New Communications Legislation Amendment to impose obligations on commercial providers of non-broadcast media content
09 July 2007On 20 June, the Communications Legislation Amendment (Content Services) Bill 2007 was passed by Federal Parliament. When it comes into operation, the new law will impose obligations on commercial providers of non-broadcast media content, including content supplied over mobile telecommunications networks and live streamed material.
Regulation of media content under existing Australian laws
Media content published in Australia is regulated to ensure that community standards are respected and children are protected from potentially harmful material. Television and radio broadcasts are regulated under the Broadcasting Services Act 1992 (Cth) (BSA) and industry codes of practice, enforced by the Australian Communications and Media Authority (ACMA).
Since 1999, media content published on the internet has also been regulated by the ACMA under the BSA and industry codes of practice. In particular, Schedule 5 of the BSA establishes a co-regulatory regime governing Internet Service Providers and Internet Content Hosts.
Evolving technology has exposed gaps in the current regulatory regime
A 2004 review of the operation of Schedule 5 identified two principal deficiencies1:
- a failure to regulate media content delivered to ‘convergent devices’—such as mobile telephones and hand-held computers, and
- a failure to regulate ‘ephemeral content’—such as live streamed content and interactive chat services. The existing legislative regime for internet content regulation is limited to material stored for access by end-users on demand.
The Communications Legislation Amendment (Content Services) Bill 2007
To address these issues, the Federal Parliament has passed the Communications Legislation Amendment (Content Services) Bill 2007 (Bill). The Bill will soon come into operation, inserting a new Schedule 7 into the BSA. Schedule 7 establishes a regulatory regime for non-broadcast media content that is modelled on the existing Schedule 5 but is broader in scope—applying to all ‘Commercial Content Service Providers’ (CCSPs).
CCSPs are businesses operating for profit, supplying text, audiovisual or other media content, for a fee, via telecommunications networks, with the exception of broadcasting, datacasting, voice call, email and SMS/MMS service providers. Businesses supplying stored or live media content (including internet browsing, chat services and re-transmission of TV broadcasts) over 3G mobile telecommunications networks for a fee will be subject to Schedule 7.
Internet Service Providers will continue to be regulated by Schedule 5 of the BSA.
Principal features of the new regulatory regime
Like Schedule 5, Schedule 7 will declare content that is refused classification or classified X18+ as ‘prohibited’. R18+ and MA15+ content will be ‘prohibited’ unless subject to appropriate access restrictions.
However, Schedule 7 will not require mandatory classification of content delivered to convergent devices, on the grounds that that would be unreasonably burdensome. Rather, if content has not been classified but there is a ‘substantial likelihood’ that it could be ‘prohibited content’, a CCSP will need to obtain the advice of a trained content assessor on the likely classification of the material before providing it to end-users. Special rules apply to live content, which may not be supplied without the advice of a trained content assessor unless there is ‘no reasonable likelihood’ it will be prohibited content.
Implications for Commercial Content Service Providers
Once the new Schedule 7 comes into operation, CCSPs will be required to comply with notices from the ACMA requiring the removal of content that is ‘prohibited’ or ‘potentially prohibited’ (meaning that there is a ‘substantial likelihood’ the content is ‘prohibited’). Non-compliance may result in a fine of up to $11,000 per day for an individual or $55,000 per day for a corporation.
CCSPs will need to consider the likely classification of all content they intend to provide and determine whether Schedule 7 requires that it be pre-assessed by a trained content assessor. Industry will be responsible for meeting the costs of training content assessors and engaging their services.
Industry will also be required, within six months of Schedule 7 coming into operation, to publish codes of practice governing CCSPs. If codes are not developed, the ACMA may publish mandatory standards instead.
It is intended that complaints regarding content provided by CCSPs will be handled by industry in the first instance. Codes of practice will need to establish complaint handling mechanisms and provide for unresolved complaints to be referred to the ACMA.
The Internet Industry Association has established a Taskforce to develop an appropriate code.
Footnotes
- Australian Government, Department of Communications, Information Technology and the Arts, Report of the Review of the Operation of Schedule 5 to the Broadcasting Services Act 1992. Tabled in Federal Parliament 13 May 2004 (see the Final Convergant Devices Report).
This article was written by Duncan Giles, Special Counsel, and Andrew Rankine, Graduate of the Sydney Corporate group.
For more information please contact
Title : Special Counsel
Office : Sydney
Phone : +61 2 9225 5954
Fax : +61 2 9322 4000
Email : duncan.giles@freehills.com
