Submission

October 2001

Review of the Classification Guidelines for Films and Computer Games

This is a submission in response to the discussion paper issued by the Office of Film and Literature Classification.

Table of Contents

About EFA

Electronic Frontiers Australia (EFA) is a non-profit national organisation formed to protect and promote the civil liberties of users and operators of computer based communications systems. EFA is independent of government and commerce and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting civil liberties. EFA was formed in January 1994 and incorporated under South Australian law in May 1994.

Our major goals are to advocate the amendment of laws and regulations in Australia and elsewhere (both current and proposed) which restrict free speech, and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.

Introduction

In preparing this submission in response to the OFLC Discussion Paper, EFA has made a detailed study of film classification systems in use in a number of countries, most of which have societies comparable with Australia. The systems examined were those of Britain, Canada, New Zealand, USA and Hong Kong.

The overall impression gained was that, under the current film guidelines, Australia has the most restrictive classification system of this group of countries, particularly in terms of what adults may choose to view.

Furthermore, the current approach to the Australian R classification is highly questionable and this submission proposes a significant change to the guidelines for the R classification.

Issues

Issue 1: Should there be a uniform national approach, including a single set of classification standards, for the classification of entertainment media?

Generally speaking, EFA supports the concept of a single set of classification standards for entertainment media. We believe this would be less confusing than a variety of different systems with different categories and guidelines. There is no obvious trend towards a "global standard" for media classification so it is quite appropriate for Australia to have a unique system, while taking note of developments in other similar countries.

However, in view of the markedly different classification systems for films and computer games (and publications) that have been in place to date, we have concerns that combining of the systems could result in increased restrictions on films and videos, particularly at the R level, unless all Censorship Ministers are prepared to cease banning computer games considered unsuitable for persons under 18 years. If the objective of a "uniform national approach" is likely to result in a lowest common denominator approach to guidelines criteria to accommodate the concerns of the more censorious State and Territory governments regarding computer games, EFA would prefer to see separate guidelines remain in place for films and computer games. That is, rather than further restrict material that adults are free to see and hear in films and videos in order to apply identical guidelines to films and computer games, it would be preferable for R classification guidelines for films and computer games to be different.

With regard to "entertainment media", EFA questions what is meant by this term as used in the Discussion Paper. While some sections of the paper indicate this refers to films, DVDs, computer games and online content, the Section 2.1 Introduction refers to the current requirement that the Classification Board classify content in "digital recorded products" that is similar in a publication, a film and a computer game into three different categories. This tends to suggest the OFLC may also be considering dispensing with a separate classification system and guidelines for Publications.

EFA is opposed to classification of material traditionally found in publications as if it were a film or computer game merely because the publication method is digital rather than paper. We believe that a system distinct from film and related entertainment media should continue to be used for classification of print publications and that system should also be used when classifying text and static images irrespective of the media used for publication of the material.

1.1: Should interactive products, such as DVDs, computer games and online content, be classified in the same way as cinema films and videotapes?

Interactive Products
EFA questions what is meant by "interactive" in this context since online content is not necessarily "interactive". EFA also questions the notion that "interactive products" should be subject to special rules. The matter of interactivity is further addressed later herein.

Film, Video, DVD and Computer Games
EFA supports the use of the same classification categories for film, video, DVD and computer games, provided that the guidelines are sufficiently flexible to enable the differences between the various media to be taken into account so that inappropriate rules are not applied. For example, there may be circumstances where a computer game requires a more liberal interpretation of the guidelines than film because of the nature of the medium.

Online Content
In relation to online content, specifically the Internet, EFA is strongly opposed to the classification of the vast majority of such material. We believe that the classification of online material should be restricted to those instances where the content is globally agreed as illegal material, e.g. genuine images of child sexual abuse, and a classification is necessary to provide evidence for a prosecution.

The proposition that other content on a worldwide communication system be classified is an absurd notion. It is one that fails to take into account the global nature of the medium and the principal purpose of the Australian classification system.

It is said that the Australian "classification" system is intended to enable consumers to make an informed decision as to the suitability of material for themselves and/or their children. However, classification of online content by either the OFLC or the Australian Broadcasting Authority (ABA) does not in any way make it easier for consumers to select material of a particular classification, nor to avoid accessing material on a global network that may be deemed unsuitable for children and/or illegal to publish under Australian laws. In fact, the ABA's refusal to provide, under FOI law, identifying information about content that has been refused classification by the OFLC and ordered taken down from Australian sites shows that the ABA considers it highly likely that such material has simply moved offshore and remains accessible.

The burden that classification would place on Internet publishers is relatively much greater than that placed on publishers in other media, since the barriers to online publication are very low and many Internet publishers provide information online free of charge. Even if the OFLC reduced its classification fee for a "film" (i.e. web page) from approximately $700 to as little as $5 per web page, the classification costs would comprise a markedly greater fraction of the cost of running a web site than the cost of production and distribution of a film or video. In addition, the classification would cease to be valid if the content was updated or amended.

Online content may be dynamic or frequently changing, and consequently a classification may be out of date before it is even issued. In fact, information disclosed by the ABA during an Administrative Appeals Tribunal hearing in July 2001 made clear that the ABA "captures" material from the Internet and then makes the captured content available to the OFLC on an ABA internal system for classification. Obviously the actual content on a web site may have changed before OFLC classifiers even look at the "captured" content.

