Guide to Media and Content Regulation in Asia Pacific
Total Page：16
File Type：pdf, Size：1020Kb
Guide to Media and Content Regulation in Asia Pacific 2012 Guide to Media and Content Regulation in Asia Pacific Table of Contents Australia .........................................................................................................................................1 China ..............................................................................................................................................9 Hong Kong....................................................................................................................................19 Indonesia ......................................................................................................................................29 Japan ............................................................................................................................................35 Malaysia .......................................................................................................................................43 New Zealand ................................................................................................................................51 Philippines ...................................................................................................................................63 Singapore .....................................................................................................................................71 South Korea .................................................................................................................................83 Thailand .......................................................................................................................................94 Vietnam ...................................................................................................................................... 103 List of Authors ........................................................................................................................... 112 Baker & McKenzie Locations .................................................................................................... 113 Baker & McKenzie Editor’s Note Baker & McKenzie is pleased to provide you with this complimentary first edition of its Guide to Media and Content Regulation in Asia Pacific, covering 12 jurisdictions. The aim of the Guide is to provide a ready reference source for the laws which shape media regulation in key Asia Pacific jurisdictions. It considers a diverse range of legal areas relevant to media interests and investors in the region, including: • Detailing the regulatory landscape: We identify and explain which media operations require which licences or permits, and the circumstances in which they may be obtained. We also analyse key foreign ownership restrictions and cross-media ownership limitations in what remains in many cases a highly regulated sector for investment. • Describing key areas of liability in respect of content: We identify and detail major areas of content-related liability, including defamation and contempt, copyright, classification regimes and advertising limitations and controls. In many jurisdictions, such laws are in an almost constant state of flux, as legislatures and regulators struggle to keep pace with a rapidly evolving media and technology landscape. Consumers are being increasingly exposed to a dizzying array of choice as to how they receive and consume content. For example, audio-visual content, once largely limited to free-to-air television, is now available on demand, on myriad devices and via multiple distribution platforms and business models. Accordingly, a key challenge for the evolution of media and content laws has been a structural one: the convergence of computing and other information technologies, media content and communication networks, which has arisen as the result of the progression and popularity of online digital distribution mechanisms, has meant legislatures throughout the region are questioning the most basic premises of their respective regulatory regimes. Convergence has progressed beyond being a fashionable buzzword to being a reality in the average living room or study, or indeed wherever we choose to engage with content. It increasingly allows us to interact with others on a social level and use multiple media platforms to create new experiences, new forms of media and content that connect us socially, and not just to other consumers, but to the commercial producers of media in ways that have not been as readily accessible in the past. This Guide attempts to provide a basis for comparison across jurisdictions as to how questions of convergence are being dealt with at a regulatory level. We commend it as an important resource for any organisation operating, or investing in, media and content businesses throughout the Asia Pacfic region. ******************** Andrew Stewart Adrian Lawrence Allison Manvell Partner, Sydney Partner, Sydney Senior Associate, Sydney Co-editor Co-editor Co-editor Baker & McKenzie Guide to Media and Content Regulation in Asia Pacific Australia Country Australia Media Regulatory Authority Australian Communications and Media Authority (the ACMA) Foreign investment controls Yes. The media is a classified as a “sensitive sector” under Australia’s foreign or restrictions investment regime and as such, all direct proposals by foreign investors in the media sector irrespective of size are subject to prior approval, along with Australia portfolio shareholders of 5% or more. Cross-media ownership controls Yes. Statutory control rules and restrictions on transactions that result in or restrictions to protect competition unacceptable media diversity. in the local media sector Forms of media that may be supplied Services delivered over the internet. without a government licence Print – newspapers, magazines etc Note that public broadcasters are not licensed but instead operate under establishing legislation. Forms of media that may be supplied Subscription radio broadcasting services. under a class licence Open and subscription narrowcasting radio and television services. Forms of media that may only be Commercial television and radio broadcasting services. supplied if an individual licence is obtained Community television and radio broadcasting services. Subscription television broadcasting services. International broadcasting service (subject to dual licensing requirements). Primary legislation Broadcasting Services Act 1992 (Cth) Broadcasting services and, to a lesser extent, online content services Radiocommunications Act 1992 (Cth) Radiofrequency spectrum Telecommunications Act 1997 (Cth) Telecommunications service providers (including carriers, carriage service providers and content service providers) Copyright Act 1968 (Cth) Copyright Defamation Act 2005 Defamation (various states and territories) Competition and Consumer Act 2010 (Cth) Competition law and consumer protection Baker & McKenzie 1 Local Media Regulation Australia The Australian broadcasting industry is primarily regulated by the Broadcasting Services Act 1992 (Cth) (BSA). The key Australian Government regulator of the media sector is the Australian Communications and Media Authority (ACMA). A complete review of the Australian media and communications regulatory landscape has recently been completed in light of convergence in the Australian media and communications industries. A range of other more targeted reviews have also occurred recently, a number of which have been highlighted in the summary below. It is possible that this period of intensive review activity in the media sector could trigger changes in the approach to media regulation in Australia. Licences What Licences are Required? Broadcasting Services A licence is required under the BSA in order to provide a television or radio broadcasting service in Australia via any means. At present, the following are not considered to be broadcasting services under Australian law and, as a consequence, do not require a licence under the BSA: • services providing data or text only, with or without associated still images (eg teletext or email); • services that make programs available on demand on a point-to-point basis only; • internet streaming services. The term “internet” is not defined in the exclusion. This exclusion raises interesting questions in Australia as it acts to exclude services delivered via the internet from the key regulatory obligations that otherwise apply to broadcasting services. There are various categories of broadcasting service in Australia, and each has different levels of regulation including different licensing requirements whereby: • national broadcasting services (the Australian public broadcasters’ free to air services, along with broadcasts of parliamentary proceedings) are not licensed under the BSA. These services are primarily regulated by their establishing legislation as follows: - broadcasting services provided by the Australian Broadcasting Corporation (ABC) are regulated by the Australian Broadcasting Corporation Act 1983 (Cth); - broadcasting services provided by the Special Broadcasting Service Corporation (SBS) are regulated by the Special Broadcasting Service Act 1991 (Cth); and - broadcasts of parliamentary proceedings are regulated by the Parliamentary Proceedings Broadcasting Act 1946 (Cth). However, subscription broadcasting services and subscription or open narrowcasting services provided by the ABC or SBS are primarily regulated with those categories of