The Effects on Content Providers

Abstract

Much of the criticism of the government censorship legislation has focused on the liabilities of ISPs, and in particular on the blocking of content sourced from overseas. The concern here is with the effects of the legislation on Australian content providers and the content industry.

Background

Most Australian content-providers are not large corporations. They are individuals, non-profit organisations, and small businesses. It is important to keep this in mind. When reading "content-provider" in what follows, you should picture an individual (perhaps a teenager) with their own home page, a group of friends running a small online magazine (perhaps for fan-fiction), or a small organisation (perhaps providing resources and advice for the unemployed). There are hundreds if not thousands of such content-providers for every Ninemsn or Fairfax.

Regulation of R-rated Material

The legislation creates regulations for the publication of R-rated content, with classification done using the Film and Video guidelines.

Internet content hosted in Australia is prohibited content if: ... (b) the content has been classified R by the Classification Board and access to the content is not subject to a restricted access system.

If the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA must give the relevant Internet content host a final take-down notice directing the host not to host the prohibited content. [1]

What does R-rated mean?

Looking at the OFLC's "Cinema & Video Ratings Guide" we find:

Material considered likely to harmful to those under 18 years and/or possibly offensive to some sections of the adult community warrants an R classification.

To obtain an MA rating - that is, to avoid an R-rating - material must meet the following guidelines:

Language: crude language may be used, but not when it is excessive, unduly assaultative, or sexually explicit.

Sex: sexual intercourse or other sexual activity may be discreetly implied or simulated.

Violence: realistic violence of medium intensity may be depicted, but violent depictions with a high degree or realism or impact are acceptable only if contextually justified.

Other: drug use may be depicted, but not in an advocatory manner. Supernatural and horror special effects usually warrant an MA classification, but not if overly graphic or impactful.

It is obvious that many books classified Unrestricted as publications and sold without any controls in bookshops would fail to satisfy these criteria and would hence be given an R-rating (or higher) for the purposes of this legislation.

Restricted Access Systems

What are acceptable 'restricted access systems'?

(1) The ABA may, by written instrument, declare that a specified access-control system is a restricted access system in relation to Internet content for the purposes of this Schedule. A declaration under this subclause has effect accordingly.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(2) In making an instrument under subclause (1), the ABA must have regard to:

(a) the objective of protecting children from exposure to Internet content that is unsuitable for children; and
(b) such other matters (if any) as the ABA considers relevant. [3]

Until the ABA releases specifications for access control systems, all R-rated material will be "prohibited content".

It's not entirely clear what "restricted access systems" will be considered acceptable. Elsewhere there are references to "adult verification procedures", however, and the obvious interpretation is that systems such as AdultCheck, currently used on many pornography sites, are what is envisaged.

Unfortunately forcing sites to install such systems creates several problems:

• Extra features such as scripting and server configuration are required to implement adult verification systems. These are often unavailable to small content providers.

• Many, if not most, visitors won't bother going through a verification procedure. On the Web, attention spans are short and barriers to access are low, so even a minor extra barrier will deter people. Even a simple registration requirement does this, and a requirement to obtain an adult ID, with all the privacy concerns that raises, will put off almost all visitors.

  (The only sites that can work under such a scheme are those with 'magnet' content, such as genuine pornography sites. Few sites with R-rated material will survive.)

• Search engines don't index material protected by access controls. Small sites that can't afford advertising depend on search engines to draw visitors.

• Many sites contain content that would be rated in different categories. Without the resources to classify their content, publishers will be forced to take the safe option and "protect" the entire site, thus restricting access to material which is not even R-rated.

The net effect of this is to effectively cripple any site using adult verification.

Content-providers are not trained in censorship law. Most have little or no understanding of the censorship system, let alone the skills and background necessary to apply a classification system designed for films and videos to web pages. The boundaries between classifications are convoluted and difficult to ascertain, even for trained censors. This is why the OFLC charges some $4000 for a G/PG/M/MA/R/X/RC classification.

Moreover, it is not clear that content-providers will be able to ask the OFLC to classify material for them, even if they can afford it. It appears that only the ABA will be able to request that Internet Content be classified by the OFLC -- and the ABA will only act in response to complaints, not concerns by content publishers. So the result of this legislation will be widespread uncertainty, even among those not publishing R-rated content.

Between the actual effects of access control systems and the general uncertainty created by application of censorship to such a range of of materials, including ones distributed without controls in print, this legislation will, if actually implemented, push content providers out of Australia. Users and businesses will opt to host their content overseas, where they simply don't have to worry about such problems.

Moreover, the legislation provides no controls at all on overseas R-rated content, so the imposition of access control systems on Australian R-rated sites will have no effect on the unrestricted availability of R-rated material to minors! The only result will be the creation of barriers in the online content industry that affect only Australians, in a bizarre kind of reverse tariff.

Conclusions

1. The Bill's regulation of R-rated Internet content will achieve nothing towards preventing children accessing it, since it only affects the 1 or 2% of content hosted in Australia.

2. The Bill's regulation of R-rated content will cripple the Australian content-hosting industry and adversely affect Australian content providers. It will disproportionately hurt smaller content providers.

Analysis of 1999 Legislation << Internet Censorship in Australia << Danny Yee