Media Law

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REGULATION OF THE MEDIA IN AUSTRALIA

The media is still regulated primarily according to the way in which various media services are delivered.

Print Media

There is no specific statutory authority which administers licensing or content obligations  in the same way as the Australian Communications and Media Authority (ACMA) [established under the Australian Communications and Media Authority Act 2005 (Cth)] operates in the broadcasting, Austrlian Communications and Media Authority exercises responsibility for the regulation of broadcasting, the internet, radiocommunications and telecommunications.

There are however a variety of laws regulating aspects of the print media, such as laws concerning the regulation and control of  media ownership contained in the former Trade Practices Act 1974 (Cth) renamed the Competition and Consumer Act 2010 in January 2011) and the Foreign Acquisitions and Takeovers Act 1975 (Cth).

Some States also impose obligations in relation to imprint requirements in respect of documents, papers and books, printing and newspapers which require  identification and location of businesses involved in printing, publishing and the sale of newspapers.

There is a  degree of voluntary regulation over the print media by the Australian Press Council, a private association of organisations and persons funded mainly by major and regional newspaper and magazine publishers and the Australian Associated Press.  The stated aims and objectives of the Press Council are to ensure the press acts responsibly, fosters journalistic ethics and press freedom.

The Press Council has established a statement of principles and issues reporting guidelines regarding specific issues relating to those principles.  The Press Council has also established detailed standards to deal with privacy in the exercise of the activities of media organisations.

As discussed elsewhere media organisations enjoy an exemption for ‘acts done in the course of journalism if publicly committed to observing written standards that deal with privacy‘ see s7B(4) Privacy Act].  Several publishing organisations and press council members subscribe to these privacy standards.  The Press Council  has set up a complaints handling procedure to receive complaints from the public in relation to material published or printed in Australia in newspaper, magazines or periodicals such as news reports, articles, editorials, letters and images including cartoons.  It will also accept complaints about news reports and commentary which appear on internet websites provided the sites are maintained by it’s publisher members.

Enquiries Into The Media And Media Regulation

Australia is presently conducting an enquiry into the media and media regulation; Independent Inquiry into Media and Media Regulation  which is intended to consider current media codes of practice, how the independence and effectiveness of the Australian Press Council might be improved, in addition to exploring whether the media business model supports quality journalism and news.

 Unlike other major Western democracies, Australia doesn’t have any national Bill or Charter outlining fundamental rights and freedoms enjoyed by its citizens. The common law is the only means by which rights and freedoms can be protected. The right to freedom of speech is found in case law concerning the implied freedom of government and political discussion in the Australian Constitution. (see Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Australian Capital Television Pty Ltd v Commonwealth (No. 2) (1992) 177 CLR 106, Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520)

Compared to case law dealing with freedom of expression and of the press in the United States, the United Kingdom and within the jurisprudence of the European Court of Human Rights, Australian law is relatively unsophisticated.  Australian law recognises only a weak implied right to freedom of political communication, from the text of the Constitution, and translates to the right to receive and distribute information, opinions and points of view concerning government and political matters affecting Australian citizens.  Freedom of expression is presumed in Australia but has been interpreted narrowly by Courts compared to other jurisdictions and is subject to exceptions which are contained within case law.

 The Leveson Enquiry, presently being conducted in the UK, has been tasked with investigating investigating the role of the press and police in the phone-hacking scandal, on 13 July 2011.   The Enquiry is considering issues related to the press and the public, police and politicians, the practice and culture of media and will make recommendations on the future of press regulation and governance.

Regulation of Journalists

There is  little regulation of journalists, whose conduct isn’t subject to the complaints procedure established by the Australian Press Council.   No formal qualifications are required to practice journalism and there is no professional or disciplinary body for journalists.  The Media Entertainment and Arts Alliance (MEAA) has established a code of ethics and standards for both print and electronic journalists, but it is only binding on members and doesn’t have any binding impact on   media proprietors, editors or producers,  which in reality, often exercise final decision making power over employee journalists  subject to direction and veto by their employers.

