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4. Content of communications
4.1 Governing principles
4.2 Australian Content
4.3 Protection of children
4.4 Protection of general public interests
4.5 Who should be responsible, and for what kinds of content?
4.6 Content services
4.7 Content channels, platforms and networks
4.8 Diversity of content channels
4.9 Problem-solving and consumer complaints
Note: what this heading covers. This heading covers a raft of issues which challenge regulators around the world, namely what sort of rules can meet the conflicting social and cultural needs of what is these days called ‘content.’ Some of the issues directly affect content. They are as diverse as supporting Australian content on television, protecting children on social networking websites, and providing clear communication for disabled users.
Many other issues affect the structure and the channels by which people receive content. For example, should broadcasters be licensed, and should auctions be the main way to select them? What principles should govern the diversity of communications channels in any area of the country? How different should be the status of public and community broadcasters?
4.1 Governing principles
• Recognition of human rights and freedoms, including ratified international treaties
Source: Australian Labor Party
When it was an opposition party in 2007, the Australian Labor Party published a national platform called ‘Respecting Human rights and a fair go for all’. It included these words:
Labor will initiate a public inquiry about how best to recognise and protect the human rights and freedoms enjoyed by all Australians.
These inalienable rights also carry with them a responsibility to respect the individual and collective rights enjoyed by others and need to protect and promote institutions and practices fundamental to an equal, just democratic and tolerant society.
Labor will establish a process of consultation which will ensure that all Australians will be given the chance to have their say on this important question of our democracy. Labor will engage with Australians in deciding which democratic, industrial and community rights recognised in international treaties and conventions ratified by Australia should be protected. Any proposal for legislative change in this area must maintain sovereignty of the Parliament and shall not be based on the United States Bill of Rights’.
That process of recognising human rights would be likely to include rights affecting communications, such as freedom of speech and privacy. Notably, legislative change would be through specific legislation. This approach could, if incorporated in a future Communications Act, could materially change the way in which decisions were made, and how the Act was interpreted by the courts.
[Ref: ALP, 2007, National Platform, Chapter 13, Respecting Human Rights and a Fair Go for All, viewed 24 July 2008, http://www.alp.org.au/platform/chapter_13.php#13principles]
• Recognition of free speech and communications in the objects of broadcasting laws
Source: Productivity Commission
In its report on broadcasting in 2000, the Productivity Commission said:
The benefits of independent and open media in a democratic society, and the importance of the flow of information, ideas and debate should be recognised among the general objectives of the BSA [Broadcasting Services Act]’. It said that ‘a further objective “to promote freedom of expression” should be added to the objectives’ at the beginning of the Act. That proposal would presumably extend to a Communications Act in 2010 or later.
The report also said that ‘controlling the potentially harmful consequences of media influence must be weighed again the benefits of independent and open media in a democratic society,’ and that ‘as new media proliferate and media organisations converge with other businesses, regulatory restrictions on ‘freedom of expression’ will have an increasingly important place in media law.
[Ref: Productivity Commission, 2000, Report into Broadcasting, viewed 24 July 2008, http://www.pc.gov.au/inquiry/broadcasting/docs/finalreport]
• Content regulation should be consistent, regardless of the medium of delivery
Source: Australian Subscription Television and Radio Association (ASTRA)
ASTRA (Australian Subscription Television and Radio Association) considers that, in principle, content regulation should be consistent, regardless of medium of delivery. ASTRA does however understand, and indeed recommends, that different regulatory approaches be adopted when content providers (such as free-to-air broadcasters) are protected or given distinct competitive advantages by Government for various purposes. It is also an important that adults are able to watch what they want and that children are protected from inappropriate content. It can be more harmful than good to prohibit certain types of content from being received via legitimate, regulated platforms which offer appropriate access restrictions, when prohibited content is easily made available through other means to address unmet demand.
ASTRA’s members, which include subscription television platforms, program channel providers and communication companies, offer regulated broadcasting services all of which have as a feature disabling devices (usually achieved through a pin coded access) to protect children from harmful content. However, it remains the case that R18+ content is permitted only on narrowcast services and X18+ content is not permitted at all. So despite the regulated infrastructure offered by ASTRA’s members, the demand for adult content continues to be met in Australia via unregulated services (broadcasts originating off shore and delivered via satellite) which lack important child protections and regulator scrutiny.
ASTRA is of the view that if Government wants to regulate content on mobile phones and streamed content on the internet, an appropriate way to achieve this is via amendments to Schedule 5 of the Broadcasting Services Act 1992 (which sets up a system for regulating certain aspects of content of the content of online services). The current ‘take down’ regime works effectively and provides a balanced regulatory approach. It should be used as a model for this additional content regulation. ASTRA also believes that:
- Classification and assessment of content should use existing rules and processes.
