On 1 March 2012, the Australian Law Reform Commission (ALRC) released its final report on Classification – Content Regulation and Convergent Media (the ALRC Classification Report). The ALRC proposed that the Australian Government pass a new Classification of Media Content Act to reflect the recommendations in the ALRC Classification report.
During the 2010 community consultations with respect to mandatory filtering by internet service providers (ISPs), sections of the community expressed concerns about whether the current content classification scheme was adequately transparent and whether it correctly reflected community standards. In response, Minister Stephen Conroy, the Minister for Broadband, Communications and the Digital Economy, announced in July 2010 that the Australian Government's mandatory ISP filtering policy would not be imposed until a review of the current content classification scheme was undertaken. As such, the ALRC Classification Report, which examines content classification and ISP-level filtering, will play a pivotal role in influencing what and how content should be blocked at the ISP-level, provided that the Australian Government continues with its mandatory filtering policy.
Key Points of ALRC Classification Report
- A new and narrower Prohibited Content category should replace the current RC category.
- Prohibited Content will be determined by the Classification Board.
- If a mandatory internet filter is to be implemented, ISPs should be required to filter only Prohibited Content.
- Realistically, only subcategories of Prohibited Content can be filtered by ISPs because of the large amount of Prohibited Content available on the internet.
What Would be the Effect of the ALRC Recommendations?
The ALRC supports a platform-neutral approach to content regulation. This would result in content being regulated in the same way regardless of the media platform by which content is conveyed to, or accessed by, the public. If the Australian Government agrees with this ALRC recommendation, this would have significant impact in bridging the current legal vacuum between technological advances, media convergence and content regulation.
The ALRC Classification Report has been considered by the Convergence Review, a separate landmark review of the regulation of media and communications in Australia. The Final Report of the Convergence Review indicated strong support for the ALRC's recommendations but made no explicit mention of the Australian Government's mandatory ISP filtering policy. The Minister has stated that the Australian Government will respond formally to the Convergence Review later in the year. Since the Convergence Review made similar findings to the ALRC Classification Report, it is possible that steps will be taken to implement the recommendations of the ALRC in its report later this year.
If accepted, the key recommendation of the ALRC would place an obligation on content providers and internet intermediaries to not distribute Prohibited Content. Although the ALRC did not make an explicit recommendation about the Australian Government's mandatory internet filter proposals, the report implies that ISPs may have an obligation to filter content.
Prohibited Content – A Narrow Definition
The ALRC recommends that, under the new Classification of Media
Content Act, the Refused Classification (RC)
category should be renamed 'Prohibited' to reflect better
the nature of the category. It is the ALRC's opinion that the
RC category is overly broad and that the new Prohibited category
should be defined more narrowly.
Specifically, the ALRC recommends that the Australian Government consider confining the current prohibitions to:
- the depiction of sexual fetishes on films;
- detailed instructions in the use of proscribed drugs; and
- content that promotes, incites or instructs in matters of crime. (With respect to this third item, the ALRC suggests that the Australian government should narrow the prohibition to content that 'promotes, incites or instructs in matters of serious crime'.)
Under the new regime, the ALRC recommends the establishment of a single regulator that will be responsible for most regulatory activities relating to the classification of media content, both offline and online. The Classification Board would be retained as an independent statutory body responsible for making some classification decisions and reviewing classification decisions.
Prohibited Content and Mandatory Internet Filter
An individual may commit an offence under the new Classification of Media Content Act if that individual uploads Prohibited Content onto a website. The website owner would be under an obligation to take down the content if so notified by the regulator.
The ALRC also states that, in the future, an ISP may have an obligation to filter the content, particularly where the website owner is located overseas. Although the ALRC does not recommend explicitly that an obligation be imposed on ISPs to filter Prohibited Content, it states that ISPs have an important role to play in preventing access by Australian residents to Prohibited Content displayed on websites.
If the Australian Government enacts legislation requiring mandatory internet filtering, the ALRC recommends the following for a mandatory ISP-level filtering scheme:
- Content should generally be classified Prohibited before ISPs are required to block or filter it;
- Certain Prohibited Content would have to be prioritised when deciding the kind of Prohibited Content that should be blocked through use of a mandatory filter at the ISP-level; and
- The regulator should have regard to community and international concerns about material displaying actual child abuse and non-consensual sexual violence when prioritising the types of Prohibited Content that should be filtered at ISP-level.
In light of community concerns about the lack of transparency in the current classification scheme, the ALRC considers that transparency of decisions should be an important element of any new classification system. The body responsible for classification decisions in the first instance, and on appeal, should be the Classification Board, so that the decision is independent from the regulator. An applicant seeking a review of the initial classification decision should have a reasonable opportunity to make submissions to the Classification Board. The Classification Board should then be required to provide detailed reasons in respect of any review decision within a specified time period.
If a mandatory internet filter system were implemented, the ALRC envisions that only a narrow category of materials would be filtered at the ISP-level. In that respect, mandatory internet filtering under a Prohibited Content regime seems less pervasive compared to mandatory internet filtering under a RC classification regime. This raises a further question on whether mandatory internet filtering at the ISP-level may become more acceptable to the public because the process of classification will be made more transparent and only a narrow category of content will be blocked at the ISP-level.
The Australian Government's mandatory ISP filtering policy has been on hold since July 2010 pending the release of the ALRC Classification Report and, subsequently, the Convergence Review. Since both inquiries have now concluded, it is expected that the Australian Government will now make an announcement concerning its proposed mandatory ISP filtering policy.
Addisons will continue to monitor these developments closely and provide an update on the Australian Government's response to the recommendations of the ALRC.
The assistance of Mary Huang, Graduate, of Addisons in the preparation of this article is noted and greatly appreciated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.