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Allens Arthur Robinson

Focus: Communications, Media & Technology – February 2008

ACMA develops new Restricted Access Systems Declaration

In brief: With the bulk of the Communications Legislation Amendment (Content Services) Act 2007 (Cth) becoming operative on 20 January 2008, the Australian Communications and Media Authority has responded to the new content regulation scheme by developing a new Restricted Access Systems Declaration, which regulates access to restricted content delivered to mobile handsets and over the Internet. Lawyer Matt Vitins and Summer Clerk Chris Dalton look at what will change. 

How does it affect you?

  • The Restricted Access Systems Declaration relates to content that is classified R18+; and content that is provided by a commercial content service or a premium mobile service and that is classified MA15+.
  • If your business provides this type of content, you should ascertain whether the service you provide is a 'designated content/hosting service' and whether the Restricted Access Systems Declaration will apply.
  • To make sure access to your restricted content is subject to a restricted access system, consider whether current restricted access arrangements take into account MA15+ content provided by a commercial service or a premium mobile service; appropriate age verification procedures are in place for R18+ content; quality assurance measures are in place to prevent unauthorised access; warnings about the nature of MA15+ or R18+ content are being provided to access-seekers; and information is being provided to parents on how to control access to restricted content.

Application

The relevant sections of the Communications Legislation Amendment (Content Services) Act 2007 (Cth) (the Content Services legislation), together with the Restricted Access Systems Declaration (the Declaration), came into effect on 20 January 2008. The Declaration requires Australian content service providers to put in place systems to verify that people accessing MA15+ content from a commercial content service or a premium mobile service are at least 15 years of age, and people accessing R18+ content are at least 18. (For an earlier article on the legislation, see AAR Focus: Communications, Media & Technology – December 2007.)

The Declaration applies the same minimum access restriction standards to content delivered over the Internet (whether stored or live) and to mobile content. This approach abandons some previously significant regulatory distinctions and has allowed the harmonisation of pre-existing platform-specific restricted access rules.

The Declaration replaces the restricted access regime for stored Internet content established by the Restricted Access Systems Declaration 1999, which was in force under Schedule 5 to the Broadcasting Services Act 1992 (Cth), and the age verification requirements for mobile content set out in the Telecommunications Service Provider (Mobile Premium Services) Determination 2005 (No.1).

The Declaration will apply to providers of a 'designated content/hosting service', which is defined in the Content Services legislation as including:

  • a hosting service;
  • a live content service;
  • a links service; or
  • a commercial content service.

Importantly, only providers of such services with an 'Australian connection' will come under the scope of the Declaration.

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Context – legislative framework

The concept of a 'restricted access system' is important to the regulatory scheme set out in the Content Services legislation. The new content regulation scheme is similar to prior arrangements for Internet content in that a regulatory response is triggered by a complaint and investigation process. The Content Services legislation provides a mechanism for concerned citizens to complain to the Australian Communications and Media Authority (ACMA) about 'prohibited content', including and content that is, or could be, rated R18+, or material rated MA15+ if it was provided by a commercial content service or a premium mobile service, and that is not subject to a restricted access system. Following a complaint (or on its own initiative), ACMA will conduct an investigation. If the investigation establishes that the content in question is prohibited content, the ACMA may require that it be taken down, or may require that access be made subject to a restricted access system.

The Declaration also supplies the details of what constitutes an acceptable restricted access system.

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Content

The Declaration outlines a different set of standards for MA15+ and R18+ content, although some provisions are standard across both classifications. If a restricted access system has not verified that the access-seeker is the appropriate age to receive certain content, they must not be given access, and this includes hosting or providing a link to the content.

For both classifications, the restricted access system must provide the access-seeker with a warning about the nature of either MA15+ or R18+ content and with safety information regarding how a parent or guardian may control access.

Access may be allowed if the restricted access system has previously verified that the access-seeker is above the relevant age and has already been provided with the appropriate warnings and safety information. For R18+ material, the Declaration suggests that such repeat access should be dependent on the access-seeker being issued with a PIN or some other means of limiting access to verified users.

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Minimum requirements of access-control system for MA15+ content

According to the Declaration, an effective restricted access system for content that is classified (or classifiable) as MA15+ will require the access-seeker to apply for access either in writing, electronically or verbally. The application must include a declaration that the access-seeker is at least 15-years-old. This declaration from the access seeker must be in writing or in electronic form.

The restricted access system must also specify the 'quality assurance measures' that will be taken to remove an applicant's access if it has been granted contrary to the requirements set out in the Declaration.

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Minimum requirements of access-control system for R18+ content

Where content is R18+, an access-seeker must similarly apply for access in writing, in electronic form, or verbally.

Over and above the requirements for MA15+ material, someone seeking access to R18+ content is required to provide evidence that they are at least 18 years of age, and this evidence of age must satisfy a risk analysis.

The risk analysis must identify whether the evidence of age submitted may be used by someone other than the person it purports to identify, or that the person is younger than the age claimed. This risk analysis must also consider the kind of evidence of age being provided and the manner in which that evidence is received.

The Declaration requires that records be kept to demonstrate how the age of the applicant has been verified in relation to each applicant that has been granted access to R18+ content. These records are to be kept for a period of two years, during which time they must be produced on request by the ACMA. The records must also be kept in accordance with the National Privacy Principles contained in the Privacy Act 1988 (Cth).

The quality assurance measures for R18+ content are slightly different to those for MA15+ content, requiring not only details of how inappropriately granted access would be withdrawn, but also on the periodic review of the risk analysis procedures that have been implemented.

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Last word

The final draft of the Declaration is less onerous than a consultation draft that was released in October last year. In particular, a requirement to provide evidence of age in order to access MA15+ content has sensibly been abandoned. The quality assurance measures initially contained in the consultation draft have also been watered down.

Nonetheless, Australian content service providers who deliver MA15+ from a commercial content service or a premium mobile service or R18+ content either to mobile phones or over the Internet need to be conscious that the new rules may be stricter in some respects than the regulatory arrangements they replace. In particular, warnings and information need to be provided where this was not formally required under previous schemes. The treatment of Internet content generally is also substantially different – most notably with the extension of restricted access requirements to MA15+ content that is provided by a commercial content service or a premium mobile service.

Australian content service providers will need to consider whether their service comes within the scope of the new restricted access rules. If so, there is a risk that content could be prohibited if it is not kept behind an appropriate restricted access system.

If you have any further queries about the Declaration, or the Content Services legislation generally, please feel free to contact one of the contacts listed below.

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For further information, please contact:

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