- The model of self-regulation, via industry codes (as opposed to immediate involvement by the regulator) should be applied. To that end, where existing codes and regulation exist they should continue to operate; and care should be taken not to duplicate this regulation. This also assists to mitigate the financial costs created by regulatory compliance.
- Liability should be based on the degree of control a carriage service provider has over the content on its services. Offences where proof of a fault is not required should be avoided because civil offences offer an appropriate method of recourse.
ASTRA’s view is consistent with that of other industry bodies.
• National broadcasters should receive more funding for new channels only where there is clear market failure
Source: Australian Subscription Television and Radio Association (ASTRA)
The current national broadcasters (ABC and SBS) have a valuable role to play in providing Australians with a common and universally available media service, funded by all Australians through their taxes.
That role however does require careful examination in the current and evolving media landscape, where Australians are served by many and varied services. In the current landscape it is important to consider what the focus of the broadcaster should be. By way of example, when each of the ABC and SBS commenced broadcasting there were no subscription television (broadcast or narrowcast), open narrowcast or community television services for Australians.
The current charters of both organisations remain instructive. Click here for current ABC and SBS charters. Currently, the ABC must take account of the commercial and public (now referred to as community) sectors of the Australian broadcasting system in the provision of its services. The SBS must contribute to the overall diversity of Australian television and radio services by extending the range of these services.
There is obviously little point in the Australian government dedicating the collective resources of its people via taxation towards services that are already provided by the marketplace. There is instead a valid and valuable cultural contribution to be made by Government when market failure of one form or other has occurred.
A key rationale for public funding of much of the programming and operations of the national broadcasters is that there is ‘market failure’ and that without public funding certain services would not be provided by the market. In a digital environment, other broadcasters, such as subscription broadcasters are in a position to provide diverse and innovative content services. Already today we can also see numerous examples of such content being offered to consumers via sites such as YouTube or the many video podcasts available, much of it advertiser-supported rather than subscription based. The Government’s national broadband network (NBN) initiative will extend the ease of access to such services to even more Australians.
Note: This proposal was part of ASTRA’s submission in response to the Department of Broadband, Communications and the Digital Economy’s 2008 discussion paper titled ABC and SBS: Towards a digital future.
4.2 Australian content
• A sovereign-style fund to support Australian film, TV and multimedia content
Source: Maureen Barron, Media and Entertainment Consultant
In the future audiovisual environment, there should be a single, integrated approach to Australian screen content including, specifically, a sovereign-style investment fund.
The issue
Availability of adequate Australian content for Australian audiences must be an objective of any new Act. Australians need to see their own stories – to access them by the most prolific and widely available and influential media, television/film/online.
Future communications policies will be largely ineffective if attention is not paid to the content that is available to Australians over new and legacy infrastructure and services; it has become a truism that content drives services.
A limited scale local market means that producers do not have a sufficient number of sources of finance for a diverse range of product. Australian produced local content needs support to ensure it is made, in reasonable quantities, to a reasonable standard, with regularity and seen (able to be accessed) by Australians.
Support generally takes one of three forms: direct subsidy, regulation, indirect support (taxation incentives and rebates; government backed production such as ABC and SBS and the National Documentary Programme). All should continue to play a role, and the balance needs to be maintained and reviewed as an integrated package over time.
Past policies and support have confirmed that Australians can make high quality programmes, Australians want to watch local programming; local programming can sell overseas; local sources of finance are insufficient to ensure access to local content without government support; policies require targeting over time to areas of need and effective delivery; government achieves rewards from this support in cultural objectives, awareness of Australia locally and internationally and the contribution of cultural and creative industries to the economy.
Direct support by a screen investment fund
One powerful component of future policy would be a screen investment fund, based on the sovereign funds established by various countries to invest in important national assets. The fund would provide venture capital for production businesses, production support and cashflow for taxation rebates where this is uneconomic for the private sector, and marketing. A small, focussed team of experienced professionals could manage the fund; management would take responsibility for their choices. The fund would be required to support the production industry on a sustainable basis by funding a mix of experienced and emerging practitioners to finance projects and establish and operate businesses.
A noted area of market failure is in film and media development, due to the risks. A separate part of the fund would support project-by-project and slate development, irrespective of the ultimate market outlet for projects – cinema/TV/ online/mobile and handheld/ game console – and share in rewards.
Continuing industry input would be vital for the success of the fund; it would establish a select number of small professional advisory groups – digital, finance and investment, marketing and business development/venture capital – to communicate with a broad range of stakeholders.
Fund staff would work in small teams across development, production and marketing, linking programs to co-ordinate program delivery and use staff expertise.
Recoupment structures would provide returns to producers from early revenues to build sustainable businesses.
Quantum would be around A$250M for each of 3 years; a review 6 months from the expiration of that cycle would set the terms of another 3-year cycle.
Linked policies: quotas, tax and treaties
An investment fund would not on its own be able to effectively meet the public and economic demand for stimulating a supply of Australian content. It would be effective only as part of a suite of integrated policies, including continued content quotas/expenditure requirements for free and subscription television, with stepped introduction of Australian content requirements on broadband services.
