The Classification Challenge: Media Content Regulation in an Age of  Convergent Media
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The Classification Challenge: Media Content Regulation in an Age of Convergent Media

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Presentation to Journalism and Media Research Centre, University of New South Wales, May 15, 2012

Presentation to Journalism and Media Research Centre, University of New South Wales, May 15, 2012

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  • technological convergence and associated transformations in media consumption; community expectations about content regulation in a changing media environment; the impact of media on children across a range of media types; future development of the Australian media and digital content industries; the scope to reduce regulatory burdens on relevant industries;classification schemes operating in other jurisdictions; and Commonwealth, State and Territory laws and practices relevant to the classification of media content
  • “Old School” censorship and classification- banning of films (Human Centipede, Human Centipede II, A Serbian Film)Expert panels, appeal mechanisms, community standards- Dealing with material of a physical, tangible nature“New School”Internet content of a criminal nature (e.g. Child sexual abuse material)Fast-moving, global policing, few avenues for appealBlocking may be at service provider material
  • R18+ games consultation received over 58,000 submissions, of which 98% supported introduction of the new category – “Grow Up Australia” campaignSenate Legal and Constitutional Affairs Affairs Reference Committee (Chair Sen. Guy Barnett): Review of the National Classification Scheme: Achieving the Right Balance – extending NCS to art works, outdoor billboards and music videos – little to say about new media – recommended national scheme with abolition of X18+ categoryConvergence Review Committee (Chair Glen Boreham): reviewing “the operation of media and communications legislation in Australia … to assess its effectiveness in achieving appropriate policy objectives for the convergent era” – Final Report presented to Communications Minister, Sen. Stephen Conroy 30 March 2012 – public release expected in mid-late April
  • Heartlands are those areas covered by the Classification Act 1995, and where all content is classified by the Classification Board. This includesFeature filmsDVDsPublications (by referral)Computer games Hinterlands are areas where classification occurs, but through other legislation (Broadcasting Services Act), and either through a different regulatory arrangement (e.g. Co-regulation) or regulatory principle (complaints based)Broadcast mediaOnline contentOnline gamesBorderlands are areas where the NCS does not currently operate, but where discussion has occurred about its potential relevance or applicabilityMobile appsAdvertisingUser-created contentArt worksMusic
  • The National Classification Scheme is flawed, and cannot be sustained in its current form. This is primarily because the scheme has not been successful in achieving a uniform and consistent approach to classification in Australia. Further, the current situation where the National Classification Scheme is loosely paralleled by co-regulatory and self-regulatory systems is far from adequate, particularly given the increasing convergence of media. The Senate, Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme; getting the balance right, June 2011, p. x.
  • A threshold question concerning a National Classification Scheme centred on a Classification of Media Content Act, is the extent to which the Parliament of Australia has legislative power to enact legislation establishing such a framework.The Parliament of Australia has power to make classification laws with respect to content:imported into, or exported from, Australia or dealt with in the course of interstate trade—relying on s 51(i) of the Constitution (the trade and commerce power);sold, screened or distributed online or sent through the post—relying on s 51(v) of the Constitution (the communications power);advocating the doing of a terrorist act—relying on s 51(vi) of the Constitution (the defence power); sold, screened, provided online or otherwise distributed by foreign or trading corporations—relying on s 51(xx) of the Constitution (the ‘corporations’ power); andsold, screened, provided online or otherwise distributed in the territories—relying on s 122 of the Constitution (the ‘territories’ power).The external affairs power contained in s 51(xxix) of the Constitution may also be invoked, for example, with respect to:restrictions on child pornography—recognising Australia’s international obligations under the United Nations Convention on the Rights of the Child; constraints on freedom of expression—recognising Australia’s international obligations under the International Covenant on Civil and Political Rights; andsuppression of obscene publications—recognising Australia’s international obligations under the Convention for the Suppression of the Circulation and Traffic in Obscene Publications.
