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Focus: Communications, Media and Technology – December 2007Internet content services regulationIn brief: Recent
and complex changes to the Broadcasting Services Act 1992 have been
driven by an objective of harmonising Australia's content regulation. Subject to
a number of exceptions, whatever the delivery platform or form the content
takes, whether permanent or ephemeral, the Internet content industry will be required to
respect community standards on content, particularly that which may be objectionable to
children. Partner Ian McGill
The Communications Legislation Amendment (Content Services) Act 2007 (Cth) (the Content Services Act) amends the Broadcasting Services Act 1992 (Cth) (the BSA) to enable consistency in content regulation across various platforms. It provides for the regulation of content services delivered over convergent devices, such as broadband services to mobile handsets, and also live or streamed content provided over the Internet. Certain transitional provisions for the Content Services Act commenced on 20 July 2007, but the bulk of the Act will commence on Proclamation or at the latest on 20 January 2008. The regulatory scheme, however, remains co-regulatory and is strongly dependent upon industry input. That is, a combination of industry codes registered with the Australian Communications and Media Authority (ACMA) and a range of supplementary enforcement powers, administered by ACMA, under the BSA.
IntroductionIn 2004, the Big Brother 'turkey slapping incident' exposed a gap in the regulatory framework. Sexually explicit content unable to be shown on commercial television was nonetheless able to be streamed live from the Big Brother website. The existing Schedule 5 to the BSA at that time provided a regulatory framework for stored content made available over the Internet. However, this framework did not extend to ephemeral content such as live streamed audiovisual services, nor to services over other types of networks such as the mobile telephone network. Consequently, the material on the website could not be required to be removed. Following a Department of Communications, Information Technologies and the Arts review of the regulation of content delivered over convergent devices in April 2006, the Content Services Act was introduced, largely in response to this incident. It establishes a new regulatory framework for particular Internet content delivered over various platforms by substantially repealing Schedule 5 of the BSA and introducing a new Schedule 7. The particular content is referred to as prohibited and potential prohibited content and is described below. As amended, Schedule 5 will now solely regulate Internet Service Providers (ISPs) and it will do so only in relation to that content hosted outside of Australia. If an ISP hosts that content both outside and inside of Australia, it will be regulated by both Schedule 5 and Schedule 7. Schedule 5 has a much more limited operation. If the ACMA is satisfied that an ISP is hosting prohibited content or potential prohibited content then ACMA must:
When it commences, the new Schedule 7 will regulate content service providers, including live streamed content services, mobile phone-based services and services that provide links to content, but only in relation to content hosted within Australia or, in the case of live content, provided from Australia. While the scope of Internet content regulation has increased, the co-regulatory framework itself – which provides for regulation through a combination of legislation, industry codes, guidelines and standards – will remain largely unchanged.
Who is regulated under the Content Services Act?The Content Services Act provides for the regulation of content service providers, specifically, live content service providers who provide access to live content; hosting service providers, who provide stored content to the public, and links service providers, who provide access to content via links. However, these service providers will only be subject to the online content regime if they have the requisite 'Australian connection'. They will have such a connection if they host content in Australia (this includes hosting a link in Australia which provides access to content that may or may not be hosted in Australia) or provide live content from a server in Australia. ISPs will now be regulated under the BSA Schedule 5 only in relation to content hosted outside of Australia.