Similarly, a form of taxation rebate for expenditure on Australian and location programming would need to continue. One option to retain the value of the rebate could be linking the rebate to CPI, or some other automatic adjustment to equal world’s best practice and support the local industry’s competitive position.
Other supporting policies would include active exploration of additional co-production treaties for film/television/new media (rather than the current reactive process), to expand this programme and review the effectiveness of existing treaty arrangements, some of which have not been utilised.
• Australian Content ‘tax offset’ funding: practical reforms to produce an integrated approach
Source: Australian Subscription Radio and Television Association (ASTRA)
ASTRA is supportive of an ‘offset’ approach to fund Australian content, but believes that there are a number of shortcomings in relation to the use of the offset. There are a number of changes that could be made that are associated with production financing, including: the differentiation between film and television; the eligibility test for ‘Australian’; regulation ‘silos’; and the cashflow cycle.
A guiding principles should be a consistent offset to Australian content, regardless of format or distribution mechanism for delivering that content.
It remains unclear why there is a large difference in the percentage offset offered to television productions when compared to theatrical film productions. Past funding priority models from government agencies suggest an historical imbalance against television content. This was been perpetuated in the July 2008 release of Screen Australia’s Program Guidelines They cover development support, production financing and Indigenous programs. In both the Film Tax Offset and direct funding mechanisms, television production appears to be undervalued.
Television production is the core element of the production industry which provides skills, businesses and training for all aspects of the industry. Both film and television remain open to fluctuating trends of success and failures; and a long-term strategic approach to funding should acknowledge this. Further, the disparity between the film and television industries fails to acknowledge the emerging reality of an increasingly shared number of key elements above and below the line, intertwining the two ‘industries’ such that they effectively form a single sector within the production industry.
In past decades, the quality of Australian cinema, both from a production and artistic standpoint, greatly exceeded that of television. However, in part because of the risks taken by subscription television in commissioning productions such as Love My Way, the quality of Australian television production is now at least on par, and in many cases exceeds, that of theatrical releases, which are now becoming more the domain of smaller, independent films made on tight budgets.
As a result of the risks taken by broadcasters, television drama is currently being celebrated and perceived as ‘strong’ and in the midst of a renaissance, whereas the film sector is seen to be relatively ‘unsuccessful’ when compared to television. However in the past during a wave of local and international hits, the film sector has been perceived to be flourishing. Even the release of big-budget films such as Australia does not guarantee success or critical acclaim.
The point is that no part of the film and television production industry is necessarily assured and that a long term, even-handed approach to support for both parts of the industry is recommended.
ASTRA notes and supports the views expressed by the published Premium Movie Partnership submissions (http://www.screenaustralia.gov.au/new_directions/DPG/DPG_documents/PMP_comments.doc) with respect to the strengthening of the television series drama sector; and in turn this sector’s ability to provide a resource from which the feature film sector could draw and benefit in terms of skills transfer, training and continuity of employment. These are three specific reforms:
Streamline the ‘Australian’ test
ASTRA notes that government agencies currently have different eligibility tests to determine what is considered an ‘Australian’ program or production.
ASTRA has consistently made the point that having multiple tests for what is considered ‘Australian’ is not helpful or practical given that an increasing number of productions are likely to need to meet tests established under Division 10BA and 10B of the Tax Act, and also by the Australian Communications and Media Authority (ACMA). The scenario could arise that the ‘Australian’ test is met for the broadcast but not for the production of a program, and vice versa.
ASTRA is of the view that once a production meets one test, it should automatically meet the other – thereby avoiding any potential for an inconsistent finding.
Regulation ‘silos’ should be merged to achieve collaborative financing arrangements
The nature of the current regulatory environment is that discrete regulation is applied to: subscription television; commercial television; and film and television production development and funding. Consequently, it can be difficult to allow the various pools of finance available to production to work collaboratively to assist production resourcing, given the often competing outcomes required of the completed production.
This prevents what would otherwise be a flexible, rational market place from operating to achieve collaborative financing arrangements for the film and television community. The current situation effectively limits the type of content produced and available to Australians.
An example of this is in joint commercial television/subscription television projects. The established and accepted windowing of productions across the world is that subscription television receives a first window before the production moves to the broader commercial television platform. However, the regulatory requirement for commercial television in Australia to have first-run content to meet their obligations effectively flips an otherwise optimal market situation on its head. The result is that subscription television receives the second-content run and the market is distorted. As a consequence of this requirement, subscription television operators and channels have taken to financing productions on their own to ensure that they receive a first, if not sole, window for productions.
While this has some far reaching policy implications for broadcasting, for the sake of a strong television production industry and marketplace, this is an important dialogue to commence.
