The document discusses challenges with Australia's current media content regulation system due to technological convergence, proposing a new platform-neutral regulatory framework with a single regulator and industry co-regulation that shifts the focus from delivery platforms to content classification and restricting access to adult content. Major recommendations include consistent classification rules across all media, authorizing industry involvement in classification, and narrowing the scope of prohibited content.

1. The Classification Challenge:
Content Regulation and Convergent
Media
Professor Terry Flew
Creative Industries Faculty, QUT
Presentation to Journalism and Media
Research Centre, University of New
South Wales, 15 May 2012

2. Background
• ALRC review of Censorship and Classification
(1991)
• Rapid pace of technological change and
community uptake of new media technologies
• Community needs and expectations in an
evolving technological environment
2

3. Terms of Reference
Consider the extent to which
• the Classification (Publications, Films and
Computer Games) Act 1995;
• 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
The Hon R McClelland MP
Attorney-General
3

4. 4

5. Other inquiries
• Convergence Review – independent inquiry
conducted through DBCDE
• Attorney-General‟s public consultation on R18+
games
• Review of RC (Refused Classification) category in
context of mandatory Internet filtering debates
• Parliamentary inquiries into:
– cyber safety
– Outdoor advertising
– National Classification Scheme
• National Broadband Network (NBN) as a
significant contextual factor
5

6. National Classification Scheme
Classification Board:
• films
• computer games
• publications (some)
ACMA:
• broadcasting
• online content
Enforcement:
Customs:
• sale
• ‘objectionable material’
• distribution
• advertising
6

7. National Classification Scheme
• Mobile apps
• Advertising
• Art works
• User created content
• Music
• Broadcasting
• Online content
• Online games
• Feature films
• DVDs
• Publications
(submittable)
• Computer games
7

8. Incremental change or fundamental reform?
"Australia's media content regulation system is like a bowl of spaghetti that's been put
to the back of the fridge and gets dragged out every five years, reheated with additional
sauce, partly eaten and then put back in the fridge for later. It's complex, tangled and
from a media user point of view its impossible to tell which bit of media content
connects to which regulatory framework“ (Catharine Lumby).
8

9. History: From Censorship to Classification
• S. 51 of Constitution of Australia – C‟wth powers over
„postal, telegraphy, telephonic and like services‟ – also
trade and commerce (s. 51) and territories (s. 122)
powers
• Crowe v Graham 1968 – basis for liberalisation in 1970s
– from „obscene‟ material to „community standards‟ test
• R18 category introduced in 1973
• ALRC 1991 Report recommended national classification
scheme
9

10. Problems of the current NCS
• Absence of R18+ games classification – legislation
passed in H of R March 2012
• Pervasive “double handling” of content
• Intergovernmental Agreement with States and Territories
– need for unanimity
• Anomalous treatment of content between states and
territories – X-rated material
• Significant non-compliance with current laws
• Vague and expansive RC category
• Unclear treatment of online content (sch 7 of BSA)
• Lack of clarity in relationship between government
agencies eg. Classification Board and ACMA
10

11. Context of Media Convergence
1. Increased access to high-speed broadband
networks
2. Digitisation of media products and services
3. Convergence of media platforms and services
4. Globalisation of media platforms,
content and services
11

12. Context of Media Convergence
5. Acceleration of innovation
6. Rise of user-created content
7. Greater media user empowerment
8. Blurring of public/private and age-based
distinctions
12

13. • „Australia‟s communications sectors are
undergoing profound change as a result of
convergence. Existing regulatory arrangements
built around industry „silos‟ are challenged by
new technologies, market structures and
business models. In this committee‟s view it is
likely that revolutionary change to the existing
policy framework will be needed to respond to
convergence‟. Convergence Review: Emerging
Issues Paper (2011), 11.
13

14. • „New developments do not imply that existing regulations
need to extend their coverage over other platforms and
services ... [I]t is important that instruments used do not
hinder the positive developments and aspects of convergence
while also being effective, robust and flexible.‟ (OECD, 2007)
• „Nation state governments clearly have a remit to enforce the
laws of their country and to protect public policy priorities
when it comes to cultural and social parameters. Their ability
to enforce this remit is restricted due to the sheer volume of
media content as well as the decentralisation and vast
number of media producers‟. K Crawford and C Lumby, The
Adaptive Moment: A Fresh Approach to Convergent Media in
Australia (2011), 40.
14