  • Censorship is used here to refer to the outright banning of media content on moral or other grounds. The primary purpose of classification, by contrast, is to provideprior information to prospective consumers as to the nature of media content. In some instances, classification also entails obligations to restrict access, as with the marking of content which indicates that it is only lawfully available to adults. In other instances, classification may also entail advice as to the suitability of such content to people within particular age groups, or recommendations as to how it should be consumed, particularly by children.The National Classification Scheme has, since the early 1970s, primarily revolved around the principle of classification rather than censorship, although any classification scheme is also likely to involve some censorship, based upon what has come to be known as the ‘community standards’ test. Gareth Griffith has described the distinction in these terms:Prima facie classification implies that nothing is banned [but] only restricted if necessary. Classification has certainly a more neutral flavour than the more pejorative term censorship ... Whereas censorship is suggestive of public order and idea of the public good, classification is associated with the facilitation of informed choice in a community of diverse standards. G Griffith, Censorship in Australia: Regulating the Internet and Other Recent Developments (2002), 3.The ALRC, in the 1991 report Censorship Procedure (ALRC Report 55), made the observation that much of what had occurred since the 1970s has involved classification rather than censorship, and on that basis, recommended renaming the Film Censorship Board as the Classification Board, and the Censorship Review Board as the Classification Review Board:Rather than focusing on preventing material from being disseminated, policy now concentrates more on classifying films and publications into defined categories, with restrictions on dissemination only being imposed at the upper limits of what is considered acceptable by the general community. Australian Law Reform Commission, Censorship Procedure, ALRC Report 55 (1991), [2.6].
  • In an overview of Australian broadcasting and telecommunications regulations undertaken for the Convergence Review, the ACMA (2011) identified 55 ‘broken concepts’ in current legislation, including: the concept of ‘influence’ in broadcasting; the ‘Australian identity’ of media owners’; the concept of a ‘program’ in broadcasting; the distinction between a ‘content service provider’ and a ‘carriage service provider’ in relation to the Internet; regulations specifically applied to activities such as telemarketing or interactive gambling. At the core of these ‘broken concepts’ was the manner in which digital convergence is making media services and content increasingly independent of particular delivery technologies; its central regulatory consequence is that ‘regulation constructed on the premise that content could (and should) be controlled by how it is delivered is losing its force, both in logic and in practice’ (ACMA, 2011: 6).
  • ALRC established as an independent statutory authority in 1975. Part of a national trend towards independent bodies to review/reform the law. Law Reform Commissions also exist at a state level. Other avenues of independent inquiry:Parliamentary CommitteesDepartmental reviewsAd hoc Commissions of InquiryBenchmarks of performance (Laura Barnett, “The Process of Law Reform: Conditions of Success”, Federal Law Review 39(1), 2011Appropriate triggers for action, including terms of referenceReal consultationFocusing on the factsTimely delivery of recommendationsRecommendations – practical and implementable or pushing the envelope?Awareness of impact of recommendations, including economic impact
  • A threshold question concerning a National Classification Scheme centred on a Classification of Media Content Act, is the extent to which the Parliament of Australia has legislative power to enact legislation establishing such a framework.The Parliament of Australia has power to make classification laws with respect to content:imported into, or exported from, Australia or dealt with in the course of interstate trade—relying on s 51(i) of the Constitution (the trade and commerce power);sold, screened or distributed online or sent through the post—relying on s 51(v) of the Constitution (the communications power);advocating the doing of a terrorist act—relying on s 51(vi) of the Constitution (the defence power); sold, screened, provided online or otherwise distributed by foreign or trading corporations—relying on s 51(xx) of the Constitution (the ‘corporations’ power); andsold, screened, provided online or otherwise distributed in the territories—relying on s 122 of the Constitution (the ‘territories’ power).The external affairs power contained in s 51(xxix) of the Constitution may also be invoked, for example, with respect to:restrictions on child pornography—recognising Australia’s international obligations under the United Nations Convention on the Rights of the Child; constraints on freedom of expression—recognising Australia’s international obligations under the International Covenant on Civil and Political Rights; andsuppression of obscene publications—recognising Australia’s international obligations under the Convention for the Suppression of the Circulation and Traffic in Obscene Publications.
  • Censorship is used here to refer to the outright banning of media content on moral or other grounds. The primary purpose of classification, by contrast, is to provideprior information to prospective consumers as to the nature of media content. In some instances, classification also entails obligations to restrict access, as with the marking of content which indicates that it is only lawfully available to adults. In other instances, classification may also entail advice as to the suitability of such content to people within particular age groups, or recommendations as to how it should be consumed, particularly by children.The National Classification Scheme has, since the early 1970s, primarily revolved around the principle of classification rather than censorship, although any classification scheme is also likely to involve some censorship, based upon what has come to be known as the ‘community standards’ test. Gareth Griffith has described the distinction in these terms:Prima facie classification implies that nothing is banned [but] only restricted if necessary. Classification has certainly a more neutral flavour than the more pejorative term censorship ... Whereas censorship is suggestive of public order and idea of the public good, classification is associated with the facilitation of informed choice in a community of diverse standards. G Griffith, Censorship in Australia: Regulating the Internet and Other Recent Developments (2002), 3.The ALRC, in the 1991 report Censorship Procedure (ALRC Report 55), made the observation that much of what had occurred since the 1970s has involved classification rather than censorship, and on that basis, recommended renaming the Film Censorship Board as the Classification Board, and the Censorship Review Board as the Classification Review Board:Rather than focusing on preventing material from being disseminated, policy now concentrates more on classifying films and publications into defined categories, with restrictions on dissemination only being imposed at the upper limits of what is considered acceptable by the general community. Australian Law Reform Commission, Censorship Procedure, ALRC Report 55 (1991), [2.6].
