Chapter 8

The problem requiring attention

8.14Both Acts are around 20 years old, although the Films, Video and Publications Classification Act has been updated several times, most significantly in 2005. The advent and remarkable acceleration of the new forms of communication have created a sea change in the way the public access entertainment content. As we said in the Issues Paper:561

Consumers can now bypass traditional distributors, including broadcasters, and access content directly through a variety of means for consumption at the time and place of their choice. This means traditional tools for regulating content, including watershed viewing times and age-based classification systems become less effective when the distributor is no longer the gatekeeper controlling what consumers access.

In other words the phenomenon of convergence is as much an issue here as it is in the news context.

8.15There are some clear anomalies. Here are two examples. First, films have to be classified and labelled before being distributed to consumers.562  But a “film” is defined as “a material record”, which excludes live streamed material.563  So a film (which includes a DVD) showing explicit material is treated differently from a live streamed performance of exactly the same content.
8.16Second, “exhibiting” a film expressly excludes broadcasting it.564  So films shown on television do not have to be classified or carry labels. (In fact broadcasters often do put up classifications and labels sometimes devised by themselves). Television series are different again, in that their first release is usually on television, even though a DVD may be released later. If that happens the DVD has to be classified and labelled, whereas the original broadcast does not. The system has simply failed to keep pace.
8.17 While the Classification Office does have powers of classification of “publications”, the sheer quantity of the material and the origins of much of it from overseas make this a very limited tool. The Australian Law Reform Commission has given this graphic summary:565

The volume of media content available to Australians has grown exponentially. There are over one trillion websites, hundreds of thousands of ‘apps’ available for download to mobile phones and other devices, and every minute over 60 hours of video content is uploaded to YouTube (one hour of content per second).

8.18As far as the Broadcasting Act is concerned, the BSA can deal only with broadcast material. As we have noted, it has no jurisdiction, for example, over content made available by internet protocol television unless it is live streamed. Nor does it have jurisdiction over online on-demand streaming services such as Quickflix which has recently entered the New Zealand market.566  The BSA’s jurisdiction is tied to a past of platform-based regulation.

8.19A review of this new and complex environment is necessary to see what is needed and, just as importantly, what is feasible. The current legislation based on the mode of content delivery is out of date. New forms of access and convergence are creating increasing problems. Technology is outstripping the law.

Australian Classification and Convergence Reviews

8.20In Australia, two recent reviews have produced helpful reports. In February 2012 the Australian Law Reform Commission produced a report entitled “Classification – Content Regulation and Convergent Media”.567  The report emphasises the importance of platform neutrality in any new system. Given the vast amount of material available the review concludes that it is only feasible to classify feature films, television programmes and computer games. For the rest, the recommended new Classification of Media Content Act should provide for the reasonable steps different types of content provider might be expected to take to restrict access to unsuitable material.
8.21The Classification Review recommends a new single regulator which would have primary responsibility for regulating the new scheme. That regulator would not be concerned with news or current affairs. Its functions would include monitoring and enforcing compliance with classification law; handling complaints about classification; and liaising with relevant Australian and overseas agencies. It would have the power to pursue civil penalty orders against content providers. In its monitoring function, it would have the power to commission relevant research.568
8.22 Also in 2012, the Australian Convergence Review reported.569  This report separates out news, and commentary on news, from other content. In relation to the first it recommends a self-regulatory news standards body. In relation to other content it recommends a new communications regulator to be responsible for all compliance matters related to media content standards. That would include administering the new national classification scheme proposed by the Australian Law Reform Commission. It would have jurisdiction over organisations which meet a quantum threshold in terms of both audience and revenue.570
8.23The regulator would have a general power to set content standards where there was a need for regulatory intervention. It would also be able to set standards for children’s television content. Such standards could take into account how the content is accessed by users, because as the report says “[t]he principle of technology neutrality does not demand that standards be applied in an identical way to all services.”571  Where the regulator is responsible for approving and enforcing content standards, it should have direct enforcement powers and there should be a graduated range of effective remedies. It should have the discretion to determine the most effective complaints procedures.