15. From Silos to Convergence
15

16. Verticals and horizontals
16

17. Policy Context: Broken Concepts
• “Digitalisation has broken the nexus between the
shape of content and the container which carries
it … Legacy delivery arrangements followed
service-specific networks and devices.
Technological change in the form of digital
transmission systems means that service
delivery is now largely independent of network
technologies. This can be conceived and
depicted as a shift from the vertical, sector-
specific approach to the horizontal, layered
approach” (ACMA, Broken Concepts, 2011: 6).
17

18. The ALRC approach to Law
Reform
• Building an evidence base
• Bias towards public
consultation
• Role of Advisory Committees
• Economic impact
• „Law reform is too important
to be left to the experts‟
(Justice Michael Kirby, first
Chair of ALRC)
18

19. Review timeline
Commissioner appointed (April 2011) Issues Paper released (May 2011)
Industry and stakeholder Formation of Advisory
Public submissions Public presentations
consultations committee
Public consultations Public submissions Advisory Committee meetings Public presentations
19

20. The ALRC Review Process
20

21. 21

22. Leximancer analysis of 2,350 Issues
Paper submissions
22

23. A new NCS framework? (Leximancer
analysis of Q1 – Issues Paper)
23

24. Net Libertarianism
24

25. 25

26. „In the context of media convergence, there is a need to
develop a framework that focuses upon media content
rather than delivery platforms, and can be adaptive to
innovations in media platforms, services and content ...
and there is a case for a new Act governing
classification, as well as revised regulatory arrangements.
The costs and regulatory burden of the current
classification framework align poorly to community
standards and expectations. There is too much top-down
regulation of some media content and platforms, including
double handling of the same content, while regulatory
responsibilities are unclear in relation to other media.
ALRC Discussion Paper, September 2011: 44.
.
26

27. Principles of the current National
Classification Code
• adults should be able to read, hear and see what they
want;
• minors should be protected from material likely to harm
or disturb them;
• everyone should be protected from exposure to
unsolicited material that they find offensive;
• 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.
27

28. Proposed Guiding Principles for
Reform
1. Australians should be able to read, hear, see and
participate in media of their choice;
2. Communications and media services available to
Australians should broadly reflect community
standards, while recognising a diversity of
views, cultures and ideas in the community;
3. Children should be protected from material likely to
harm or disturb them;
4. Consumers should be provided with information
about media content in a timely and clear
manner, and with a responsive and effective means
of addressing their concerns, including through
complaints;
28

29. Proposed Guiding Principles for
Reform
5. The classification regulatory framework needs to be
responsive to technological change and adaptive to
new technologies, platforms and services;
6. The classification regulatory framework should not
impede competition and innovation, and not
disadvantage Australian media content and service
providers in international markets;
7. Classification regulation should be kept to the
minimum needed to achieve a clear public purpose;
and
8. Classification regulation should be focused upon
content rather than platform or means of delivery.
29

30. History: From Censorship to Classification
• S. 51 of Constitution of Australia – C‟wth powers over
„postal, telegraphy, telephonic and like services‟ – also
trade and commerce (s. 51) and territories (s. 122)
powers
• Crowe v Graham 1968 – basis for liberalisation in 1970s
– from „obscene‟ material to „community standards‟ test
• R18 category introduced in 1973
• ALRC 1991 Report recommended national classification
scheme
30

31. Problems of the current NCS
• Absence of R18+ games classification – legislation
passed in H of R March 2012
• Pervasive “double handling” of content
• Intergovernmental Agreement with States and Territories
– need for unanimity
• Anomalous treatment of content between states and
territories – X-rated material
• Significant non-compliance with current laws
• Vague and expansive RC category
• Unclear treatment of online content (sch 7 of BSA)
• Lack of clarity in relationship between government
agencies eg. Classification Board and ACMA
31

32. Context of Media Convergence
1. Increased access to high-speed broadband
networks
2. Digitisation of media products and services
3. Convergence of media platforms and services
4. Globalisation of media platforms,
content and services
32

33. Context of Media Convergence
5. Acceleration of innovation
6. Rise of user-created content
7. Greater media user empowerment
8. Blurring of public/private and age-based
distinctions
33

34. Convergence Review
‘Existing regulatory arrangements built around
industry ‘silos’ are challenged by new
technologies, market structures and business
models’
34