Content services regimeTake-down, service-cessation, link-deletion and access-prevention regimeContent service providers are not required to actively monitor, review or classify content (with the exception of commercial content providers) to determine whether it is prohibited or potential prohibited content (see below). However, they can be required by ACMA to remove or limit access to prohibited content and potential prohibited content. A take-down, service-cessation or link-deletion notice can be issued as a result of complaints or ACMA's own independent investigation. Anti-avoidance mechanisms have also been introduced to prevent content service providers from hosting content that is substantially similar to content that is already the subject of a notice. Content service providers must take 'reasonable steps' to comply with special notices issued under the anti-avoidance provisions. ACMA can require ISPs to take all reasonable steps to prevent end-users from accessing prohibited or potential prohibited content that is hosted outside of Australia by issuing a standard access-prevention notice. However, ISPs may be exempt from these notices if ACMA has declared that a specified arrangement is a recognised alternative access-prevention arrangement; that is, if it is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access to that content. Examples of such arrangements could include Internet content filtering software or the use of a family-friendly filtered Internet carriage service. Failure to comply with a take-down, service-cessation, link-deletion or access-prevention notice is both a criminal offence and a civil contravention, with a separate offence committed in respect of each day the infringer remains in contravention. In addition, and consistent with additional powers conferred on ACMA, infringers may be required to comply with a remedial direction from ACMA. The Content Services Act provides for Administrative Appeals Tribunal review of such decisions by ACMA. Prohibited and potential prohibited contentContent (other than an eligible electronic publication: basically text or images from newspapers, magazines or books) is prohibited content if:
Content that consists of an eligible electronic publication is prohibited content if the content has been classified RC, Category 2 Restricted or Category 1 Restricted by the Classification Board. Generally, content is potential prohibited content if the content has not been classified by the Classification Board, but if it were to be classified, there is a substantial likelihood that the content would be prohibited content. Prohibited and potential prohibited content is determined by reference to the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Classification Act), the National Classification Code (the NCC), the Guidelines for the Classification of Films and Computer Games and the Guidelines for the Classification of Publications. Commercial contentThe Content Services Act imposes additional requirements to be satisfied by commercial content services providers, in particular the engagement of trained content assessors. These requirements will be set out in an industry code or standard. The code is currently being drafted. A 'commercial content service' (CCS) is a content service that is operated for profit as part of a profit-making enterprise and is provided to the public but only on payment of a fee (whether periodical or otherwise). The requirement for assessment of content by a trained content assessor is new and an undoubted additional cost for the CCS section of the industry.
Related issuesMobile Premium Services Industry Scheme and restricted access systemsThe relationship between the Mobile Premium Services Industry Scheme (MPSI) and the Content Services Act is being defined by the drafting and eventual adoption of a new Restricted Access Systems (RAS) Declaration and content code. The Explanatory Memorandum to the Content Services Act earmarked the MPSI Scheme as an 'interim arrangement' and indicated that the intention was to remove premium rate services from the discrete regulatory framework under the telecommunications legislation and bring it within the BSA framework. However the Content Services Act itself does not address the transition from the MPSI to the Content Services Act scheme. This is being undertaken by industry. The ACMA has released a draft RAS Declaration for public consultation. The consultation period closed on 16 November 2007. The new RAS will replace both the current RAS in force under Schedule 5 of the BSA and the age verification requirements set out in the Telecommunications Service Provider (Mobile Premium Services) Determination 2005 (No 1). The RAS Declaration will apply to all content service providers. Until the declaration of the new RAS Declaration, it remains necessary to comply with various sources of law, although the Content Services Act will override the MPSI Scheme to the extent of any inconsistency. Codes and standardsIndustry codes of practice will be required to give effect to certain content service provider obligations, such as engaging appropriately trained content assessors to provide advice on the likely classification of live services, arrangements for the provision of consumer information and awareness mechanisms. Industry codes or standards will also be required to be formulated for the ISP section of the Internet industry. These codes or standards will deal with policies and procedures directed towards online child safety, complaints handling and filtering technologies. Where necessary, ACMA will have the power to determine industry standards where it considers that industry codes are deficient in ensuring that content services are provided in accordance with prevailing community standards. The Internet Industry Association (the IIA) has established a taskforce to develop an industry code of practice under the principles in the Content Services Act and drafting is well advanced.
Looking aheadRecent billsThe Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth) was assented to on 28 September 2007. The new Act introduces new provisions to the Classification Act, which will require that publications, films or computer games that advocate a terrorist act must be classified as Refused Classification. The Communications Legislation Amendment (Crime or Terrorism Related Internet Content) Bill 2007 was introduced into the Senate on 20 September 2007. The Bill proposes to amend Schedule 5 BSA to expand the 'blacklist' of Internet addresses currently maintained by the ACMA, to include terrorism and cybercrime sites, whether or not those sites are hosted in Australia. The practical effect of this Bill is that ISPs notified by ACMA and that offer customers a filtered service, will be required to take reasonable steps to prevent end-users from accessing the relevant crime or terrorism-related Internet content. Specifically, vendors of Family Friendly Filters will need to update their filters and supply them to those end-users who have requested a filter. It is anticipated that the IIA Codes currently being drafted will provide for such arrangements. Implications of new content services regime for social networkingThe new Content Services Act seeks to eliminate some of the perceived inconsistencies in content regulation that developed as a result of the emergence of new platforms for content delivery and focuses primarily on plugging the gap in relation to converged devices and live content. As a result, the Content Services Act, unlike its European counterparts, does not contemplate some of the practical difficulties associated with regulation in the context of newer trends, such as the proliferation of user-generated content on sites such as YouTube, MySpace and Facebook. If you have any queries about this or any other Internet-related issue or want assistance in formulating a submission on the industry code of practice, please feel free to contact us.
For further information, please contact:
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