  • In order to better inform itself about community standards relevant to classification, the ALRC commissioned Urbis Pty Ltd to conduct a series of forums to assess community attitudes to content that falls within higher-level classification categories. This involved recruiting participants for a one-day forum where they would view and respond to content that ranged from MA 15+ to RC.The final report, Community Attitudes to Higher Level Media Content: Community and Reference Group Forums Conducted for the Australian Law Reform Commission, can be accessed from the ALRC website.This pilot study was qualitative in nature, involving consultations with a total of 58 participants across four forums, conducted over October–November 2011. Two forums involved community participants and two involved stakeholder representatives and others with an interest in the classification field. The community group (CG) forums involved 30 participants, while the reference group (RG) forums involved 28 participants. Responses between the community groups and the reference groups were broadly comparable.The content that registered the highest levels of offence included both scripted drama and material involving actual criminal activity.The content that registered the lowest levels of offence included material involving drug use and graffiti.. Most of the screened violent material from computer games was not considered to be offensive.Responses to explicit sex and fetish material were broadly similar between the two groups, and varied according to the nature of the material.A majority of participants in both groups found terrorism material offensive.

The Classification Challenge: Media Content Regulation in an Age of  Convergent Media The Classification Challenge: Media Content Regulation in an Age of Convergent Media Presentation Transcript

  • The Classification Challenge:Content Regulation and Convergent Media Professor Terry Flew Creative Industries Faculty, QUT Presentation to Journalism and Media Research Centre, University of New South Wales, 15 May 2012
  • 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 environment2
  • Terms of ReferenceConsider 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 lawscontinue to provide an effective framework for theclassification of media content in Australia The Hon R McClelland MP Attorney-General 3
  • 4
  • Other inquiries• Convergence Review – independent inquiry conducted through DBCDE• Attorney-General‟s public consultation on R18+ games• Review of RC (Refused Classification) category in context of mandatory Internet filtering debates• Parliamentary inquiries into: – cyber safety – Outdoor advertising – National Classification Scheme• National Broadband Network (NBN) as a significant contextual factor 5
  • National Classification Scheme Classification Board: • films • computer games • publications (some) ACMA: • broadcasting • online content Enforcement:Customs: • sale• ‘objectionable material’ • distribution • advertising 6
  • National Classification Scheme • Mobile apps • Advertising • Art works • User created content • Music • Broadcasting • Online content • Online games • Feature films • DVDs • Publications (submittable) • Computer games 7
  • Incremental change or fundamental reform?"Australias media content regulation system is like a bowl of spaghetti thats been putto the back of the fridge and gets dragged out every five years, reheated with additionalsauce, partly eaten and then put back in the fridge for later. Its complex, tangled andfrom a media user point of view its impossible to tell which bit of media contentconnects to which regulatory framework“ (Catharine Lumby). 8
  • History: From Censorship to Classification• S. 51 of Constitution of Australia – C‟wth powers over „postal, telegraphy, telephonic and like services‟ – also trade and commerce (s. 51) and territories (s. 122) powers• Crowe v Graham 1968 – basis for liberalisation in 1970s – from „obscene‟ material to „community standards‟ test• R18 category introduced in 1973• ALRC 1991 Report recommended national classification scheme 9
  • Problems of the current NCS• Absence of R18+ games classification – legislation passed in H of R March 2012• Pervasive “double handling” of content• Intergovernmental Agreement with States and Territories – need for unanimity• Anomalous treatment of content between states and territories – X-rated material• Significant non-compliance with current laws• Vague and expansive RC category• Unclear treatment of online content (sch 7 of BSA)• Lack of clarity in relationship between government agencies eg. Classification Board and ACMA10
  • Context of Media Convergence1. Increased access to high-speed broadband networks2. Digitisation of media products and services3. Convergence of media platforms and services4. Globalisation of media platforms, content and services 11
  • Context of Media Convergence5. Acceleration of innovation6. Rise of user-created content7. Greater media user empowerment8. Blurring of public/private and age-based distinctions 12
  • • „Australia‟s communications sectors are undergoing profound change as a result of convergence. Existing regulatory arrangements built around industry „silos‟ are challenged by new technologies, market structures and business models. In this committee‟s view it is likely that revolutionary change to the existing policy framework will be needed to respond to convergence‟. Convergence Review: Emerging Issues Paper (2011), 11. 13