35. The ALRC model
35

36. 36

37. 1. Platform-neutral regulation
• Common classification rules for the
same/similar media content across
platforms, services and devices
• Single set of classification categories and
criteria, informed by community standards
37

38. 38

39. Commonwealth scheme
• Responding to the internet overtaking the
entire media content landscape
• Replacing current classification cooperative
scheme with single Commonwealth Act
• Many recommendations
can be implemented
without a new Act

40. 40

41. A single regulator
• Bringing together powers currently with:
– Attorney-General’s Department
– Classification Board
– DBCDE
– ACMA
– Customs

42. 42

43. Clear scope
What must be classified:
• Computer games MA15+ or higher, feature
films and TV programs
– Likely to have a significant Australian audience
– Made and distributed on a commercial basis
43

44. Clear scope
By whom
• The Classification Board as ‘benchmarker’:
– feature films for Australian release
– computer games likely to be classified MA15+ or
above
• Industry:
– Most other content (e.g. television
programs, games below MA15+, most online
content)
– but how?
44

45. The question of adult content
• Restrict access obligation for R18+ and X18+
content across media platforms
• „Reasonable steps‟ may vary according to
type of content provider (e.g.
commercial/non-commercial)
• Range of provisions for Regulator in
responding to failures to restrict access
• Promotion of complementary cyber-safety
initiatives
• Remove all mandatory restrictions on MA15+
content
45

46. 46

47. Co-regulation
• Authorisation of industry classifiers
• Recognition of rigorous classification systems
developed in other jurisdictions
– e.g. PEGI, ESRB for games
• Industry ‘buy in’/regulator as ‘back stop’
47

48. Smarter Policy (APSC)
Policy Instrument Advantages Disadvantages
Direct government regulation Legal certainty; Knowledge gaps; costs;
(‘command-and-control’ enforcement provisions time; non-compliance
regulation)
Self-regulation, co-regulation Flexibility; industry Risk of tokenism; govt.
and quasi-regulation knowledge; buy-in; avoidance of issues;
scope to raise standards barriers to entry
Voluntarism Motivated participation Difficult to target
outcomes; interest over
time
Education and Information Low administrative Private/public interest
burden; low cost tensions
Economic instruments Behavioural influence; Costs to govt.;
incentives; scope for inequitable impact;
innovation; flexibility determining outcomes
48

49. 49

50. Regulatory focus
• For adult content shift focus to restricting
access
– Restrict access obligation for R18+ and X18+
content across media platforms
– ‘Reasonable steps’ may vary according to type of
content provider
• Promotion of complementary cyber-safety
initiatives
50

51. Prohibited content
• Replacing „Refused Classification‟ category
• Narrowing of scope
– Criminal depictions
– „Abhorrent‟ content
– Serious crime
– Material on Interpol „black list‟
• Not applied to:
– Fetish activities
– „Offensive‟ material involving consenting adults
– Non-serious crime (e.g. graffiti, shoplifting)

52. Net effect
1. Consistent rules for media content
2. Framework that can be adaptive to
technological change and media convergence
3. Regulatory focus shifts from platform basis to
areas of greatest community concern
4. Promoting greater industry engagement with
classification

53. Net effect
5. Ongoing regulatory oversight to safeguard
community standards
6. Reducing overall regulatory burden on
industry
7. Harmonising classification laws across
Australia, to benefit of consumers and
content providers

54. 54

55. Further questions
1. In a convergent media environment, how would you
identify what constitutes sufficiently ‘big media’ to
warrant regulation without impinging upon rights to
communicate and participate among the community
more widely?
2. In a convergent media environment, does it still make
sense to adhere to a general principle that “the Internet
must not be regulated”, given that “the Internet” clearly
incorporates quite mainstream content and channels?;
3. How can nation-state regulations be applied to global
media corporations and media platforms (e.g. Apple,
Google), given that media is not long territorially defined?

56. Further questions
4. To what extent can various forms of “soft law” operate as
a means of ensuring that regulations remain flexible and
adaptive in light of rapid and unanticipated technological
and market changes?
5. What are meaningful forms of enforcement of national
laws and regulations in a globally networked media
environment?
6. How would one measure media influence in a convergent
media environment?
7. Is the concept of ‘community standards’ still a relevant
variable in considering media regulation? In its
absence, are we effectively saying that the state has no
role in the regulation of media markets?