Broadcasting Services Act

2.10 The Broadcasting Services Act 1992 (Cth) came into force in 1993, replacing the Broadcasting Act 1942 (Cth). The Actcontains an objects section that aims to state the goals and principles of broadcasting policy, and a statement of regulatory policy expressing a commitment to ‘light touch’ regulation intended to promote greater competition, new technologies and the development of new services.^[8]

2.11 The Broadcasting Services Act also devolved responsibility for the development of program classification, and the handling of complaints, to industry bodies in a co-regulatory framework, through the development of industry codes of practice approved and registered with the ACMA.

Broadcasting industry codes and standards

2.12 In developing classification standards for television programs, broadcasters are required to take account of:

• the objects of the Broadcasting Services Act (s 3);
• code of practice requirements stated in the Broadcasting Services Act (s 123);
• classification standards for other media, as administered by the Classification Board; and
• outcomes of consultation with the community and the ACMA about these standards.

2.13 The commercial television code of practice is developed and administered by Free TV Australia as the relevant industry body for free-to-air commercial networks. The subscription television codes of practice, the subscription narrowcasting codes of practice, and the open narrowcasting codes of practice are developed and administered by the Australian Subscription Television and Radio Association (ASTRA). The Australia Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) codes of practice are developed and approved within those organisations. These codes are discussed in more detail in Chapter 11.

Schedules 5 and 7 of the Broadcasting Services Act

2.14 The Broadcasting Services Amendment (Online Services) Act 1999 (Cth) established the legislative framework for online content regulation in Australia. It extended the co-regulatory system for broadcasting to online content, combining this with a complaints-based mechanism for content assessment.^[9]

2.15 Schedule 5 of the Broadcasting Services Act sets out provisions in relation to internet content hosted outside Australia, and sch 7 does so in relation to content services, including some content available on the internet and mobile services hosted in or provided from Australia. Broadly, the scheme places constraints on the types of online content that can be hosted or provided by internet service providers (ISPs) and content service providers.

2.16 Schedule 7 defines ‘prohibited’ or ‘potentially prohibited’ content.^[10] Generally, ‘prohibited content’ is content that has been classified by the Classification Board as X 18+ or RC and, in some cases, content classified R 18+ or MA 15+ where the content is not subject to a ‘restricted access system’. Content is ‘potential prohibited content’ if the content has not been classified by the Classification Board and, if it were to be classified, there is a substantial likelihood that it would be prohibited content.

2.17 Under the Broadcasting Services Act, the ACMA investigates complaints about online content that the complainant believes to be ‘prohibited content’ or ‘potential prohibited content’ with reference to the National Classification Code. The Classification Board will classify online content on receipt of an application for classification.

2.18 The ACMA may choose to investigate on its own initiative, and must investigate all complaints that are not frivolous, vexatious, made in bad faith, or made to undermine the effective administration of the schedules.^[11]

2.19 The action that the ACMA must take depends, among other things, on where the content is located. Where prohibited content is hosted in Australia, the ACMA must issue a final notice to the content service provider seeking removal of the content, the link or service, or requiring the use of a restricted access system, depending on the nature and classification category of the content.^[12] The ACMA must issue an interim notice for Australian-hosted potential prohibited content and apply to the Classification Board for classification of the content.^[13] Content hosts must undertake the action required by the notice by 6pm the next business day, and financial penalties apply for failing to comply with a notice.^[14] Where Australian-hosted prohibited or potential prohibited content is also considered to be sufficiently serious, the ACMA must notify law enforcement agencies.

2.20 Where prohibited or potential prohibited content is hosted outside Australia, the ACMA notifies filter software makers accredited by the internet industry in accordance with the code of practice in place under sch 5.^[15] The filters are made available by internet service providers to their customers for free or on a cost recovery basis. Where prohibited or potential prohibited content hosted overseas is also considered to be sufficiently serious, the ACMA notifies the member hotline in the country where the content appears to be hosted. Where no member hotline exists, the ACMA notifies the Australian Federal Police for action through Interpol.

Internet industry codes

2.21 Schedules 5 and 7 of the Broadcasting Services Act are intended to establish a co-regulatory framework based on industry codes developed by sections of the internet industry.

2.22 Under sch 5, the matters that must be dealt with by industry codes for internet service providers include enabling parents to better monitor the online activities of their children, provision of filtering technologies, content labelling, legal assessments of content, and complaints handling procedures.^[16]

2.23 Under sch 7, the matters that must be dealt with by industry codes for commercial content service providers include the engagement of trained content assessors; and ensuring that content is assessed by these content assessors. Matters that may be dealt with include complaint-handling procedures, promoting awareness of safety issues, and assisting parents to supervise and control children’s access to online content.^[17]

2.24 In accordance with schs 5 and 7, the Internet Industry Association (IIA) has developed two industry codes—the Internet and Mobile Content Code^[18] and the Content Services Code.^[19] The codes impose various obligations on content hosts, ISPs, mobile carriers, and content service providers. Subjects addressed include:

• obligations in responding to notices;
• requirements about what information must be provided to users;
• requirements about making filters available;
• requirements about establishing complaints procedures; and
• the appropriate use of restricted access systems.

2.25 Peter Coroneos, former chief executive of the IIA, has described the IIA codes as ‘promoting industry facilitated user empowerment’ and ‘designed to achieve the broad objectives of the legislation without significant burden on or damage to the industry’.^[20]