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Rethinking Regulatory Design: the Australian National Classification

Scheme Review

Professor Terry Flew

Australian Law Reform CommissionDigital humanities, digital media, digital society panel

Knowledge/Culture/Social Change Conference,

Centre for Cultural Research, University of Western Sydney, 7 November, 2011

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The National Classification Scheme

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

Enforcement:• sale• distribution• advertising

Customs:• ‘objectionable material’

ACMA:• broadcasting• online content

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Challenges

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Neo-liberalisation of media and cultural policy?

Media and cultural policy pre-neo-

liberalism

Media and cultural policy post-neo-

liberalism

Nation-states Global markets

State-subsidized cultural organizations Commercial convergent enterprises

Policy as servicing citizen interests Policy as serving industry interests

Commitment to the public good Commitment to ‘wealth creation’

Multi-disciplinary socio-cultural projects Primary focus on economics and market

development objectives

Cultural policy studies Creative industries

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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

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The Hon R McClelland MPAttorney-General

Terms of Reference

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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

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

computer games – July 2011 SCAG

• DBCDE accountability review for ISP filter (Refused Classification)

• Convergence Review– communications and media services that are available to

Australians should reflect community standards and the views and expectations of the Australian public; and

– Australians should have access to the broadest range of content across platforms and services as possible.

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Leximancer analysis of all 2,452 submissions

Games: 98% connectivity49% relevance

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Q1: a new framework?

Games: 30% relevance

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Q2: primary objectives of an NCS

Games: 100% relevanceR18: 36% relevance

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Access to what content, if any, should be entirely prohibited online

(Q24)?

None: 13% connectivityNo content; 19% relevance

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Does the current scope of the Refused Classification (RC) category reflect the content that

should be prohibited online (Q25)?

Broad: 68% likelihoodScope: 47% likelihoodCurrent: 42% likelihoodGames: 44% likelihood

No: 33% connectivityYe: 2% connectivity

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Wicked Problems

• Difficult to define• Disagreement about problem, as well as causes/solutions• Interdependencies and conflicting goals• Possible unforeseen consequences• Shifting evidence base• Absence of clear solutions• Problem is socially complex (complex systems theory)• Problem sits across multiple agencies/jurisdictions• Solutions may point towards behavioural change• Some wicked problems may be new (e.g. climate change) but

others are not (e.g. indigenous disadvantage)

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Smarter PolicyPolicy 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

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Broken Concepts• “Digitalisation has broken the nexus between the

shape of content and the container which carries it … Legacy delivery arrangements followed service-specific networks and devices. Technological change in the form of digital transmission systems means that service delivery is now largely independent of network technologies. This can be conceived and depicted as a shift from the vertical, sector-specific approach to the horizontal, layered approach” (ACMA, 2011: 6).

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Broken concepts in media classification

• Platform-based distinctions in treatment of content

• “Reasonable adult” test

• Clear producer/consumer distinction – rise of user-created content

• Scope and treatment of “higher-level” classifications (R18+, X18+, RC)

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Verticals and horizontals

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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).

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