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Communications Legislation Amendment (Content Services) Bill 2007

CHAIR —We welcome representatives from ACMA. We have heard from a variety of witnesses, and the senators have some questions for you.

Senator WORTLEY —Welcome to our telephone hook-up. As a result of the controversy surrounding the Big Brother turkey-slapping incident last year, Minister Coonan announced that the government would introduce legislation to extend content regulation to video streamed on the internet. Is this that legislation?

Ms O’Loughlin —Yes, it is.

Senator WORTLEY —However, at the same time that this bill was being drafted, ACMA did a review of reality TV, did it not?

Ms O’Loughlin —Yes, we did.

Senator WORTLEY —And that review was released to the minister on 1 April this year?

Ms O’Loughlin —It was provided to the minister on 30 March this year.

Senator WORTLEY —Two months later, the minister has still not released the report. Can you tell us whether the report recommended any of the measures contained within this bill?

Ms O’Loughlin —The report is a report to the minister, so I am not at liberty to indicate to you what the content of that report was.

Senator WORTLEY —So you cannot even say whether or not any of the measures contained within this bill were included in that report?

Ms O’Loughlin —The reality TV report was provided to the minister.

Senator WORTLEY —Do you know when that is going to be released?

Ms O’Loughlin —That would be for the minister.

Senator WORTLEY —The aim of this bill is to protect children from accessing unsuitable material from the internet and through other information delivery technologies, isn’t it?

Ms O’Loughlin —Yes.

Senator WORTLEY —I realise there are significant complexities in regulating such technology, but if this is the aim, can it be said to be achieved when the bill only applies to content services with an Australian connection?

Ms O’Loughlin —I think you have identified that this is a very complex area. It is very similar in that regard to the regulation of content on the internet. For the last few years ACMA have had in place a range of compliance enforcement measures in the internet space, which we believe work very effectively, and we see this bill as an extension of those measures into the mobile phone arena.

Senator WORTLEY —Doesn’t this mean that a great deal of inappropriate material will still be available?

Ms O’Loughlin —It aims to limit the amount of prohibited or illegal material being made available. That is certainly its intent.

Senator WORTLEY —But it will actually still be available, is that right?

Ms O’Loughlin —It is obviously a little difficult over the phone, but I am not quite sure whether there were particular areas of concern.

Senator WORTLEY —Under the bill the role of ACMA is significantly increased. How will ACMA manage this new role?

Ms O’Loughlin —Yes, we have a number of new roles under the bill. We see those as being, as I mentioned, quite similar and an extension of our existing role in dealing with internet content. The bill gives us responsibilities around investigating complaints about prohibited and potentially prohibited content. Where we are responsible for registering and monitoring industry codes we will be responsible for undertaking necessary enforcement action. We have a number of powers under the bill, including directions, formal warnings and the capacity to issue interim and final take-down notices and service cessation notices and to undertake criminal or civil proceedings. We see these as similar to our existing powers under the internet content schedule 5 regime and we are very comfortable that we know how these types of roles work and we believe that we can implement them effectively.

Senator WORTLEY —The role in the complaints handling procedure would obviously be a significant increase for ACMA. Has a new division been set up to deal with this?

Ms O’Loughlin —We believe that we would be adequately resourced to implement and administer the scheme.

Senator WORTLEY —Have new people been appointed or will you be working with the same people?

Ms O’Loughlin —We have a number of officers across the authority who deal with these issues in the internet space and we would be looking to use those resources and where necessary expand those resources.

Senator WORTLEY —So at this stage there are no additional staff being employed to look after these services?

Ms O’Loughlin —We are constantly reviewing the resources we need to do our job and we can move fairly swiftly to get additional resources on board where needed.

Senator WORTLEY —How is it being funded?

Ms O’Loughlin —My understanding is that it is through our base funding.

Senator WORTLEY —And anticipated costs?

Ms O’Loughlin —I do not have that detail at hand.

Senator WORTLEY —Are you able to access that detail?

Ms O’Loughlin —Yes; it will take me a little time but I can certainly do that.

Senator WORTLEY —I refer now to the telecommunications service provider determination. How does the bill affect the MPSD?

Ms O’Loughlin —The mobile premium services determination which is currently in place covers in broad terms two areas. One is content matters and the other is other protection matters such as terms and conditions for mobile premium services. We are aware of AMTAs concerns about the application of the mobile premium services determination and the industry scheme that is underneath that. Once the legislation is passed we would move to look at that determination again to see if the bill has picked up the content matters under the original determination and to review the determination to make sure that we were not adding to the confusion in the industry between having an existing determination and new legislation.

Senator WORTLEY —As it currently stands, will mobile service operators be subject to two regulatory regimes?

Mr Humphries —I think we would be looking at addressing the sorts of things Nerida was just talking about fairly soon after the legislation is passed.

