The eagle has landed. Crikey has obtained a leaked copy of the Government’s draft legislation to censor media content online, using the film classification system. Read the whole thing here, and Crikey’s previous reporting on this issue here and here.

Crikey understands that this draft, issued on 30 November last year, has been superseded. Nevertheless there is plenty here to show why content providers, particularly book and magazine publishers, are in such a tizz – partly because they haven’t been consulted. Book publishers will be reading this draft for the first time here.

A quick look highlights the underlying problem: close to impenetrable drafting as the legislators try to cover the complications of convergent technology and emerging forms of media content. Look at the definition of “content service” on page nine – “a service that delivers content to persons having equipment appropriate for receiving that content, where the delivery of the service is by means of a carriage service”. This is followed by more than a page of exceptions, including licensed broadcasting services, re-transmitted television programs, search engines, news and current affairs services and “user based content services”, which are further defined elsewhere and seem to include outlets like YouTube. The complications multiply the further you plough into the definitions.

So much for the legalese; what are the guts?

This draft Bill would amend the Broadcasting Services Act to make it an offence to provide “prohibited” or “potentially prohibited” content over the internet or on mobile phones.

Prohibited content is:

  • Anything that has been refused classification (effectively banned) or classified X 18+. (The rating given to strong s-xually explicit material, which is currently only legal to sell and distribute in the ACT and Northern Territory).
  • Anything that has been classified R 18+ (the rating given to explicitly violent material) or MA 15+ (the rating given to films not to be viewed by unaccompanied minors under the age of 15), unless access is restricted.

Hardly anyone would argue with restricting extreme violent and s-xual content, but there are nevertheless things to worry about here. First, there are many books on open sale that might easily fall in to the MA 15+ category.

Films that have been given the MA 15+ rating in recent years include Saving Private Ryan and the Geoffrey Rush vehicle Quill (read more about the system of film classification here). So how would books such as Dostoevsky’s Crime and Punishment or Nabokov’s Lolita or, more recently, Nikki Gemmell’s Shiver or Lionel Shriver’s We Need to Talk about Kevin fare? It is likely they would attract an M 15+ rating too, meaning that what is legal to sell unrestricted in bookshops or put on library shelves could become restricted on line.

Meanwhile s-x industry advocacy group the Eros Foundation points out that X18+ content would be completely prohibited online, although it is legal to sell to adults in the ACT and Northern Territory. Meanwhile extremely violent material is more leniently treated.

Most worrying of all, though, is that it would also be an offence to provide “potentially prohibited content’, which is defined as stuff that has not been classified, but where there is “a substantial likelihood” that if it were classified, it would be banned or rated MA15+, R 18+ or X18+.

This leaves providers of content second guessing themselves, or forced to submit content for classification with the accompanying fees.

Bad enough for big commercial content providers, but there is also the potential for blogs to get in to trouble. The Bill defines a “commercial content service” as anything operated for profit. These days many bloggers earn a few dollars by running ads on their sites. Would this count as “for profit” or not? Watch out, too, the emerging media services such as the Podcast Network, which is most certainly “for profit” but relies on dozens of semi-professional content providers.

Classification of live streamed content is also covered in the Bill, and is a nightmare. Each segment of ten minutes would have to be separately assessed to see whether it would be “substantially likely” to be prohibited. Watch out Big Brother, but also watch out operators of webcams and funniest home video sites – the minute you try to turn a buck.

There is much more in the Bill, but now it’s in the public sphere the lawyers can sweat over it. Meanwhile it has already been redrafted. Watch this space.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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