Greater flexibility is required for producers through the Film Tax Offset to improve cashflow
ASTRA, like other film and television industry participants, supports the need to revisit restrictions that currently exist as to when the offset payments become accessible to the producer. Given the production cycle, the high cost of finance and current parameters as to when funding is available, it is of concern to ASTRA that the current regulation will (if not already) encourage ‘bunching’ of productions and discourage a slate of production dispersed across the full year. This then creates implications for resourcing and employment.
Without reform, productions will continue to be timed to complete so that a tax return can be lodged and a refund issued in the shortest possible time. In order to address this, ASTRA proposes greater flexibility in the receipt of payments available to producers through the Film Tax Offset such as quarterly deadlines or rolling return collection and offset processing throughout the year.
4.3 Protection of children
• Clean feed internet service for homes, schools etc
Source: Australian Labor Party
In 2007 the Australian Labor Party released a policy plan for cyber-safety for children. It proposed: a Youth Advisory Group, further research into where to target funding and policy, a permanent Joint Parliamentary Standing Committee to investigate and report on cyber-safety in Australia and also the following:
Provide a mandatory ‘clean feed’ internet service for all homes, schools and public computers that are used by Australian children. Internet Service Providers (ISPs) will filter out content that is identified as prohibited by the Australian Communications and Media Authority (ACMA). The ACMA ‘blacklist’ will be made more comprehensive to ensure that children are protected from harmful and inappropriate online material.
Provide parents, teachers and children with up-to-date, comprehensive and age-appropriate online cyber-safety resources and assistance.
[Ref: Labor’s Plan for Cyber-safety, 2007, viewed 24 July 2008, http://www.alp.org.au/download/now/labors_plan_for_cyber_safety.pdf]
• End-user filtering and parent education the best protection
Source: NSW Council for Civil Liberties
The NSW Council for Civil Liberties has argued that filters on end user devices are the best method for filtering Internet content for children. A 2007 submission said:
NSWCCL believes that the government’s money would be best spent on educating parents about how to obtain and configure Internet filters. The government could sponsor face-to-face and online seminars to inform parents how to use the technology.
Filtering on end-user devices is the best solution because that is where filtering is most configurable for the age of the end-user. Filtering can be re-configured as a child matures. If parents are concerned about their children watching Big Brother Uncut on the Internet, then the child protection Internet filter can be configured to block the Big Brother site. Inevitably, children will become adults and will be able to choose for themselves what they read, hear and see’.
The submission highlighted that filtering is now built into modern operating systems, free of charge, is configurable and able to be password protected by parents.
[Ref: New South Wales Council for Civil Liberties, 2007, Submission to Senate Environment, Communications, Information Technology and the Arts Committee the Inquiry into the provision of the Communications Legislation Amendment (Content Services) Bill 2007, viewed 24 July 2008, http://www.aph.gov.au/senate/committee/ecita_ctte/completed_inquiries/2004-07/contentservices/submissions/sub03.pdf]
• Remove political, sectional input from censorship decisions
Source: Based on interview with Malcolm Colless
It is increasingly common for issues about community standards on the Internet or television to be politicised, and dominated by frenzied controversy. Whilst public input and discussion are valuable, discussion is often dominated by political and sectional groups trying to gain publicity, or impose their own views. This often over-rules genuine community standards and opinions held by most citizens. There should be a package of changes to de-sensationalise censorship debates, and to give actual community standards of the whole, or at least the majority, more recognition. Changes would include:
reverse the trend to place bodies dealing with censorship, such as the current ACMA and OFLC under control of the executive government
oblige those bodies to regularly survey the community on community standards about obscenity, violence, portrayal of sex and similar issues
oblige them to regularly report to the public and the Parliament on community standards surveys
require them to consider broad community standards in priority to views of individuals and organisations when making censorship decisions
[Source: Malcolm Colless, interviewed by Network Insight July 2008]
• Individual responsibility supported by public education and community dialogue is required
Source: Based on interview with Malcolm Colless
While the Internet cannot exist without some type of guidance we seem to have got into the position where the main responsibility for children is not in the home, where it should be, but rather the debate is controlled by vested interest groups and the government.
Public education as well as community dialogue is required in relation to issues regarding content and control. For example, the public should be informed that if you are going to buy a computer for your children, you, as an individual, have the ability to block out offending material.
If content is not illegal and the public do not like what they see, then they can make the personal choice to turn it off. There has to be the intent to corrupt as opposed to offend. A mature community does not need a nanny state making moral judgements on its behalf.
[Ref: Malcolm Colless, interviewed by Network Insight July 2008]
4.4 Protection of general public interest
4.4.1 Public safety and defence
4.4.2 Other interests
Note on what this heading might cover. This heading is a fall-back to catch other interests apart from those which have their own headings, namely: children (a universally-recognised category where some protection, legal or not; public safety and defence. There used to be other categories of interests requiring censorship such as blasphemy laws, and sedition laws going beyond public safety and national defence. Some people may wish to propose protections for adults with mental problems whose interests would not be covered by the protection for children. Some may wish to propose restrictions on portrayal of other issues such as methods of suicide or drug-taking. The matrix is of course open to all proposals, but we did not wish to create special headings unless there are people who argue for categories going beyond the two basic headings.
