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Focus: Communications, Media & Technology – September 2008

ACMA registers Content Services Code 2008

In brief: The Content Services Code for industry co-regulation in the area of content services as required by Schedule 7 to the Broadcasting Services Act 1992 was registered by ACMA on 16 July 2008. Partner Ian McGill (view CV) and Lawyer Valeska Bloch look at the implications following the Code's registration.

How does it affect you?

  • The Content Services Code (the Code) completes an important part of the regulatory matrix to deal with objectionable content that might be accessible on the Internet, on mobile phones or other delivery technologies.
  • The Code, which was developed following industry and public consultation, automatically applies to content service providers that provide hosting services (stored content), live content services, links services (links to content) and commercial content services (content that is part of a profit-making business and provided to the public for a fee) provided that each service provider has an Australian connection.
  • Content service providers who do not have an Australian connection are, nevertheless, indirectly regulated by the Broadcasting Services Act, Schedule 5.
  • The class caught by the Code is defined as Designated Content/Hosting Service Providers, and includes most of the Australian based Internet portal and mobile phone companies. For Designated Content/Hosting Service Providers, the Code provides guidelines to assist in compliance with legal obligations under Schedule 7 to the Broadcasting Services Act, outlines a content assessment regime for commercial content services providers and sets up a complaints handling mechanism for industry.
  • Designated Content/Hosting Service Providers must comply with any ACMA direction to comply with the Code. Failure to do so is both a criminal offence and a civil contravention.
  • The Code also supplements age verification requirements under the Restricted Access Systems Declaration 2007 and the Mobile Premium Services Determination 2007.

For earlier articles on the Australian online content regulatory regime to date, see Allens Focus: Communications, Media & Technology – December 2007 on Internet content services regulation, and Allens Focus: Communications, Media & Technology – February 2008 on the Restricted Access Systems Declaration 2008.

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Background – the Code in context

The regulation of content services delivered over convergent devices occurs within a co-regulatory framework. Some of the key instruments in this framework include:

  • Schedule 7 and, to a lesser extent, Schedule 5 to the Broadcasting Services Act 1992 (the BSA);
  • Restricted Access Systems Declaration 2007;
  • Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act);
  • National Classification Code (the Classification Code);
  • Guidelines for the Classification of Films and Computer Games and Guidelines for the Classification of Publications (the Classification Guidelines);
  • Telecommunications Service Provider (Mobile Premium Services) Determination 2005 (No.1) (MPSI Determination); and
  • from 16 July 2008, the Code.

Registration by the Australian Communications and Media Authority (the ACMA) on 16 July 2008 makes the Code legally enforceable.

The Code will be formally reviewed by the Internet Industry Association (IIA) Task Force, in consultation with ACMA, within 18 months from the date of implementation.

Schedule 5 to the BSA provides that an industry code should be developed by, and in relation to, the Internet service provider section of the Internet industry; however, it does not specify a time period for this to occur. A draft code for ISPs has not yet been released.

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Who is regulated under the Code?

The Code applies automatically to hosting service providers, live content service providers, links service providers and commercial content service providers (Designated Content/Hosting Service Providers) that have an Australian connection. However, Designated Content/Hosting Service Providers may also become voluntary signatories to the Code.

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What is an Australian connection?

An Australian connection is a fairly fact-based test of whether the content supplied is hosted (or stored) in Australia or if the live content is provided from Australia. Many content service providers who are based overseas use caching servers in Australia. However, it is thought that caching servers in Australia do not constitute the requisite connection because there is a specific exclusion of storage on a highly transitory basis provided that it is an integral function of the technology used in the transmission of the content.

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What if there is no Australian connection?

A content service provider that does not have an Australian connection is not home free: note that Schedule 5 to the BSA empowers the ACMA to either inform the Australian Federal Police of objectionable content, or to give to an Australian-based internet service provider an access-prevention notice. This may involve the effective blocking of the overseas-based content service provider's service.

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Compliance with industry codes

Designated Content/Hosting Service Providers must comply with any ACMA direction to comply with the Code. Failure to do so is both a criminal offence and a civil contravention, with a separate offence committed for each day the infringer remains in contravention. ACMA's decision to give, vary or refuse to revoke a direction will be reviewable by the Administrative Appeals Tribunal on the application of the provider concerned.

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Guidance to commercial content service providers

The BSA requires that the commercial content service provider (CCSP) section of the industry have developed a code to deal with the engagement of trained content assessors. This guidance is provided by the Code, particularly the when CCSPs must assess relevant content for the purposes of categorising that content as RC, X18+, R18+ or MA15+ or (in the case of an eligible electronic publication) as RC or category 2 restricted.

The Code provides that trained content assessors may be an employee of a CCSP or a contractor or other person engaged by the CCSP. Assessment of content by content assessors must be undertaken in accordance with the Classification Act, the Classification Guidelines and the Classification Code.

Sensible guidance is provided to CCSPs and their content assessor to assist them in forming views as to when content would not be substantially likely to be classified as objectionable content. See, in particular, paragraph 8.5 of the Code.

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Complaints

The Code requires content service providers to enable users to make complaints in a format determined by that service provider, including, where reasonably practicable, in an electronic format.

Content service providers should also publish a procedure for dealing with their complaints. The procedure should set out the mechanism for making complaints, reasonable time frames for dealing with complaints and their right to escalate complaints to ACMA.