LEGAL REGULATION OF THE AUSTRALIAN BROADCASTING INDUSTRY

The Australian broadcasting industry is mainly regulated by the Broadcasting Services Act 1992 (Cth) (BSA), which regulates broadcasting, datacasting services and internet content. As with the print media, broadcasters, datacasters and internet providers are also subject to legal obligations under general law such as copyright law and defamation, actions which can pursued by those affected through the court system.

The Australian Broadcasting Corporation Act 1983 (Cth) establishes and regulates the ABC whilst the Special Broadcasting Service (SBS)  is regulated by the Special Broadcasting Service Act 1991 (Cth). Legislation also exists for the payment of  licence fees by commercial broadcasting licensees [Television Licence Fees Act 1964 (Cth) and the Radio Licence Fees Act 1964 (Cth)] The ACMA was established by the Australian Communication and Media Authority Act 2005 (Cth) as a statutory authority with a very broad range of regulatory, licensing and other functions  discharges under the provisions of the BSA and other legislation in respect of monitoring the broadcasting, datacasting and internet industries.

FUNCTIONS OF THE ACMA

The ACMA is a Commonwealth statutory regulatory authority established in 2005 as a result of the merger of the former Australian Broadcasting Authority and the Australian Communications Authority.  The ACMA is responsible for broadcasting, online content, radio communications and telecommunications,  with legislative duties under the BSA, the Radio Communications Act 1992, the Telecommunications Act 1997,  the Telecommunications Consumer Protection and Service Standards Act 1999 and related legislation.

In discharging it’s responsibilities under the  BSA the ACMA monitors, regulates and administers broadcasting, datacasting and internet industry, and carries out licensing functions.   The ACMA also has responsibilities relating to  spectrum management,  plans the availability of segments of the broadcasting services bands on an area basis, receives and investigates complaints, conducts investigations of it’s own initiative,  and takes enforcement action where necessary.

In respect of program and content regulation, the ACMA assists broadcasting and datacasting service providers to devise appropriate codes of practice in compliance with community standards and  monitors compliance with the standards. For example,

LEGAL REGULATION OF CONTENT

The ACMA has analogous functions in respect of the internet under  Schedules 5 and 7 of the BSA.  The regulation of the internet and the legal framework borrows heavily from the framework established to regulate traditional media, however there are  differences in relation to the regulation of the internet. The ACMA also carries out research functions in respect of the internet and liaises with international bodies to develop arrangements for the regulation of the internet industry.

The ACMA has numerous functions in its role of regulating online content under the BSA, ranging from monitoring compliance with registered codes of standards to advising parents and adults on matters regarding the supervision and control of access to internet content by children. It also develops and conducts community education programs about internet content and internet carriage services.  For example it conduct the cybersmart program, a nationwide cybersafety education initiative intended to promote online safety and managing internet risks.

The ACMA consults widely with both industry and consumer representatives,  government agencies and regulatory bodies both domestically and overseas with a view to facilitating co-operative arrangements, the  establishment of multilateral codes of practice and internet content labelling technologies. The ACMA also regulates other kinds of illegal content such as internet gambling sites and spam.

ENFORCEMENT POWERS

The ACMA has a broad range of enforcement powers faced with  breaches of the BSA by both online and traditional broadcasting service providers.  The ACMA can refer a breach of the Act to the DPP for prosecution where it deems it appropriate,  seek  civil penalties or injunctions from the Federal Court of Australia and issue a range of notices including but not limited to infringement notices.

There are certain types of complaints which the ACMA doesn’t handle such as defamation claims, claims concerning  false and misleading advertising or billing in relation to subscription based services.   Consumer and privacy related complaints may be referred to a number of regulatory bodies such as the ACCC and/or the Telecommunications Industry Ombudsman, depending on the  complaint in question.

LEGAL AND REGULATORY FRAMEWORK

The regulatory framework and regime for the regulation of Australian broadcasting services  is very detailed and and this presents only a brief overview of the scheme in relation to regulation of internet content.