4.5 Who should be responsible, and for what kinds of content?
Note on what this heading covers. In the last decade, all national governments, regardless of their politics, have struggled to create consistent principles about responsibility for newer kinds of communications content. In the 1980s, there was a consensus that traditional telephone conversations needed minimal, if any, control. At the other end of the spectrum was television broadcasting: a high-impact services reaching the whole population, seen as requiring the most regulation.
There are now dozens of services which are hard to place if conventional ways of characterising services are used. A few obvious examples are: user-generated content such as text in a blog, a personal page on YouTube, behaviour of an avatar in Second Life, a movie streamed by a telco to a mobile device, and a Skype video call.
• User-generated content not to be regulated like broadcasting or other media
Source: Microsoft and DMG Radio
In 2007 Microsoft highlighted what it saw as the international trend to avoid burdening user-generated content (UGC) with regulation, pointing to the approach of the European Commission (EC) as an example. It said that the EC had agreed to limit the scope of the definition of audiovisual media services.
The issue arose in discussion of the Commonwealth Content Services Bill 2007, which later became law. It said that the intrusion of the Bill into UGC was a significant departure from international approaches. Microsoft said that to ensure consistency with the EC, the Bill should have been amended to introduce a 'user generated content' exception to the definition of 'content service' so that all content substantially generated by an end user of a content service would be excluded from regulation.
DMG Radio argued similarly to the same parliamentary committee considering the Content Services Bill that UGC should be exempted. It said that because commercial radio broadcasters do not control UGC, any requirements for vetting of that content before going to air would lessen their ability to communicate with users live and in real time.
[Ref: The Standing Committee on Environment, Communications, Information Technology and the Arts Inquiry into the Communications Legislation Amendment (Content Services) Bill [Provisions] Report, 2007, viewed 24 July 2008, http://www.aph.gov.au/senate/committee/ecita_ctte/contentservices/report/report.pdf]
• Online services that publish information provided by others should be immune unless notified that particular content may cause loss
Source: Patrick Fair
The Broadcasting Services Act currently provides a take down regime and conditional immunity from civil or criminal liability for ‘Internet Content Hosts’. Future laws should give more protection to publishers than the current Internet Content Host arrangements in Australia. The protection should be expanded along the lines of the corresponding US law, which gives immunity to providers and users of an 'interactive computer service' who publish information provided by others. Under s 230(c)(1) of the US Communications Decency Act 1996, no such provider or user is to be liable as the publisher or speaker of information provided by another information content provider.
This change towards the US approach would have a number of potential benefits including:
(a) It would encourage free speech by allowing online forums, blogs, message boards and other user generated content sites (UGC) to operate without potential liability for the actions of contributors. It would eliminate the need for them to monitor or censor the contributions of participants.
(b) It would allow the Internet to present UGC openly and "for what it is worth" in much the same way statements made at a public meeting receive special status protection from defamation action. The special status of public meetings in defamation law recognises the importance of free and open debate and also that statements that are made in argument may be corrected or contradicted. The potential for correction or contradiction provides a better remedy than legal redress.
(c) Potentially adverse consequences will be moderated by the desire of service providers to provide a safe and responsible community to users perhaps enhanced by continuation of the existing takedown notice procedure.
[Ref: Patrick Fair, interviewed by Network Insight in June 2008]
• Recognise ‘broad-band-casting’ and Internet trends in coherent convergence policy
Source: Vicki MacLeod, Principal, MacLeod Consulting
As the previous distinctions between ICT services and technologies diminish or disappear, and they all begin to converge into a homogenised ‘broad-band-casting’, the current differences in approach to the regulation of content across these services will also become increasingly unsustainable. These content issues include:
- Digital piracy
- Privacy and Security
- Advertising standards
- Protection of children and the vulnerable
- The future of public broadcasting and its funding.
There are no clear trends emerging from overseas jurisdictions about how best to address these emerging challenges, and in fact, there have been marked differences in approach between the UK, US, EU and Canada, for example. So Australia may well have to invent its own culturally specific model, but within a framework which adheres to principles which support and advance the underlying principles of our society, including competition, promotion of innovation and opportunity, privacy and freedom of expression.
The UK is starting to address these issues in relation to the development of a coherent convergence policy, as reflected in a recent speech by Ofcom Chairman, David Currie:
In content, it means being open to the adoption of new techniques or sources of revenue to support media assets, from behavioural advertising to ad-funded programme. In public service broadcasting, investment in UK origination is central to our vision for a sustainable, plural system. Not as an end in itself but because it is a necessary enabler of public purposes. In relation to internet content, the danger of importing old broadcasting style regulation to the internet should be avoided. Any new content regulations should recognise the distributed but shared responsibility for ensuring that children and the vulnerable are protected, whilst enabling Australians to enjoy the huge benefits of the internet.
