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IIC Australia Update, March 2012

The following summary outlines the recent activities of the International Institute of Communications Australia (IICA) as well as general Australian media and communications issues.

Presentations

IICA Committee members Debra Richards and Gail Hambly recently gave a presentation to the Network Insight Advisors Meeting titled 'Freedom of communications: back to the 1950's'. The Network Insight Advisors are senior representatives of the media and communications industry in Australia. The presentation involved a summary of three regulatory reviews that are currently underway in Australia including The Convergence Review, The Finkelstein Inquiry into the News Media and the Australian Law Reform Commission's Classification review.

The presentation was well received and it also provided the opportunity to let Network Insight Advisors know about the upcoming IIC Conference in Singapore.

Australian Media and Communications policy and regulatory news

There have been several policy and regulatory developments in the first quarter of 2012. The Government has indicated that while a number of current reviews have been conducted separately the outcomes of each will ultimately influence overall decision making. The following points, prepared by Ros Van Vliet from Ausfilm, summarise and highlight some of the main aspects of the recommendations contained in The Convergence Review Interim Report, The Finkelstein Inquiry into the News Media and the Australian Law Reform Commission's Classification review.

The final Convergence Review Report is due to be presented to the Government this week. The Convergence Review was established in December 2010 to review policy and regulatory frameworks that currently apply to the Australian media and communications landscape. The interim report, published in December 2011, contains a number of significant amendments to the current rules.

These include:

• Establish a new independent regulator for content and communications (the regulator) at arm's length from government and industry. The proposed regulator could make rules within the policy framework set by Parliament. The proposed regulator could apply self-regulation, co-regulation, or direct regulation with range of appropriate sanctions.
• Abandon licensing as a precondition for the provision of content – so enterprises can communicate freely in a converged environment. But specific content regulation (beyond general law) will still be required to promote public interest outcomes. Some enterprises will still need to be licensed to use scarce spectrum.
• Concept of 'Content Service Enterprise' (CSE) – determined by threshold criteria (scale and nature of operations). CSE's are not emerging services, start-up businesses or individuals. CSE's will have obligations related to content standards, media diversity and Australian content.
• Separate most content-related obligations of broadcast enterprises from licence to use spectrum.
• Revise number of voices rule to apply to changes in control involving CSEs – develop public interest test to ensure diversity is taken into account where CSEs of significant national influence are involved in mergers or acquisitions.
• Powers to promote fair and effective competition in content and communications markets – focus on content related issues and coordinate with the Australian Consumer and Competition Commission (ACCC). Access to content may be bottlenecked in converged environment, especially in area of exclusive content rights and bundled services.
• Require CSEs to support Australian content by committing a percentage of total program expenditure or contributing to converged content production fund – premium TV content exceeding a cost threshold should qualify for 40% producer tax offset to remove distinction between how film and high end TV are treated.
• Commercial free to air networks using spectrum should continue to meet programming amounts of material local significance.
• Revise ABC and SBS charters to reflect all their services including online to give commercial operators increased certainty re boundaries of public broadcasters.
• Content standards should reflect the individual rights of adult Australians to read, hear, see and produce content of their choosing within the law (balance with appropriate protections from offensive content especially regarding children).
• New legislation will be needed to implement changes recommended and reflect convergence.
• In March 2011 the Attorney General referred the National Classification Scheme to the Australian Law Reform Commission (ALRC). The subsequent review considered existing Commonwealth, State and Territory classification laws, the current classification categories contained in the Classification Act, Code and Guidelines, the rapid pace of technological change, the need to improve classification information available to the community, the effect of media on children and, the desirability of a strong content and distribution industry in Australia. A final report was tabled in Parliament on 1 March 2012. The following recommendations were contained in the report:
  • Platform neutral regulation – a new Classification of Media Content Act covering publications, films, computer games (currently under the Classification Act and state and territory enforcement legislation), online and mobile content (under BSA) and broadcasting and subscription TV content (under BSA).
  • Avoid inconsistencies under current scheme and make scheme more adaptive. Also avoid double handling of similar content on different platforms.
  • Consistent laws for what content must be classified, what content must be restricted to adults and what content is prohibited.
  • Single set of classification categories and criteria.
  • Clear scope of what must be classified – Content has grown exponentially the report notes that it is impractical for all content to be classified. Scope confined to feature films, TV programs and high-level computer games if they are both made and distributed on a commercial basis and likely to have significant Australian audience. Obligations not generally applied to persons uploading online on a non-commercial basis (also excludes application service providers, host providers and internet access providers – except for prohibited content).
  • Focus on restricting access to adult content – content providers required to take reasonable steps to restrict access to all adult content (R18+ or X18+). Way of dealing with sheer volume of adult content on internet is to restrict access to this content rather than formally classify it. New Act to provide essential requirements for restricting access and 'reasonable steps' should be in industry codes and Regulator standards. For Online content warnings and the use of age-verification systems or promotion of parental locks etc, are proposed as relevant.
  • Co-regulation and industry classification – A greater role for industry to classify content leaves government to focus on most concerning content (re community standards and protection of children). Most content to be classified by authorised industry classifiers, subject to regulatory oversight. Also system to deem classifications as equivalent Australian classification. Also industry classification codes for application of classification markings, display requirements for restricted content, reasonable steps to restrict access and complaints handling.
  • Classification Board benchmarking and community standards – Retain classification board as independent statutory body for making key classification decisions and reviewing decisions – continue to classify films for cinema release and computer games likely to be classified MA 15+ or above. Classification categories and criteria harmonised and combined so that the same are applied in classification of all media.
  • An Australian Government scheme – presently enforcement is the responsibility of states and territories – contributes to inconsistencies. Australian government to take over this role.
  • A single regulator – responsible for all forms of content regulation including classification. Functions similar to Classification Branch of Attorney General's Department; the Director of the Classification Board; the Department of Broadband Communications and the Digital Economy (DBCDE) and the Australian Communications and Media Authority (ACMA) – include encouraging, monitoring and enforcing compliance with classification laws; complaint handling; authorising industry classifiers; facilitating industry development of codes and approving and registering them; liaison (domestic and international) other regulators and law enforcement; educating.