One of the justifications for the extensive regulation of the Australian broadcasting media has  been the scarcity of resources available for delivery of broadcasting services.  Traditionally radio and television programs were delivered via the radiofrequency spectrum via a limited number of  frequencies, so  the resource needed to be allocated in an equitable way.

However scarcity of spectrum is no longer an issue  in today’s world of ultra high frequency transmission, cable, satellite and microwave distribution services, digital television and radio.  These technologies remove restraints on the number of broadcasting services where there is an abundance of spectrum and where technological convergence has transformed the ways in which broadcasting services are being delivered.

Alternate explanations put forward for extensive regulation are the desire  to exert some influence over the way  news and media is disseminated.  The Government asserts that licensees  are vested with a high degree of trust and responsibility and must be accountable in upholding standards in the conduct of their operations.

Although the BSA regulates all broadcasting services regardless of their mode of delivery to consumers,  the regulation  still discriminates  between services according to their method of delivery and the technologies used.  The legislation recognises nine different categories of broadcasting services, each subject to different degrees of regulatory oversight and control.  For instance commercial broadcasters are subject to the most stringent standards of regulation compared with narrowcasting services which play a comparatively insignificant role in influencing mainstream views.

WHAT IS A BROADCASTING SERVICE UNDER THE BROADCASTING SERVICES ACT

Under s6 of the Act a broadcasting service is a service that delivers  television or radio programs  to people with the equipment appropriate for receiving the services.  A program is defined as having the purpose of entertaining, educating or informing an audience, or consists of advertising or sponsorship matter.  There is no requirement that a program, as defined, be delivered via the radiofrequency spectrum and qualified as a program even where delivered via cable, optic fibre or satellite.

REGULATION OF INTERNET CONTENT

The Government has an established classification and enforcement scheme in respect  of films, publications and games consisting of a  National Classification Code, guidelines, Classification Board decisions and review panels pursuant to the  Classification (Publication, Films and Computer Games) Act 1995 (Cth). (CA)

The  regulatory framework for internet content is found in Schedules 5 and 7 of the Broadcasting Services Act 1992 (Cth), the objective of which is to restrict access to internet content likely to offend reasonable adults, protect children from unsuitable internet content and provide a complaints process  for investigating internet content.

Internet Service Providers (ISPs) are regulated by Schedule 5 of the Act, internet content hosts (ICHs) by Schedule 7.  Under Schedules 5 and 7 of the BSA the ACMA investigates all valid complaints about online content found on websites, newsgroup postings and files accessible on peer to peer file sharing networks where the complainant believes the content is prohibited.

Online content is assessed under the National Classification Scheme, with the range of categories set out below. Person producing content, uploading  or accessing content can also be subject to obligations imposed by state  criminal laws and telecommunication related offences contained in the Commonwealth Criminal Code.

COMPLAINTS BASED SYSTEM

The complaints regime requires the ACMA to investigate complaints about ‘prohibited‘ and ‘potentially prohibited content’ on the internet. According to the ACMA’s Communication’s Report for the year 2008-09 the ACMA received 1,182 complaints about potentially prohibited content, 1003 of which culminated in investigations, with 618  investigations resulting in 1363 items of prohibited/potentially prohibited online content.  Since the regime was implemented in 2000, the ACMA has taken action in relation to 6,600 items of prohibited and potential prohibited content. (page 172)

WHAT IS PROHIBITED CONTENT?

Internet content hosted in Australia is prohibited content if it has been classified by the Classification Board as:

1. Refused Classification (RC)
2.  X 18+
3.  R18+  not subject to a restricted access system (RAS), under which persons accessing it are issued with  a limited means of access  via either a password or PIN  (Sch 5 Cl 10(1)]
4. MA15+ if the content is provided for a fee by a commercial content service provider not subject to a RAS & which  isn’t text or still visual images

Material can be classified as  RC,  X 18+ or R 18+ where it portrays themes relating to sex, nudity, violence,  drug use, suicide or language.  Overseas hosted content is prohibited content where classified as either RC or X 18+ by the Classifications Board.