Content service providers should investigate complaints regarding content stored or provided by them where it is reasonable to believe that users in Australia can access the relevant Prohibited Content or Potential Prohibited Content, the complaint is not frivolous or vexatious and is made in good faith, and the complaint is made within 30 days of the content being made available to the user making the complaint.

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Complaints about live content

The Code recommends that if CCSPs that provide live content to end users make a recording of that content, the recording should be kept for 60 days after transmission of that content, where reasonably practicable having regard to the availability and cost of storage. Where a complaint has been made in respect of that content, the recording should be retained longer than 60 days or in accordance with a direction from ACMA. For the purpose of determining whether a recording has been made, a CCSP may disregard any recording or storage of live content which occurs on a transitory basis as a function of the technology used in the transmission of that content.

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Online safety
Provision of information to users

The Code provides recommendations to the content industry to promote online safety by employing measures such as:

  • providing information and advice to assist parents and responsible adults in supervising and controlling their children's use of chat services and other content provided by those providers;
  • taking into account the safety of children when developing new content services; and
  • providing users with access to information about the classification of content.
Family friendly

The IIA launched the Family Friendly ISP scheme in 2002. Under the scheme, compliant ISPs could display a symbol known as the 'Ladybird Seal' as a means of indicating to users that they were compliant with the IIA codes. The Code enables hosting service providers, who qualify to become an IIA Family Friendly Content Service Provider to user the Ladybird seal as a safety button to hyperlink to the IIA's safety page or their own separately developed safety page which provides certain information, such as methods of supervising and managing children's access to Internet and mobile content.

Notifications

The Code encourages CCSPs to notify other CCSPs that the second CCSP is making available Prohibited Content or Potential Prohibited Content to users in Australia, in the event that the first CCSP becomes aware and they reasonably consider that the second CCSP is unaware, or likely to be unaware, that this is the case. However, the Code does not impose a requirement that any CCSP monitors any other CCSP's content or content service.

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Restricted access
Interplay between the Restricted Access Systems Declaration and the Code

The Restricted Access Systems Declaration (RAS Declaration 2007) came into effect on 20 January 2008 and requires Australian content service providers to implement systems to verify that people accessing MA15+ content from a CCSP or a premium mobile service are at least 15 years of age, and people accessing R18+ content are at least 18 (for more on the RAS Declaration 2007 see Allens Focus: Communications, Media & Technology – February 2008).

The RAS Declaration 2007 replaced both the Restricted Access Systems Declaration 1999 and the Mobile Premium Services Determination 2005 (the MPS Determination) but only to the extent that the MPS Determination dealt with the restriction of access to content and content classification. In doing so, it harmonised access requirements across both Internet and mobile platforms. The MPS Determination still applies to premium mobile services although, as of 1 January 2008, it exists in a significantly pared back form. It now regulates chat services and provides for the implementation of self-regulatory schemes. It is envisaged that these residual parts of the MPS Determination will ultimately be made into a Part 6 Code under the Telecommunications Act 1997 (Cth).

Part F of the new Code provides guidance about compliance with the minimum requirements of a RAS as set out in the RAS Declaration 2007. In particular, the Code requires that a RAS must provide users with both a warning about the nature of MA15+ or R18+ content, as well as with safety information about how parents or guardians may control access to such content by people under the appropriate age. The Code also provides examples of appropriate warnings that may be given.

In addition, under the Code, a Designated Content/Hosting Service Provider may elect to implement a Restricted Access System that limits access to MA15+ or R18+ content in certain circumstances, including, for example, where it has received a take-down notice, link-deletion notice or service-cessation notice from ACMA and wishes to continue giving users access to that content.

Age verification

This is a vexed issue. The RAS Declaration 2007 does not prescribe a particular method of verifying the age of users; however, it does require that in implementing the system, content service providers undertake a risk analysis to assess whether the proof of age evidence could be held by another person, the kind of evidence provided and the manner in which it is provided. The Code elaborates on this requirement by suggesting that it is useful for content service providers to identify, determine the likelihood of, evaluate and treat the risks, in evaluating the relevant concerns.

The Code sets out some practical guidance on when it is unlikely that the proof-of-age evidence provided could be held or used by a person younger than the person it purports to identify. See paragraphs 19.3 -19.6 the Code and the examples given.

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Chat services

The Code requires that CCSPs offering chat services as part of a commercial content service should consider implementing procedures to minimise the risk of and potential for illegal contact between children and adults. In doing so, they should consider using safety measures such as age restrictions, human moderation, human monitoring, electronic filtering, vetting profile information, limiting profile information, limiting search results, managing contact permissions, and enabling users to block unwanted content. The Code also suggests that CCSPs should also consider supporting education and awareness programs targeted at children, parents and teachers.

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Looking ahead

The Code is an essential instrument to enable relevant industry participants to comply with Schedule 7 to the BSA.

Significant in its absence however, is any practical guidance to industry in relation to dealing with law enforcement and regulatory agencies.

It is also noticeable (in light of ACMA's support for the Good Practice Guidance for Providers of Social Networking and Other User Interactive Services that was launched in the UK on 3 April 2008) that the Code does not provide specific guidance in relation to user-generated content or social networking sites (see our Focus: Communications, Media & Technology – April 2008 on guidelines and recommendations for social networking sites). Whether this will be a later addition to the Code, or form part of another regulatory instrument altogether, remains to be seen.

If you have any queries about this or any other media related matter please contact us.

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