1

Reforming the Australian Media Classification Scheme

Professor Terry FlewAustralian Law Reform Commission

Presentation to Communications Policy and Research Forum, Sydney,

8 November, 2011

The National Classification Scheme

2

Classification Board:• films• computer games• publications (some)

Enforcement:• sale• distribution• advertising

Customs:• ‘objectionable material’

ACMA:• broadcasting• online content

Challenges

3

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

4

Other related inquiries• Attorney-General’s Dept –R 18+ for

computer games (SCAG agreement in Adelaide July 2011)

• DBCDE accountability review for ISP filter (RC)

• Senate Committee inquiry into film and literature classification scheme

• Convergence Review – including sch 7 of the Broadcasting Services Act

5

The ALRC review announced

6Attorney-General of Australia, the Hon Robert McClelland MP

The Hon R McClelland MPAttorney-General

Terms of Reference

7

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 Inquiry begins

8Professor Terry Flew, QUT

9

Media policy, regulation and governance

• Media policy: goals and norms that inform and underpin relevant media legislation, and the intentions and instruments associated with shaping the structure and behaviour of actors in a media system;

• Media regulation: operations and activities of specific agencies that have responsibility for overseeing the media policy instruments that have been developed to manage the media system;

• Media governance: totality of institutions and instruments that shape and organise media systems – formal and informal, national and supranational, public and private, large-scale and smaller-scale.

10

Fragmentation in the current classification framework

1. Between the Commonwealth, states and territories

2. Between departments and areas of legislation• ALRC Report (1991) promoted regulatory

harmonisation but:– Failure to reach agreement on “X” classification– Refusal of “R18+”classiifcation of computer games– Different legislative/regulatory bases for

Classification Act and Broadcasting Services Act– Broadcasting Services Amendment (Online

Services) Act 1999 for Internet content

Challenges of 21st century media classification

1. Increased access to high-speed broadband Internet

2. Digitisation

3. Convergence

4. Globalisation

5. Acceleration of innovation

6. Rise of user-created content

7. Greater media user empowerment

8. Blurring of public/private & age-based distinctions

11

A threshold question: incremental change or root-and-branch reform?

12

"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". Professor Catharine Lumby, statement at launch of “The Adaptive Moment: A Fresh Approach to Convergent Media in Australia”, K. Crawford and C. Lumby, Journalism and Media Research Centre, University of New South Wales, 5 May 2011.

Guiding Principles for Reform1. Safeguarding individual rights

2. Broadly reflecting community standards

3. Protection of children

4. Consumer information (incl. complaints)

5. Adaptive regulatory framework

6. Facilitate competition and innovation

7. Clear regulatory purpose

8. Focus on content – platform neutrality

13

Verticals and horizontals

14

Policy implications• Convergence Review – regulatory parity• A logical extension of the ‘layered’ approach is that a policy framework can

develop around a specific service regardless of its mode of delivery. ‘Regulatory parity’ is founded on ideas of fair competition and technology neutrality, which—at their broadest—suggest treating all content equally. The concept of regulatory parity has appeal for many stakeholders although stakeholders may differ on whether it is best achieved by deregulating services or by regulating services that currently have little or no regulation (DBCDE, 2011: 13).

• Classification Review – platform neutrality• with the growing popularity of ‘smart televisions’ and other devices that

enable seamless access to converged media content from a single platform, there is a need to focus classification on the content that is to be classified, rather than the platform from which it is being delivered (ALRC, 2011: 66).

15

Policy InstrumentsPolicy Instrument Advantages Disadvantages

Direct government regulation (‘command-and-control’ regulation)

Legal certainty; enforcement provisions

Knowledge gaps; costs; time; non-compliance

Self-regulation, co-regulation and quasi-regulation

Flexibility; industry knowledge; buy-in; scope to raise standards

Risk of tokenism; govt. avoidance of issues; barriers to entry

Voluntarism Motivated participation Difficult to target outcomes; interest over time

Education and Information Low administrative burden; low cost

Private/public interest tensions

Economic instruments Behavioural influence; incentives; scope for innovation; flexibility

Costs to govt.; inequitable impact; determining outcomes

16

Core elements of ALRC Discussion Paper proposals

• New Classification of Media Content Act• Platform neutrality• Consistent, age-based classifications (C, G, PG8+,

T13+, MA15+, R18+, X18+, RC)• Co-regulatory approaches• Refocusing of role of Classification Board• Training and accreditation framework• Further research into community standards• Referral of classification powers to the Commonwealth

17