[Ref: http://www.ofcom.org.uk/media/speeches/2008/10/annual_lecture by David Currie, Chairman of Ofcom on 15 October 2008.]
In the UK, following the Byron review, a new UK Child Council on Internet Safety was established in 2008. Ofcom and the industry are now jointly developing and spreading awareness of the practical tools and technologies available– from the use of filtering and kite-marks, to parent’s enforcement of simple rules about internet use - that allow people to navigate the online world while ensuring children’s safety.
Similarly, legitimate concerns about privacy should not prevent innovation as a driving force behind new services, new business opportunities and new ways of funding creative media. Transparency is the key.
4.6 Content services
4.6.1 Which services will be regulated, and how?
For example, should broadcasting channels be covered by special rules, or should the same rules cover all services to the general public?
4.6.2 Obligations of service providers
• Different treatment for undisclosed UGC authors
Source: Patrick Fair
One argument for making online service providers potentially liable for UGC is that contributions are often anonymous or given under pseudonyms. Therefore, the makers cannot be held to account. So it is argued that the service provider is the only person who can, in practice, be more responsible.
Rules dealing with content management, including responding to take-down notices should recognise different responsibilities between:
• online providers that know with reasonable certainty the identity of their users; and
• those that do not know who is posting content.
Industry codes might recognise a difference between services that allow anonymous accounts and those that do not and, perhaps, require those that permit anonymous users to warn participants and respond more rapidly to take-down notices.
Note that just because a service provider knows the identity of a user does not mean that that identity needs to be published online.
[Source: Patrick Fair, interviewed by Network Insight in June 2008]
• Users rather than providers should be the censor supported by a more robust complaint-based model
Source: Patrick Fair
In a converged environment where adult content is presented with warning notices, clearly unacceptable content is the subject of criminal sanctions. The power of censorship between legally permitted content should be placed with the informed user rather than requiring the provider of the medium act as censor.
Given that we are moving to an era of unlimited choice, the concept that people cannot exercise control of the medium (as it has been with limited channels for example) seems anachronistic.
Social concerns could be addressed by a more robust complaint-based model that is much easier to apply in an IP world.
[Source: Patrick Fair, interviewed by Network Insight in June 2008]
4.6.3 Licensing of service providers
For example, must anyone be licensed, similarly to commercial and public broadcasters now, or has the purpose of licensing disappeared now that frequencies are separately regulated, and the number of non-licensed or class-licensed services has grown so large?
4.6.4 Access to program rights
• Reduce concentration of the sources of supply of content
Source: ACCC
The Australian Competition and Consumer Commission has on a number of occasions focused on the supply of programs, or the rights to programs, as an emerging issue relating to media independence. For example, in its 2006 paper, Media Mergers, it said:
As the number of ways of conveying media content to consumers increases, it is likely that competition concerns relating to concentration among content providers will become more important and will be an increasingly strong focus of the ACCC when assessing mergers. In particular, the supply of ‘compelling’ content – that is, content that is likely to attract significant numbers of consumers to, for example, a 3G mobile service or an internet website – is limited. Premium sport and movies are two examples of compelling content.
The ACCC has therefore for some time been concerned about the potential for exclusive content acquisition by media companies from content suppliers to inhibit competition in emerging modes of media, particularly those using relatively new delivery platforms such as subscription television, the internet and 3G mobile services.
[Ref: Australian Competition and Consumer Commission, 2006, Media Mergers, viewed 24 July 2008, http://www.accc.gov.au/content/item.phtml?itemId=758217&nodeId=d8c88cae227b9786b4348534581efdda&fn=Media%20Mergers.pdf.]
• Increased access to pay TV content in favour of broadband networks
Source: Australian Competition and Consumer Commission
The ACCC Emerging market structures in the communications sector, 2003 report recommended that the Government introduce legislation promoting access to pay TV content. It said: ‘The Commission recommends that the government introduce legislation to increase access to pay TV content for broadband networks.’
The report highlighted what it saw as a lack of access, triggering concern relating to competition in the supply of pay TV services and the supply of broadband and telecommunications services in the Australian marketplace.
[Ref: Australian Competition and Consumer Commission, 2003, Emerging Market Structures in the Communications Sector, viewed 24 July 2008, http://www.accc.gov.au/content/item.phtml?itemId=324108&nodeId=bd7602ed351dadd8c069b69436b45231&fn=Emerging%20market%20structures%20in%20the%20communications%20sector.pdf]
• Specific access regime for content
Source: Senate Environment, Communications, Information Technology and the Arts References Committee
In 2004 the Senate Environment, Communications, Information Technology and the Arts References Committee Inquiry into Competition in Broadband Services put forward a number of policy options including the recommendation that Telstra be required to divest its shareholding in FOXTEL as a means of increasing access to premium content controlled by the company. The Committee took the view that even divestiture might not go far enough:
‘While this may help to address the immediate problem relating to the access to content, the new owner of Telstra’s current stake may be not more amenable to allowing widespread access to the content FOXTEL controls. Nor would this step address problems which might arise in the future as a result of the emergence of monopolies over other types of key content. The Committee considers that the only way to address this issue in the long term is to develop an access regime for content.’