The Report of the Independent Inquiry into the Media and Media Regulation (Finkelstein report) was published on 28 February 2012. The inquiry was called in light of the UK phone hacking scandal and subsequent Leveson investigation into the press. Greens Senator, Bob Brown was active in calling for an inquiry into the Australian and a number of members of Parliament also expressed concerns of bias in News Limited papers. A number of issues and recommendations came out of the 470 page report, these were:

• Ordinarily preferred option would be self-regulation, but this has not been effective. Full government regulation goes too far – need an independent system that allows regulated parties to participate in the setting and enforcement of standards (as is the case now) but with participation being required rather than voluntary ('enforced self-regulation') - newspapers should not be able to 'opt-out'.
• Setting obligatory minimum standards will better serve society and enhance democracy.
• Establish an independent statutory body funded by government - the 'News Media Council' (NMC) to take over the functions of the Australian Press Council (APC) and ACMA.
• Independent body to appoint members of the Council.
• News Media Council to develop standards of conduct based on existing codes; investigate and resolve alleged breaches of standards; report on state of news media; educate news media about standards; educate public about standards and its existence.
• Have supervision of standards of all news media on all platforms – consistent regulation.
• Define who should be 'the media' and subject to its jurisdiction (eg publishes over 3000 copies of print per issue or a news site with more than 15 000 hits pa).
• No need to complain to media outlet first, but NMC could refer a complaint to the organisation in the first instance (eg ABC and SBS have dedicated complaint handling sections).
• Attempt to resolve complaints informally first through discussions with media outlet.
• If not resolved, complaints should be dealt with by a panel of members.
• Deal with complaints on the papers only and not by hearing
• Strict timetable – resolution within days or weeks (not months) – eg media outlet has 2 days to respond and panel then has a further 2 days to resolve.
• Remedial powers – require publication of correction; withdrawal of an article from publication (via internet); publish a reply by a complainant or other relevant person; publication of NMC's decision
• Enforcement via court for an order compelling compliance.
• No internal appeal from, or internal merits review of, a determination. No external merits review (via AAT).

Media organisations have subsequently refuted the recommendations contained in the report as unnecessary and a threat to the freedom of the press.

Other current media and communications issues in Australia

Optus TV Now and copyright On 1 February 2012 the Federal Court of Australia, in a landmark ruling, found that the recording or watching of a television broadcast through Optus' TV Now service did not infringe copyright. The cloud based Optus TV Now service allows users to record live free to air programming and replay it back on compatible computer and mobile devices within two minutes after programs have commenced broadcasting. The Australian Football League (AFL), the National Rugby League (NRL) and Telstra have subsequently appealed the ruling through the full Federal Court. Copyright review The Australian Law Reform Commission has announced an inquiry that will seek a review of whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment. The terms of reference for the review are expected to be announced shortly. Broadcasting Services Amendment (Anti-siphoning) Bill 2012 A bill to amend the Anti-siphoning rules was introduced into Australian Parliament on the 22nd March 2012. The bill contains a number of amendments including; empowering the Minister to declare specified events as anti-siphoning events and to provide for two tiers of anti-siphoning events: Tier A and Tier B. Tier A anti-siphoning events would include events of international or national significance. Tier B anti-siphoning events would include events of international, national, or local significance. In addition, the Minister may specify that certain Tier B anti-siphoning events are to be dealt with on a grouped basis.

Re-establishment of the IICA website

The IICA is in the process of re-establishing an online presence in Australia. The site will outline the scope and role of the wider organisation. It will also be used as a vehicle to promote the activities of the Australian and international chapters, especially in the lead up to the 2012 conference.

Sponsorship activities – The Communications Policy & Research Forum – November 2012

The IICA recently sponsored the post conference drinks and launch of AU Kids Online report into the online opportunities and risks of children aged 9-16 at the Communications Policy and Research Forum (CPRF).

The forum is the largest annual gathering of communications knowledge in Australia that provides a springboard to serious thinking and data about the state of media, telecommunications and the Internet. The forum is well and attended and it is also supported by ARC Centre of Excellence for Creative Industries and Innovation, Australian & New Zealand Communication Association (ANZCA), Centre for Media and Communications Law, University of Melbourne, Centre for Media History, Macquarie University, Cyberspace Law and Policy Centre, Communications Law Centre, Institute for Social Research, Swinburne University, Journalism and Media Research Centre (JMRC), University of NSW, Network Insight Institute, Public Communications Research Cluster, University of Canberra and Smart Services CRC.

IICA Chair Michael Gordon-Smith and IICA Deputy Chair Debra Richards chaired sessions at the CPRF throughout the day. This is the fifth year that the IICA has supported this event because it provides an important forum for similar professionals and organisations to explore and address domestic and global media and communications policy and regulatory issues.

IICA Committee Meeting April 2012

The next IICA committee meeting will be held during April 2012. The meeting will discuss current communications and media issues as well as strategies to promote the upcoming IIC conference.

Joanne Ryan and Debra Richards