Senator WORTLEY —So as it currently stands they would be, but you are intending to address that; is that correct?

Ms O’Loughlin —That is right.

Senator WORTLEY —Do you have a time frame on that?

Ms O’Loughlin —We realise people want some certainty very quickly so we would move as fast as we can. We would also consult with the industry on it. It is fair to say, though, that because there are consumer protection measures in the determination as well as content matters, we want to make sure that the things that exist under the determination which are not picked up by ACMA are still maintained.

Senator WORTLEY —I would just like to know why ACMA did not discuss this issue with the mobile telecommunications sector prior to the bill’s release.

Ms O’Loughlin —I think we have been aware of the issue but we have been waiting till the passage of the legislation to move forward in terms of our review of the determination.

Senator WORTLEY —So the issue was not raised until after the release of the bill; is that right.

Ms O’Loughlin —No, because the mobile premium service determination was put in place as an interim measure, we were always aware that if legislation was passed by parliament there would be a need to go back and relook at that interim measure to see if it was still needed.

Senator WORTLEY —But given that the concerns were there and that you were aware that they were there, why weren’t they addressed previously? Why haven’t they already been addressed in this bill?

Ms O’Loughlin —I am not quite sure I understand your question but the determination is there to provide guidance on these matters currently. Until the legislation is passed, we would not be looking at removing that determination.

Senator BIRMINGHAM —When the bill is passed you will be looking to, as quickly as possible, bring the determination and the bill in line; obviously, it would have been pre-emptive in a sense to try to change the determination prior to having the final shape of the bill once passed by parliament.

Ms O’Loughlin —Yes.

Senator WORTLEY —And this time there will be thorough consultation?

Ms O’Loughlin —We will certainly be consulting extensively with the industry. ACMA consulted extensively with the industry in the development of the determination and the mobile premium services industry scheme—the instrument and the scheme itself.

Senator WORTLEY —I would like to move on to link services. Under the bill, ACMA can issue a link service provider with an interim or final link deletion notice if it believes that end users in Australia can access prohibited or potentially prohibited content using a link provided by a link service with an Australian connection. There is some confusion as to whether the links in respect to which these notices will apply must be an Australian link or whether the site hosting the links must be Australian. Can you provide some clarification on this?

Mr Humphries —Yes. My understanding is that the link itself must be hosted in Australia but that the content itself could be either in Australia or overseas.

CHAIR —That was a major concern of Microsoft, of course. Microsoft had an amendment related to that. Are you aware of that amendment?

Ms O’Loughlin —Unfortunately I do not have that in front of me at the moment.

CHAIR —They wanted to:

(a) amend the Content Services Bill to provide that links services are only regulated where the website on which the links appear is hosted in Australia; and

(b) introduce a “user generated content” exception to the definition of “content service” so that all content that is substantially generated by an end user of a content service is excluded from regulation.

Do you want to make a quick comment on that?

Ms O’Loughlin —I think those are matters for the department.

Senator WORTLEY —There are a number of exclusions to the definition of  ‘content service’ in the bill reflecting the government’s intention that contact regulated under existing broadcasting regulatory frameworks should be excluded from the scope of the bill. ASTRA raised concerns that subscription TVs on demand services, such as Foxtel, may fall into the definition of content service and this may be an unintentional consequence of the bill. What is ACMA’s view on this?

Ms O’Loughlin —Again, that is probably a matter for the department.

Senator WORTLEY —We will move to service cessation notices. For live content, ACMA may issue a service cessation notice and ASTRA argued that it is unclear whether a service cessation notice would apply to each individual stream of line content or the services as a whole. Would ACMA clarify this situation, in its view?

Ms O’Loughlin —I apologise—I might need to look at the detail of ASTRA’s submission just to check exactly what their concern is in that area. I know that we are on a very tight time frame. I am happy to take it on notice and come back by the end of today if that is appropriate.

Senator WORTLEY —That would be appropriate. I do have one last question regarding ASTRA’s submission. The bill requires ACMA to have a declared restricted access system in place for prohibited content—that is, 18 plus and MA15 plus. It is possible but not mandatory for ACMA to declare different systems for these classifications. ASTRA argued that ACMA needs to clarify where it is at with the development of the instrument that will define what will be classified as a restricted access system. Could you look at that as well with regard to the ASTRA submission and provide us with—

Ms O’Loughlin —That is very much in keeping with the questions that you have raised around the determination. We understand the industry’s concern about getting clarity about the restricted access system and we understand that we need to move that very quickly and in consultation with the industry to get some clarity around that issue.