Potential prohibited content is online content which hasn’t been classified by the Classification Board, if the ACMA believes there is a ‘substantial likelihood’ it would be

The concepts of prohibited content and potentially prohibited content derive from the classification system of ratings for films, computer games and publications set out as follows for comparative purposes:

G – general (mild content)
PG – parental guidance recommended
M – recommended for mature audiences (moderate in impact)
MA15+ Restrict – not suitable for people under 15 (strong content)
R18+ Restricted – restricted to people 18 years and over (high level content)
X18+  Restricted – restricted to people 18 years and above (films with sexually explicit content)

The policy guiding the Classifications Board in assigning a  classification to content is based on principles enshrined in  Section 1 of the National Classification Code. The Policy states that the Board considers that adults should be able to read, hear and see what they want, minors protected from content likely to harm or disturb them, and takes into account specific community concerns.  The Board’s decisions also factor in context, impact and use of certain themes.

WHAT KINDS OF ONLINE CONTENT ARE SUBJECT TO REGULATION

Internet service providers (ISPs) are regulated under Schedule 5, whilst hosts, live content, linked and commercial content services with an Australian  connection are regulated pursuant to Schedule 7.   Live streamed content, premium  content services provided through mobile phones and services with a link to content having the requisite “Australian connection” are subject to the regulatory content where a service makes content accessible to end users.  Where prohibited or potentially prohibited content is either hosted in or provided from Australia the ACMA must direct the content service provider to remove access to it.

There is a distinction between the way Australian hosted prohibited content or linked to hosted content is dealt with and overseas hosted content.  Over 90% of potentially prohibited content investigated by the ACMA is hosted outside Australia, a recurring theme since the scheme for the regulation on internet content was introduced in 2000.

Whilst the classification of online content does borrow heavily from the categories in place with respect to  publications, films and computer games, there are features which differ  in respect of online content, one of which is the requirement of a ‘restricted access system’ (RAS – see below)

There is a different classification scheme applicable to eligible electronic publications (EEPs) under Sch 7 of the BSA, being the  functional equivalent of books, magazines, newspapers or audio versions of these documents made available in Australia (Sch 7 cl 11.)   EEPs will be prohibited content if they are in the RC category or category 1 or category 2 restricted.   Potentially prohibited content for EEPs  will only be declared as such if there is a ‘substantial likelihood‘ that it  is RC or category 2 restricted.

What is a restricted access system?

A RAS is a system which provides a reasonably effective means of limiting access to users to content and may prove to be  significant  in determining whether content is prohibited or potentially prohibited.  One of the recent objectives introduced in the legislation in the form of s3(ha) was a requirement that designated content/hosting providers respect community standards in relation to online content.

The RAS provides a way of controlling access to R18+ and MA15+ online content, and the ACMA has rules enabling the restriction of provision of these categories of content providing they are not prohibited or potentially prohibited.   (Sch 7 Cl 14). A RAS for MA15+ content must require the internet user to apply for access and make a declaration they are at least 15 years old and display warnings about the nature of MA15+ content accompanied by safety information explaining how parents can prevent persons under 15 years accessing it.

An RAS for R18+ content has similar requirements as well as a  requirement that a user provide evidence that they are at least 18 years old, which has to be verified against a risk analysis of the kind of proof of age required.  Records of the age verification of users must be retained by the provider for a period of two years.

Under Schedule 7 the ACMA may approve an industry self-regulatory content assessment code such as the Internet Industry Association (IIA) Code of Practice  Content Services Code 2008. A breach of the code can be investigated and enforced by the ACMA under Schedule 7.

Providers of  ‘for profit’ commercial content services to the public for a fee are required to employ a trained content assessor to review any content that hasn’t been classified by the Board but is likely to be classified RC, X18+, R18+ or MA15+.  A trained content assessor is defined in the Act. The IIA Code requires trained content assessors to review content in accordance with the Classification Act, Guidelines and the National Classification Code.