  • • „New developments do not imply that existing regulations need to extend their coverage over other platforms and services ... [I]t is important that instruments used do not hinder the positive developments and aspects of convergence while also being effective, robust and flexible.‟ (OECD, 2007)• „Nation state governments clearly have a remit to enforce the laws of their country and to protect public policy priorities when it comes to cultural and social parameters. Their ability to enforce this remit is restricted due to the sheer volume of media content as well as the decentralisation and vast number of media producers‟. K Crawford and C Lumby, The Adaptive Moment: A Fresh Approach to Convergent Media in Australia (2011), 40. 14
  • From Silos to Convergence 15
  • Verticals and horizontals16
  • Policy Context: 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, Broken Concepts, 2011: 6). 17
  • The ALRC approach to Law Reform• Building an evidence base• Bias towards public consultation• Role of Advisory Committees• Economic impact• „Law reform is too important to be left to the experts‟ (Justice Michael Kirby, first Chair of ALRC)18
  • Review timeline Commissioner appointed (April 2011) Issues Paper released (May 2011)Industry and stakeholder Formation of Advisory Public submissions Public presentations consultations committee Public consultations Public submissions Advisory Committee meetings Public presentations 19
  • The ALRC Review Process 20
  • 21
  • Leximancer analysis of 2,350 Issues Paper submissions 22
  • A new NCS framework? (Leximancer analysis of Q1 – Issues Paper) 23
  • Net Libertarianism24
  • 25
  • „In the context of media convergence, there is a need todevelop a framework that focuses upon media contentrather than delivery platforms, and can be adaptive toinnovations in media platforms, services and content ...and there is a case for a new Act governingclassification, as well as revised regulatory arrangements.The costs and regulatory burden of the currentclassification framework align poorly to communitystandards and expectations. There is too much top-downregulation of some media content and platforms, includingdouble handling of the same content, while regulatoryresponsibilities are unclear in relation to other media. ALRC Discussion Paper, September 2011: 44.. 26
  • Principles of the current National Classification Code• adults should be able to read, hear and see what they want;• minors should be protected from material likely to harm or disturb them;• everyone should be protected from exposure to unsolicited material that they find offensive;• the need to take account of community concerns about: – depictions that condone or incite violence, particularly sexual violence; and – the portrayal of persons in a demeaning manner. 27
  • Proposed Guiding Principles for Reform1. Australians should be able to read, hear, see and participate in media of their choice;2. Communications and media services available to Australians should broadly reflect community standards, while recognising a diversity of views, cultures and ideas in the community;3. Children should be protected from material likely to harm or disturb them;4. Consumers should be provided with information about media content in a timely and clear manner, and with a responsive and effective means of addressing their concerns, including through complaints; 28
  • Proposed Guiding Principles for Reform5. The classification regulatory framework needs to be responsive to technological change and adaptive to new technologies, platforms and services;6. The classification regulatory framework should not impede competition and innovation, and not disadvantage Australian media content and service providers in international markets;7. Classification regulation should be kept to the minimum needed to achieve a clear public purpose; and8. Classification regulation should be focused upon content rather than platform or means of delivery. 29
  • History: From Censorship to Classification• S. 51 of Constitution of Australia – C‟wth powers over „postal, telegraphy, telephonic and like services‟ – also trade and commerce (s. 51) and territories (s. 122) powers• Crowe v Graham 1968 – basis for liberalisation in 1970s – from „obscene‟ material to „community standards‟ test• R18 category introduced in 1973• ALRC 1991 Report recommended national classification scheme 30
  • Problems of the current NCS• Absence of R18+ games classification – legislation passed in H of R March 2012• Pervasive “double handling” of content• Intergovernmental Agreement with States and Territories – need for unanimity• Anomalous treatment of content between states and territories – X-rated material• Significant non-compliance with current laws• Vague and expansive RC category• Unclear treatment of online content (sch 7 of BSA)• Lack of clarity in relationship between government agencies eg. Classification Board and ACMA31
  • Context of Media Convergence1. Increased access to high-speed broadband networks2. Digitisation of media products and services3. Convergence of media platforms and services4. Globalisation of media platforms, content and services 32