CHAIR —I would like to ask you a couple of questions. Under clause 47, ACMA can, following an investigation, direct a hosting service provider to take steps to ensure that either a type A or a type B remedial situation is in place. The definitions of these situations containing clauses 47(6) and 47(7) of the bill do not make clear what needs to be done to ensure compliance. The requirements in both cases are that the provider not host the content and there seems to be a lack of definition of ‘hosting’. This suggests that the firm would need to delete all copies of the content in its possession, which could be problematic if the firm needs to maintain a copy for evidence or if it wishes to contest a classification decision. The bill also states that these remedial situations will only be satisfied when the content is ‘not provided by a content service provided to the public’. This appears impossible to satisfy as any given hosting service provider can only cease to provide the material itself; it cannot stop the content creator from creating another service provider to host their material on the net. Do you have a response to this? We suggest there should be a definition of ‘host’ to (a) make clear that it refers to material making available to the public and (b) ensure that remedial situations are satisfied when a content service provider does not provide the content to the public, whether payment by fee or otherwise, by use of a hosting service provided by the hosting service provider. Are these questions for the department?

Ms O’Loughlin —They are probably questions for the department, but I am happy to just provide information for the committee. We see these provisions as being quite similar to the provisions we have under internet content, where those compliances on the internet service provider to take down content that we are investigating either in an interim manner or in a final manner as quickly as possible. So the emphasis we see here is to make sure that, where the content has been identified as prohibited or could be seen to be prohibited, the host can move quickly to take that content down so it is not accessible by the public. That is certainly the way we read the intent of the legislation. But, in terms of your questions around the detail of the clauses, that might be something that the department can address.

CHAIR —I have two more questions. The first is about the relationship to the mobile premium services determination. It seems unclear how this bill will affect the regulatory scheme operating under the MPSD. Certain provisions of the bill clearly conflict with the MPSD and would override the relevant MPSD provisions to the extent of the inconsistency. There are no provisions addressing transition from the MPSD and the related industry Mobile Premium Services Industry Scheme, and this leaves as uncertain the regulatory status of a number of services that are not covered as comprehensibly in the bill, such as chat services. In addition, unlike the MPSD, the bill is not limited to mobile content provided via premium services or proprietary network services. Do you wish to make a comment on that?

Ms O’Loughlin —As I mentioned earlier, we are very aware that there are different requirements under the interim mobile premium services determination and Mobile Premium Services Industry Scheme which are not picked up in this bill, but there are also parts of the determination and scheme that are significantly picked up by this bill. As I mentioned, we are well aware that we need to move very quickly to review the legislation as finally passed with the determination and the scheme so that we can make sure the industry has clarity around its obligations under the bill and also the residual obligations that exist in the determination which are not picked up by this bill.

CHAIR —The last question I have is about services cessation notices for live content services. The breadth of the service in respect of which ACMA is able to issue service cessation notices under clause 56 appears to us to be unclear. Unlike take-down service notices and link deletion notices, which are directed specifically at the offending content, service cessation notices are instead directed at the live content service itself. Will ACMA be required to publish guidelines on how it will make decisions regarding these matters?

Ms O’Loughlin —If the industry felt that it were helpful for us to publish guidelines, we would certainly be willing to do so. That is something that obviously we do in other areas of our responsibility and we could certainly talk to industry about where their concerns are and what sort of clarity they would like from us.

CHAIR —We have had some advice from industry that they would like guidelines. I will now pass over to Senator Wortley.

Senator WORTLEY —Microsoft argue that, under the bill:

… service providers such as Microsoft would be classed as offshore links service providers and fall within the scope or regulation whenever the content that they link is hosted in Australia … Microsoft considers that it is inappropriate and unnecessary to regulate offshore links service providers in these circumstances.

They argue that the bill should be amended:

… to provide that link services are only regulated where the website on which the links appear is hosted in Australia.

How do you respond to this?

Mr Humphries —I think the view from us is that the intention of the legislation, as we understand it, is to prevent the material that is prohibited being readily accessed. If that is through links, that is simply one of the mechanisms through which the content would be accessed. So it simply provides another mechanism or tool for ACMA to prevent prohibited content being accessed.

Senator WORTLEY —Can the decisions of trained content assessors who determine whether commercial content should be prohibited be referred on appeal to ACMA or the AAT? Can you provide some detail as to the appeals procedure.

Ms O'Loughlin —Certainly. Can I ask you to clarify your reference to work undertaken by trained assessors or the assessment—

Senator WORTLEY —Can the decisions of the trained content assessors who determine whether commercial content should be prohibited be referred on appeal to ACMA or the AAT?

Ms O'Loughlin —I will take that on notice and come back to you on it.

Senator WORTLEY —Will that be this afternoon?

Ms O'Loughlin —Yes.

CHAIR —Thank you for your evidence.

Ms O'Loughlin —I thank the committee for its indulgence in allowing us to give evidence by telephone.

CHAIR —We will now suspend for five minutes for a private meeting.

Proceedings suspended from 12.16 pm to 12.22 pm