What is the effect of content being prohibited or potentially prohibited?

Where online content is classified as either prohibited or potentially prohibited it can’t be delivered or made available to the public in Australia.  A person can make a complaint to the ACMA about “prohibited content” or potential prohibited content” if they hold  a reasonable belief  end users in Australia can access it via an internet carriage service or an internet content host is hosting such content in Australia.  The ACMA can also initiate the investigation of complaints.

If  satisfied prohibited content is being hosted in Australia the ACMA must give the relevant ICH a final take down notice directing the host to cease hosting it.  The ACMA must investigate all complaints unless satisfied the complaint is vexatious or frivolous, made in bad faith, doesn’t relate to an Australian resident, or where the complainant fails to provide an internet address.   The type of take down notice the ACMA can issue depends on the method the content is being delivered.  Where it is being hosted the notice  a  take-down notice will be issued, where provided via a link, a links deletion notice or, if delivered by a live content service provider, service cessation notice to cease delivering the service.  The ACMA may therefore either direct the Australian content service provider to block the content or remove access to it, delete the link or cease delivering a live service. The regime applies to items of Australian hosted content or Australian hosted links to such content.

Potentially prohibited content

If the content is prohibited, the ACMA may issue a final notice to this effect, but if it is content hosted in Australia which is  potentially prohibited the ACMA has the power to  issue an interim notice and refer the content to the Classification Board for classification. It can issue a final notice once a decision has been made the content is prohibited under Schedule 7.  A content service provider which doesn’t comply  with such a notice within the time period specified, (6pm the following business day) will have committed a crime and companies that fail to comply will incur financial penalties on a daily basis.  Action has been taken by the ACMA in relation to  items of prohibited or potential prohibited content hosted in Australia.

Any person who is a resident of Australia, or a company carrying out activities in Australia can complain to the ACMA about prohibited or potentially prohibited online or premium mobile content which they have reason to believe is accessible to users in Australia.

Prohibited or potentially prohibited  content hosted outside Australia

If the ACMA is satisfied that such content is hosted overseas the ACMA must notify the supplier of industry accredited filters, in accordance with procedures set down in the IIA Code of Practice so as to block access to content by the users of the filters   (Sch 5 cl 40(1)(b) & Sch 7).  The IIA is a body which represents the internet industry and has devised and registered various codes with the ACMA.  1356 overseas hosted prohibited or potentially prohibited items were supplied to industry accredited filterers according to the ACMA’s 2008-09 report (p172)

Where the ACMA considers the offensive content is sufficiently serious, eg it is associated with child pornography or paedophilia, the ACMA  can refer details of the content to the appropriate law enforcement body. For instance in relation to illegal content provided from or hosted outside Australia this would be the Australian Federal Police and/or foreign regulators and the International Association of Internet Hotlines (INHOPE).  INHOPE is an international forum for internet hotlines to exchange information and experience. The member hotlines deal with illegal internet content, particularly child pornography.  Since the online classification scheme was implemented the ACMA has taken action in relation to over 6,000 items of overseas hosted content.  Much of that  material containing child pornography has been referred to INHOPE for further investigation.

Where the offensive content is hosted outside Australia the ACMA has the power to provide details of the content to makers of authorised filter products under the IIA’s Code of Practice. (s40(1)(b) of Sch 5 BSA).

Protection from liability for Internet Content Hosts and Internet Service Providers

Internet Service providers are granted immunity from being sued where they comply with a  registered code of practice or standard and, in a similar vein, an internet content host can’t be sued for complying with a take down notice. No law has any effect to the extent to which it would subject either an ICH or ISP to civil or criminal liability in respect of hosting or carrying internet content where the host or service provider wasn’t aware of the nature of the content. Any laws are ineffective to the degree that  require an ICH or ISP to monitor, make enquiries about or keep records of the internet content they host or carry.

