Classification—Content Regulation and Convergent Media FINAL REPORT ALRC Report 118 February 2012 This Final Report reflects the law as at 29 February 2012. The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 40 MLC, 19 Martin Place, Sydney, NSW, 2000, Australia Postal Address GPO Box 3708 Sydney NSW 2001 Telephone: within Australia (02) 8238 6333 International +61 2 8238 6333 Facsimile: within Australia (02) 8238 6363 International +61 2 8238 6363 E-mail: [email protected] Website: www.alrc.gov.au ALRC publications are available to download free of charge or to purchase in hard copy from the ALRC website. If you require assistance, please contact the ALRC. ISBN: 978-0-9871777-3-5 Commission Reference: ALRC Report 118, 2012 © Commonwealth of Australia 2012 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed to the Australia Law Reform Commission. The Hon Nicola Roxon MP Attorney-General of Australia Parliament House Canberra ACT 2600 28 February 2012 Dear Attorney-General Review of Censorship and Classification On 24 March 2011, the Australian Law Reform Commission received Terms of Reference to undertake a review of Censorship and Classification. On 17 November 2011, the Commission’s reporting date was extended from 31 January 2012 to 28 February 2012. On behalf of the Members of the Commission involved in this Inquiry—and in accordance with the Australian Law Reform Commission Act 1996—I am pleased to present you with the Final Report on this reference, Classification—Content Regulation and Convergent Media (ALRC Report 118, 2012). Yours sincerely, Professor Rosalind Croucher Professor Terry Flew President Commissioner in Charge Contents Terms of Reference 5 Participants 7 Recommendations 11 Executive Summary 21 Part 1—Introduction 31 1. Introduction to the Inquiry 33 Introduction 33 Related inquiries 34 Scope of the Inquiry 36 The law reform process 38 Economic impact 40 Report outline 41 2. The Current Classification Scheme 47 Summary 47 From censorship to classification 47 Classification cooperative scheme 49 Broadcasting Services Act 50 Assessing the current scheme 53 The need for fundamental reform 59 3. Media Convergence and the Transformed Media Environment 63 Summary 63 Media convergence and the transformed media environment 64 Media convergence and ‘broken concepts’ in legislation 74 4. Guiding Principles for Reform 77 Summary 77 Context for the Reform Principles 78 Guiding Principles 80 Platform Neutrality and the Question of Media Effects 96 5. The New National Classification Scheme 101 Summary 101 The Classification of Media Content Act 102 Responses to the Discussion Paper 104 Content and content providers 106 2 Classification—Content Regulation and Convergent Media Obligations for online content 109 The new Act and online content providers 113 The ABC and SBS 120 Part 2—A New Classification Scheme 123 6. Films, Television Programs and Computer Games 125 Summary 125 Determining what content should be classified 126 Films, television programs and computer games 130 Exemptions 141 Voluntary classification 143 Classify notices 144 7. Classification Decision Makers 147 Summary 147 Who currently classifies content? 148 Determining who should classify content 150 Content to be classified by the Classification Board 153 Industry classification 159 Checks and safeguards 170 Classification decisions database 178 8. Markings, Modifications, Time Zones and Advertising 181 Summary 181 Markings 182 Modifications 186 Packaging media content 190 New consumer advice 192 Television time-zone restrictions 193 Advertisements for films, television programs and computer games 197 Public display of media content 200 9. Classification Categories and Criteria 203 Summary 203 Classification categories 204 Consumer advice 213 Classification criteria 217 Research 226 10. Restricting Access to Adult Content 229 Summary 229 Restricting access to adult content 230 Should all adult content be classified? 238 Reasonable steps to restrict access 243 Removing mandatory restrictions on MA 15+ content 254 Young people and cyber-safety 256 Content 3 11. The Scope of Prohibited Content 259 Summary 259 Overview of the RC category 260 The current scope of RC content 262 Renaming the RC category 268 Reforming the scope of Prohibited content 269 Pilot study into community attitudes to higher-level media content 279 12. Prohibiting Content 283 Summary 283 The obligation 284 Classifying before enforcement 287 Prohibitions offline 289 Prohibitions online 290 International cooperation 298 Part 3—Administering and Enforcing the New Scheme 301 13. Codes and Co-regulation 303 Summary 303 Regulatory forms 304 Factors in determining regulatory form 305 Existing industry codes 306 Codes and co-regulation 308 Industry codes and the new scheme 310 14. The Regulator 321 Summary 321 Existing agencies 322 The Regulator 325 Functions of the Regulator 331 15. Enacting the New Scheme 341 Summary 341 The Classification of Media Content Act 341 The classification cooperative scheme 342 Commonwealth legislative powers 344 Enacting the new Act 345 Inconsistency of Commonwealth and state laws 349 Consultation with states and territories 351 16. Enforcing Classification Laws 353 Summary 353 Enforcement of classification laws offline and online 354 Enforcement under the classification cooperative scheme 354 Enforcement under the Broadcasting Services Act 357 State and territory online content regulation 359 Enforcement problems 359 Enforcement under Commonwealth law 360 4 Classification—Content Regulation and Convergent Media Appendix 1. Agencies, Organisations and Individuals Consulted 371 Appendix 2. Key Obligations Under the New Scheme 379 Appendix 3. International Comparison of Classification and Content Regulation 381 Appendix 4. Glossary of Key Terms 395 Terms of Reference Review of Censorship and Classification Having regard to: • it being twenty years since the Australian Law Reform Commission (ALRC) was last given a reference relating to Censorship and Classification • the rapid pace of technological change in media available to, and consumed by, the Australian community • the needs of the community in this evolving technological environment • the need to improve classification information available to the community and enhance public understanding of the content that is regulated • the desirability of a strong content and distribution industry in Australia, and minimising the regulatory burden • the impact of media on children and the increased exposure of children to a wider variety of media including television, music and advertising as well as films and computer games • the size of the industries that generate potentially classifiable content and potential for growth • a communications convergence review, and • a statutory review of Schedule 7 of the Broadcasting Services Act 1992 and other sections relevant to the classification of content I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the extent to which the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), State and Territory Enforcement legislation, Schedules 5 and 7 of the Broadcasting Services Act 1992, and the Intergovernmental Agreement on Censorship and related laws continue to provide an effective framework for the classification of media content in Australia. Given the likelihood of concurrent Commonwealth reviews covering related matters as outlined above, the Commission will refer relevant issues to those reviews where it would be appropriate to do so. It will likewise accept referral from other reviews that fall within these terms of reference. Such referrals will be agreed between the relevant reviewers. 6 Classification—Content Regulation and Convergent Media 1. In performing its functions in relation to this reference, the Commission will consider: 1. relevant existing Commonwealth, State and Territory laws and practices 2. classification schemes in other jurisdictions 3. the classification categories contained in the Classification Act, National Classification Code and Classification Guidelines 4. any relevant constitutional issues, and 5. any other related matter. 2. The Commission will identify and consult with relevant stakeholders, including the community and industry, through widespread public consultation. Other stakeholders include the Commonwealth Attorney-General’s Department, the Department of Broadband, Communications and the Digital Economy, the Australian Communications and Media Authority, the Classification Board and Classification Review Board as well as the States and Territories. 3. The Commission is to report by 30 January 2012. Participants Australian Law Reform Commission President Professor Rosalind Croucher Commissioner in Charge Professor Terry Flew Commissioners The Hon Justice Berna Collier, Part-time Commissioner The Hon Justice Susan Kenny, Part-time Commissioner Executive Director Sabina Wynn Legal Team Bruce Alston, Acting Principal Legal Officer