A New Zealand Review

8.24It is beyond our terms of reference to conduct a review of the entertainment sector. But such a review is urgently needed.572 A solution needs to be found to the anomalies which have arisen in the present system. It needs to be brought up to date.

8.25We do not wish to foreshadow the outcome of any such review, but suggest that it should take the following matters into account:

  • Adults should be able to make choices as to the content they wish to view. Clear information is important in enabling that choice.
  • Children and young persons should be protected as far as possible from access to unsuitable content.
  • Content which is objectionable in that it is harmful to the public interest should be unlawful and all practical steps should be taken to prevent access to it.
  • Regulation should be platform-neutral. Any regulatory regime needs to be broadened to take account of the expanded digital environment and its focus should therefore be on content, rather than on the format or mode of delivery. Broadcasts, films, serials and other forms of entertainment should be dealt with in a consistent way.
  • There should be a channel through which members of the public can complain about unsatisfactory content.

8.26We believe the idea of a single “converged” regulatory body merits close consideration, just as we have recommended for the news sector. This would involve creating a body which would combine the functions of the Office of the Chief Censor and the BSA and extend to fill gaps for which there is presently no solution.

8.27In this report we recommend an independent voluntary standards body for news and commentary on news.573  We have explained that independence, in particular independence from government, is vitally important in that context.574  Such a construct may be less suitable for entertainment content. Given the important policy of protecting children’s interests, our preliminary view is that the state needs to play a part, even though it may perhaps be a co-regulatory part, in the regulation of entertainment content.
8.28Nor is the voluntary system that we recommend for news575  necessarily appropriate either. Entertainment content providers should not be able to opt out of a protective system of this kind. So any new regulator of entertainment content may need to be statutory and have appropriate powers and sanctions available to it.

8.29Above all, any new system needs to acknowledge the practicalities of the situation: there is only so much the law can do. But the extent of what it can do should be realistically explored. At the very least, anomalies of the kind we referred to earlier should be able to be eliminated or at least reduced.

8.30The two Australian reports on classification and convergence576  should be a useful reference for a New Zealand review, although what is suitable for another jurisdiction may not always fit New Zealand’s needs and culture. But the problems to which we have referred are of such an unusual character that the Australian solutions should at least be a helpful starting point. It would also be worth considering the desirability of developing a consistent trans-Tasman approach that fosters co-operation between national regulatory bodies, to the benefit of consumers.
561Law Commission The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP27, 2011), at [6.137a] [Issues Paper].
562Films, Videos, and Publications Classification Act 1989, s 6.
563Section 2.
564Section 2, definition of “exhibit to the public”.
565Australian Law Reform Commission Classification – Content Regulation and Convergent Media (ALRC R118, 2012), at 25-26 [Classification Review].
567Classification Review, above n 565.
568Australian Law Reform Commission Classification – Content Regulation and Convergent Media (ALRC R118, 2012), Summary Report.
569Australian Government Convergence Review (Final Report to the Minister for Broadband, Communications and the Digital Economy, Sydney, 2012) [Convergence Review].
570Executive Summary at ix, describing entities which meet the quantum threshold as “content service enterprises”.
571At 56.
572A review of content regulation was to be considered by the government last year, although we understand that this decision was deferred pending the outcome of this review: see Ministry for Culture and Heritage “Briefing for the incoming Minister of Broadcasting” (December 2011) at 8-9.
See also Ministry for Culture and Heritage Broadcasting and New Digital Media: Future of Content Regulation (Consultation Paper, 2008); Ministry for Culture and Heritage and Ministry of Economic Development Digital Broadcasting - Review of Regulation, vol 1 - the implications for regulatory policy of the convergence between broadcasting, telecommunications and the internet (Research Paper, January 2008) and vol 2 (Discussion Paper, 2008).
573Ch 7, R1. Ch 7 describes the News Media Standards Authority (NMSA) that we recommend be established.
574Ch 7, R11.
575Ch 7, R6.
576Classification Review, above n 565; Convergence Review, above n 569. Other current reviews of interest are noted in ch 6, fn 346.