The differences in the approach to online content and traditional media

Under the scheme operating in Australia, most material must be classified prior to it’s distribution to the public.  However  online content it is automatically available  under the regulatory regime but  subject to being removed where it is deemed to be prohibited or potentially prohibited content unless it can be brought into the category of  MA15+ or R18+  subject to a RAS.  A broader range of online content can be censored than traditional broadcasting services.  Online content which is in the category of either X18+ or RC cannot be made available to the Australian public at all, although  X18+ films can be made available in some circumstances.  Only RC material is banned  in relation to both online and traditional broadcasting services.

The more stringent approach applied to online content is said to be necessary due to the unique challenges posed by the internet given the method of dissemination of material access to which can’t be restricted in the same way that occurs with traditional media.

Exemptions

There are 13 categories of material, contained in s5B(1) of the Classification Act. Any online content which falls within these categories are exempt from regulation. These categories include current affairs, content wholly comprising a documentary record of a hobby or activity, sporting event, family activity, a musical presentation, live artistic performance and a religious or cultural event or activity.  Once again  online content is treated differently in relation to exempt content, as if the online content contains material likely to cause it to be classified as either M or above it won’t be eligible for exemption.

Online content which is  MA15+ and more than just text and/or still images won’t be prohibited content if accessed through a news or currents affairs services where there is no age verification process in contrast to online content for the same category.  There are a number of content services  exempt from Schedule 7 including content comprising parts of programs  previously broadcast by a licensed broadcasting service,  certain SMS services,  internet directories and search engines enabling a user to revive and send emails or voice or video calls.

How should you approach the publication of online content?

As a starting point it is recommended that you consider it’s nature and review any relevant decisions of the Classification Board to predict how it may be classified.  Remember that content is defined broadly and can consist of data, speech, music, text, other sounds, visual images or any combination.  You can make an application in writing to the Classification Board pursuant under Schedule 7 for approval.  Remember only content services with the requisite  “Australian connection” are subject to the online classification system, but the ACMA may still take limited action with respect to overseas hosted online content if accessible to end users in Australia.

As prohibited or potential prohibited online content can’t be made available to users in Australia by content providers with an Australian connection,  companies providing or host online content may consider establishing a RAS to ensure  content isn’t prohibited or potentially prohibited. One of the logistical difficulties for online providers of free content will be establishing a RAS if required, depending on it’s operations and structure and the difficulties associated with establishing such a system.

When reviewing whether the relevant content is prohibited the following are factors to consider; method of delivery, whether content is pictures and text or moving images,  delivered via a news and current affairs service, accessible through a link, and hosted in Australia or overseas.

If it is likely to be classified as M or above consider whether it falls within any of the S5B exemptions, whether it is being made available for a fee, has already been classified by the Board and whether it should be assessed by a   trained content assessor?

In conclusion, when  providing online content you need to make an evaluation of whether it is likely it can be provided under the  regulatory regime or requires classifying first.

There are clearly differences in the way online and premium mobile content is treated compared to traditional broadcast media, which are intended to  meet the unique challenges posed by the internet medium.

SUMMARY OF INTERNET REGULATION

Schedules 5 and 7 of the Broadcasting Services Act 1992 (BSA) prescribes a complaints based take down system for local material or links. When receiving a complaint the Australian Communications and Media Authority (‘ACMA’) decides whether, in its opinion, the Classification Board would, were the content in question to be classified by the Board, be likely to be given a particular classification from RC to certain MA15+.

If the content originates from an Australian host, the ACMA can issue a take down or service cessation notice. If the content is accessible via a link on an Australian site, the ACMA can issue a link deletion notice.

Within Australia the ACMA has broad powers and internet content hosts have little choice but to respond to notices issued by the ACMA.

By contrast, content hosted outside Australia, which constitutes the majority of Internet content is beyond the ACMA’s control.

This provided the impetus for the Australian Government’s proposed mandatory filtering regime. The Australian Government wished to have the means of more effectively censoring access to Internet content outside of the Australian jurisdiction.

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