[Ref: The Senate Environment, Communications, Information Technology and the Arts References Committee, Competition in Broadband Services report, 2004, viewed 24 July 2008, http://www.aph.gov.au/SENATE/committee/ecita_ctte/completed_inquiries/2002-04/broadband_competition/report/index.htm]
• Future trade agreements should include anti-siphoning and sports rights
Source: Australian Subscription Radio and Television Association (ASTRA)
ASTRA believes that future trade agreements negotiated by Australia should address the following in relation to anti-siphoning:
1. There is no need for government intervention to regulate the acquisition and exploitation of sports television rights. This is because sports bodies, sponsors and the public will demand and expect terrestrial television coverage of major sporting events. As a corollary, major sporting events attract large viewing audiences and sports bodies themselves will seek terrestrial television coverage where possible. No evidence has ever been presented to demonstrate that, absent regulation in Australia, major sporting events will not appear on terrestrial television.
2. If despite the view set out above, it is accepted that there is the need for some continued regulatory intervention, the scheme would be refined according to strict criteria in that the list must only include events which:
- have consistently been broadcast live and in full on Australian terrestrial television;
- generally take place in Australia;
- involve the national Australian senior representative team; and
- are of major importance to Australian society in the sense that they must have specific cultural and social value
To apply the above criteria, the listing of an event must be carefully prescribed, so that it does not inadvertently include whole events or large number of matches in a particular type of tournament.
If the anti-siphoning scheme were abolished or reformed, domestic and international sporting organisations would be able to determine the best way to exploit television rights to their sporting events within Australia. Many sporting organisations do not license their rights directly. Instead, they appoint global or regional agencies to represent them, and these agencies negotiate all broad arrangements on behalf of the relevant sporting bodies. The restrictive nature of the current anti-siphoning regime contradicts the free market principles that support free trade.
Note: This proposal was originally put forward in ASTRA’s submission in relation to the proposed free trade agreement between the United States and Australia.
4.6.5 Enforcement of rules
• Give on-air and editorial enforcement to courts, not statutory regulators
Source: DMG radio
A large radio broadcasting network, DMG, argues that disputes relating to on air content and editorial control are best decided by an independent court, rather than a specialised statutory regulator:
DMG Radio opposes the expansion of enforcement powers in areas that relate to on air content or editorial control. The media industry is central to the proper workings of our system of democratic government. It is dangerous in the extreme to allow non elected bureaucrats to interfere with decisions about on air content and editorial control. As a practical matter, there is no doubt that the expansion of enforcement powers will have that effect.
Regulators were given expanded enforcement powers and, in particular, powers in respect of enforceable undertakings and civil prosecutions, quite a few years ago, in the financial services industry. Evidence submitted to various parliamentary and other inquiries demonstrates that to expand powers in this way:
• results in a proliferation of policy statements and practice notes issued by the regulators (in relation to the actions that the regulators expect to see in order for enforceable undertakings and civil prosecutions to be avoided);
• increases at an alarming rate the costs associated with compliance programs and training in order to satisfy the requirements of those policy statements and practice notes;
• increases at an alarming rate the costs associated with ongoing liaison with the regulators (including compliance, audit and update visits by the regulators and ongoing information gathering exercises undertaken by the regulators); and
• results in the effective regulation and control of relevant businesses by administrative prerogative and not by law.
DMG is of the strong belief that disputes about on air content and editorial control should be decided always and only by an independent court and it is an affront to our democratic system to put that power into the hands of non elected bureaucrats.
Changes to media ownership rules in 2006 created a number of new regulatory processes and expanded ACMA’s enforcement powers relating to the operation of regional radio following a ‘trigger event’. ACMA’s enforcement powers in regional areas of Australia, in relation to local news and information were criticised by DMG as being too intrusive. The obligation to satisfy ACMA in relation to broadcasting of ‘eligible’ local news bulletins, weather bulletins, local community service announcements, emergency warnings and designated local content programs was characterized by DMG as an unnecessary intrusion into business operation.
