I let something go once before, but it’s come up again and it won’t do. No one else seems to remember the incident, intriguingly. So, herewith, I’d like to correct the record.

Margaret Simons touched on the issue of what used to be called, quaintly, internet streaming, back at the end of June, and commented on it.

At present, different regulatory regimes apply to free-to-air TV and pay TV, and content delivered over the internet is not regulated as broadcasting at all, due to then communication minister Richard Alston’s 2000 decision that “streaming is not broadcasting”, now looking distinctly short sighted.

Then Jonathan Holmes raised the same issue on Monday night’s Media Watch.

You watch Ten News on The Age’s website. If there’s something you think breaches the rules of good journalism, can you complain to the Press Council? Well, maybe — though Ten News isn’t a member of the council. Or to ACMA? Perhaps, but only if what you watched was broadcast as well. More than a decade ago, then communications minister Richard Alston determined that …

… a service that makes available television programs or radio programs using the internet … — Richard Alston, former communications minister, 12th September, 2000

did not qualify as a broadcasting service. That means it isn’t covered by the codes of practice that regulate broadcast journalism.

In fact, this was one of the biggest communications policy outrages of 2000. In the course of the passage of digital television legislation, the Howard government had tried to give itself some wriggle room in the future to deal with issues around the regulation of audio-visual content provided online. Bear in mind this was more than years ago — no YouTube, no bittorrenting, no iTunes (which was introduced by Apple in early 2001). The government inserted into its digital TV amendments to the Broadcasting Services Act — the ones that handed the free-to-air TV cartel a comprehensive victory that cruelled the development of digital television for most of a decade — a requirement that there be “a review of whether, in the context of converging media technologies, streamed audio and video content obtainable on the internet should be regarded as a broadcasting service.”

Alston had no intention of regulating streaming content via the amendment — the section had been suggested by his departmental secretary, Neville Stevens — but by that stage he’d already acquired his “global village idiot” tag for his Luddite approach to the internet and his view that broadband was only good for gambling and p-rnography. The Internet Industry Association, led by Peter Coroneos, turned the proposed review into a cause célèbre and declared it evidence that Alston wanted to slap TV-style regulations on internet content — maybe even try to impose the sort of licensing requirements that confined television to a cosy cartel. Alston found himself under considerable pressure for no good reason, and no amount of explanation that the proposed review would be innocuous would wash. The global village idiot looked like he thought the internet was ordinary TV and should be regulated accordingly in favour of the government’s mates.

So the review, which had intended to be conducted over the ensuing 18 months or two years, was suddenly brought forward. Brought very forward. A rush job was done within the Department of Communications that concluded — quelle surprise — that internet streaming was not broadcasting. Out came a press release shortly thereafter to announce the happy event. The government washed its hands of the matter.

There was nothing shortsighted about the review; nor was it some sort of regulatory gap. The issue back then wasn’t that television provided over the internet fell outside the television regulatory framework, it was the threat of imposing traditional analog-era broadcasting rules on online content. The example Holmes used is really a furphy. So what if the Ten Network provides content online? It does not need a licence to do so, unlike its broadcasting services, which are licensed because of the public spectrum it uses to provide those services. That’s the key distinction between Ten content on air, and Ten content anywhere else. Why should Ten be subject to greater regulation than YouTube or any other online content provider, when not operating on publicly licensed spectrum?

Well, of course the fashionable answer is “regulatory parity”, the push for similar regulation across all forms of content no matter how different they are. But one company’s “regulatory parity” is another’s deregulation — “regulatory parity” is partly a sleight-of-hand by the FTA cartel, who’d like to have the same sort of lightweight regulation that non-broadcast media have despite operating under a licensed framework involving the use of publicly owned spectrum. Or, if that can’t be achieved, a second-best outcome from the cartel’s point of view would be to impose broadcast-style regulatory requirements on other media, like it has convinced successive governments to do on subscription TV.

Interestingly, the threat of “regulatory parity” to online services is actually greater now than when Richard Alston was carelessly promising reviews of streaming. The issue is not around what presumably is Holmes’s Ten-Fairfax concern about content standards but about Australian content: the Convergence Review local content discussion paper released this week specifically canvasses attempting to place local content requirements on internet services. four of the five models it raises for consideration to support local content involve various types of internet regulation to impose Australian content obligations on “television and radio-like services” or “audio or audio-visual services” .

In this context, the global village idiot looks quite the deregulationist.

*Bernard Keane worked in the Department of Communications from 2000-08.

Peter Fray

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