  • Context of Media Convergence5. Acceleration of innovation6. Rise of user-created content7. Greater media user empowerment8. Blurring of public/private and age-based distinctions 33
  • Convergence Review‘Existing regulatory arrangements built aroundindustry ‘silos’ are challenged by newtechnologies, market structures and businessmodels’ 34
  • The ALRC model 35
  • 36
  • 1. Platform-neutral regulation• Common classification rules for the same/similar media content across platforms, services and devices• Single set of classification categories and criteria, informed by community standards 37
  • 38
  • Commonwealth scheme• Responding to the internet overtaking the entire media content landscape• Replacing current classification cooperative scheme with single Commonwealth Act• Many recommendationscan be implementedwithout a new Act
  • 40
  • A single regulator• Bringing together powers currently with: – Attorney-General’s Department – Classification Board – DBCDE – ACMA – Customs
  • 42
  • Clear scopeWhat must be classified:• Computer games MA15+ or higher, feature films and TV programs – Likely to have a significant Australian audience – Made and distributed on a commercial basis 43
  • Clear scopeBy whom• The Classification Board as ‘benchmarker’: – feature films for Australian release – computer games likely to be classified MA15+ or above• Industry: – Most other content (e.g. television programs, games below MA15+, most online content) – but how? 44
  • The question of adult content• Restrict access obligation for R18+ and X18+ content across media platforms• „Reasonable steps‟ may vary according to type of content provider (e.g. commercial/non-commercial)• Range of provisions for Regulator in responding to failures to restrict access• Promotion of complementary cyber-safety initiatives• Remove all mandatory restrictions on MA15+ content 45
  • 46
  • Co-regulation• Authorisation of industry classifiers• Recognition of rigorous classification systems developed in other jurisdictions – e.g. PEGI, ESRB for games• Industry ‘buy in’/regulator as ‘back stop’ 47
  • Smarter Policy (APSC)Policy Instrument Advantages DisadvantagesDirect government regulation Legal certainty; Knowledge gaps; costs;(‘command-and-control’ enforcement provisions time; non-complianceregulation)Self-regulation, co-regulation Flexibility; industry Risk of tokenism; govt.and quasi-regulation knowledge; buy-in; avoidance of issues; scope to raise standards barriers to entryVoluntarism Motivated participation Difficult to target outcomes; interest over timeEducation and Information Low administrative Private/public interest burden; low cost tensionsEconomic instruments Behavioural influence; Costs to govt.; incentives; scope for inequitable impact; innovation; flexibility determining outcomes 48
  • 49
  • Regulatory focus• For adult content shift focus to restricting access – Restrict access obligation for R18+ and X18+ content across media platforms – ‘Reasonable steps’ may vary according to type of content provider• Promotion of complementary cyber-safety initiatives 50
  • Prohibited content• Replacing „Refused Classification‟ category• Narrowing of scope – Criminal depictions – „Abhorrent‟ content – Serious crime – Material on Interpol „black list‟• Not applied to: – Fetish activities – „Offensive‟ material involving consenting adults – Non-serious crime (e.g. graffiti, shoplifting)
  • Net effect1. Consistent rules for media content2. Framework that can be adaptive to technological change and media convergence3. Regulatory focus shifts from platform basis to areas of greatest community concern4. Promoting greater industry engagement with classification
  • Net effect5. Ongoing regulatory oversight to safeguard community standards6. Reducing overall regulatory burden on industry7. Harmonising classification laws across Australia, to benefit of consumers and content providers
  • 54
  • Further questions1. In a convergent media environment, how would you identify what constitutes sufficiently ‘big media’ to warrant regulation without impinging upon rights to communicate and participate among the community more widely?2. In a convergent media environment, does it still make sense to adhere to a general principle that “the Internet must not be regulated”, given that “the Internet” clearly incorporates quite mainstream content and channels?;3. How can nation-state regulations be applied to global media corporations and media platforms (e.g. Apple, Google), given that media is not long territorially defined?
  • Further questions4. To what extent can various forms of “soft law” operate as a means of ensuring that regulations remain flexible and adaptive in light of rapid and unanticipated technological and market changes?5. What are meaningful forms of enforcement of national laws and regulations in a globally networked media environment?6. How would one measure media influence in a convergent media environment?7. Is the concept of ‘community standards’ still a relevant variable in considering media regulation? In its absence, are we effectively saying that the state has no role in the regulation of media markets?