[Ref: DMG Radio (Australia) Pty Ltd, 2006, Submission to the Inquiry into the Broadcasting Services Amendment (Media Ownership) Bill 2006 and related Bills, viewed 24 July 2008, http://www.aph.gov.au/SEnate/committee/ecita_ctte/completed_inquiries/2004-07/cross_media/submissions/sub28.pdf]
4.7 Content channels, platforms and networks
What this section is about. This section deals with the range of entities who might attract some kinds of policy. For example, some might require a licence before they are allowed to operate at all; whereas others might receive a subsidy or special protection. Long ago, this section might have been licensees of broadcasting stations. Currently, there are a variety of channels which receive specific regulation, including ISPs, mobile telcos and various radiocommunications services. This policy matrix does not adopt any of those labels, because any chosen lable implies a judgemnet about what should be done in the future. So it uses the word 'channel': the least value-laden term we could think of.
4.7.1 Obligations of channels
4.7.2 Licensing of channels
There is an argument that channels should no longer be licensed, but the importance of the entities ultimately responsible for collections of channels should be licensed.
4.7.2.1 who must be licensed, and why?
• Broadcasting licences to be totally separate from spectrum licences
Source: Productivity Commission
In 2000 the Productivity Commission report on broadcasting recommend that: ‘licences granting access to spectrum should be separated from content related licences that grant permission to broadcast. The report said that:
splitting broadcasting licences granting permission to broadcast would provide opportunities to improve significantly the efficiency of use of broadcasting spectrum. In particular the split would create the preconditions necessary for more appropriate pricing of spectrum, which in turn would create incentives for more efficient use of spectrum. It would help drive the digital conversion process, freeing up spectrum for more and different services. It would facilitate the development of digital broadcasting multiplex operators that can provide a delivery mechanism for multiple services. In addition, it could improve regulatory efficiency, which is increasingly important as technological convergence increases the number of ways in which broadcasting services can be delivered.
The report argued that while this method offered a new approach to managing broadcasting spectrum, it was consistent with how spectrum was managed outside the broadcasting services bands.
[Ref: Productivity Commission, 2000, Report into Broadcasting, viewed 24 July 2008, http://www.pc.gov.au/inquiry/broadcasting/docs/finalreport]
• For disability access, content rather than the technology that delivers it, should be the subject of regulation
Source: Media Access Australia
For disability access the current licensing model regulates traditional broadcasters. This has allowed a service to meet its obligations if it provides access features on one of its channels, with multichannels being exempt. This is extremely problematic as Australians with a disability are excluded from the content on these extra channels.
If a cost/revenue based exception was introduced, similar to the UK model, it would be essential that the financial resources of connected stations were considered jointly. For example a multichannel or time delay channel with little independent income should not be exempt if the primary channel is well resourced.
The UK model is relatively simple, benchmarking access against several intertwining measures. The primary measure is turnover and this dictates the basic compliance level (broken into three tiers). Thus the ‘major’ channels such as ITV and Sky are designated ‘full access’ channels. This means that they ultimately need to achieve one hundred percent captioning and ten percent audio description (although quota is being reviewed). The second measure is the commencement of broadcasting in digital. Generally, channels are given ten years to reach full compliance. The third is a general exemption which says that a broadcaster should be able to achieve its access level spending one percent of its turnover. The other consideration is audience share. Any channel with less than 0.05 percent share does not have to meet access quotas at all. The public broadcasters have a self-regulatory environment, but effectively follow the general quotas (and exceed them). So in effect, the one percent turnover becomes an ‘exemption’ trigger. The simplicity of the quota system is that it uses publically available, relatively indisputable data (such as turnover and year of commencing digital transmission) and it is up to the broadcaster to prove the exemption. See: http://www.mediaaccess.org.au/index.php?option=com_content&view=article&id=137&Itemid=75#5
The licence system must be adapted so that subscription television and community channels are equally subject to access requirements, with appropriate exception.
4.8 Diversity of content channels
4.8.1 Who is affected, and why
4.8.1.1 mass media
4.8.1.2 other content
4.8.2 Limits on concentration of control
4.8.2.1 in local areas
4.8.2.2 in Australia as a whole
4.8.3 Procedures for preserving diversity
4.8.3.1 monitoring and disclosure
4.8.3.2 decisions about changes of control
4.8.3.3 enforcement of rules
4.9 Problem-solving and consumer complaints
• Active monitoring should supplement an enhanced general complaints- based model for systematic failure to provide captioning services
Source: Media Access Australia
In a digital environment a complaints-based model is not the best enforcement process where problems impact on more than one consumer. ACMA, or any new regulator, should also perform a monitoring role so that systemic failures can be addressed. With some exceptions, the current captioning requirements in the Broadcasting Services Act are simple to understand (all programs between 6.30-midnight and all news and current affairs programs need to be captioned). However, if the requirements become percentage-based or related to cost and audience share then the ability of consumers to recognise breaches would be almost non existent. Therefore moving away from a complaints-based model is essential.
Regardless, a complaints mechanism should be retained as a supplementary means of identifying problems and an avenue for localised complaints. A complaints process Improvement would include a single point of entry, easy to lodge complaint form, speedy review, transparency, concrete remedies and simplified rule.
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