that of ‘Refused Classification’ category, which the ALRC recommends be renamed “Prohibited”, and its scope narrowed.
Regulatory measures to restrict access to adult content will always need to be complementary to other Government and industry cyber-safety initiatives, including public education, parental locks, dynamic content filtering, and user reporting of inappropriate content.
A greater role for industry in classification is envisaged, which would allow the Government to focus more directly on the content that generates the most concern in terms of community standards and the protection of children. The new scheme provides for greater classification decision-making by authorised industry classifiers, but subject to regulatory oversight and review. It may also be appropriate to deem that decisions made under an authorised classification system developed overseas could have an equivalent Australian classification.
The role of the Classification Board remains vitally important, as an independent statutory body responsible for making classification decisions and reviewing decisions. Indeed, with a greater role for industry classification, the benchmarking role of the Board becomes more important, as there is a high level of public confidence in the Board’s decisions.
The new scheme should be a Commonwealth responsibility, replacing the current cooperative scheme which generates inconsistencies in offences and penalty provisions, and is poorly equipped for the challenges of global media and technological change. The Federal Government should be responsible for the enforcement of classification laws and associated offences and penalties, with ongoing consultation with the states and territories on classification matters, including enforcement.
Terry Flew was Commissioner in charge of the Australian Law Reform Commission’s review of the National Classification Scheme. He is Professor of Media and Communication at the Queensland University of Technology.