Online content can consist of material having characteristics of one or more of print publications, radio, television, music, games or film.
No justification has ever been provided for the Commonwealth Government's decision to apply film and video classifications to all types of online content. This decision appears to have been intended to either censor online content more heavily than equivalent offline content, or provide the OFLC with increased taxpayer funding via the ABA, since the OFLC fees for classification of a short film is approximately five times the amount charged for classification of a publication.

An example of the inappropriateness of the film classification system to online content, as currently applied through the 1999 amendments to the Broadcasting Services Act, is that material that is legally able be made available to adults in publications, is classified X online and subject to take down on order of the ABA even when protected with an adult verification system. Unfortunately, there is presently no way to properly analyse such anomalies because both the ABA and the OFLC refuse to make public their classification decisions about online content.

EFA considers the classification of online content is a waste of taxpayer funding as it achieves no beneficial outcomes in the context of a global communications network. The current regime should be abandoned. According to the OFLC database, content that is globally agreed as illegal material, such as genuine images of child sexual abuse, was already being classified by the OFLC for prosecution purposes under publications guidelines prior to the 1999 amendments to the Broadcasting Services Act.

1.2: Should the current system for classifying computer games be retained?

No. The current system is clearly outmoded and was apparently based on fear of new technologies rather than evidence that the system was warranted. Australia is the only country of those studied that has such a highly restrictive system for computer game classification, that is, with an upper limit at the MA15+ level. Other countries have long recognised that it is not only "children" who are consumers of such material and that the classification system needs to accommodate the entire spectrum of users in the community. The current system is patronising in the extreme in treating the entire Australian population as if were of age 15.

The OFLC's recent study Computer Games and Australians Today amply demonstrates that the perceptions of harm put forward by those responsible for the current system are a long way from reality.

In the near future, it may be necessary to consider whether the term "computer game" is still appropriate in today's world. Perhaps the term "digital entertainment media" might be a more appropriate and wider term to describe the full range of material that is currently described as computer games.

Issue 2: Should there be a single, consistent set of classification symbols and categories?

Yes.

2.1: Should there be an age based approach to naming classification categories, similar to the G8+ category for computer games?

No. EFA considers an age based approach to naming classification categories is inappropriate. The current film category system related to maturity level is a better approach since children mature at different ages and parents and guardians are in the best position to judge the maturity level of their children.

Moreover, an age-based naming system in conjunction with prescriptive guidelines used in Australia seems highly likely to result in increased difficulty in application of the system by classifiers and in understanding of the system by consumers. Attempts by Community Assessment Panel members to align the minimum age they thought acceptable for viewing films with the suggested minimum ages in the classification guidelines has resulted in them holding inconsistent positions, e.g. "this should be an M classification but I think it's suitable for 10-12 year olds". (Source: OFLC Community Assessment Panels Report, 2 June 2000, page ii). Incorporation of an age in the category names will lead to increased debate and controversy over particular classification decisions concerning whether age or the criteria set out in guidelines should take precedence in determining a classification.

We note that some countries do use age-based category names, in some cases as guidelines, in other cases as restrictions. However, there is little consistency of approach in the age limits chosen, demonstrating that such a system is very arbitrary. (See Appendix 1 for category names used in other countries).

2.2: Should there be a special children’s category ‘C’ with specific classification criteria?

No. According to the OFLC Annual Report 1999/00:

"Consumer advice is generally not provided for material classified G. As this category is suitable for viewing by all ages, it can be expected not to contain anything which might require consumer advice".
If in fact some material classified G is not considered "suitable for viewing by all ages" by the Classification Board, this issue would be best addressed by provision of consumer advice regarding suitability for young children, rather than introduction of yet another category with complex, subjective guidelines. (See also comments later herein regarding consumer advice).

2.3: Should there be an ‘R’ classification for computer games?

Yes. Material that would warrant this classification, or its equivalent, is readily available in all of the other countries studied and there is absolutely no valid reason why Australians should be treated differently. An R classification for computer games should be introduced that is no more restrictive than the existing guidelines for R classified films and videos.

We note, however, that there is a widely accepted system of classification of computer games, the ESRB (Entertainment Software Ratings Board) system used in the US and Canada. Unfortunately the classification categories bear little resemblance to those used for film classification in these countries or indeed in Australia (see Appendix 2). However, since most computer games would already be rated using this system, it seems that the system could at least provide a ready method for assigning equivalent classifications in Australia if a unique local system must be continued for political or other reasons.

Issue 3: The draft combined guidelines contain new classification concepts, definitions and explanations relevant to convergent media. Are these new concepts, definitions and explanations going to improve the current relevance of the guidelines and provide assistance in understanding and applying the classification system?

Understanding and applying the classification system

Complexity and Prescriptiveness

The guidelines are becoming increasingly prescriptive, complex and driven by fine distinctions in the definitions and meanings of words. EFA considers this is an alarming trend that is moving away from the fundamental purpose of the classification system.

At its most basic level, the classification system has to answer the question, "For what maturity level is this film suitable?". Most mature people in the community could readily answer this question in respect of any given work without reference to either guidelines or dictionary or glossary definitions. Although answers to the question would not always be consistent, the use of highly prescriptive guidelines does not result in consistent answers in any case. Even trained classifiers are unable to apply the detailed guidelines in a consistent manner as illustrated by the numerous non-unanimous decisions of the Classification Board and the inconsistencies between decisions of the Board and the Review Board. For example, in the case of the film Romance not only was the Board divided on the classification, but the Review Board disagreed with the majority of the Board.

EFA is of the view that the guidelines need to be made simpler rather than more complex. We note that the guidelines used by other countries are far simpler than the existing Australian system.

Moreover, the guidelines should be reviewed to remove, as far as is possible, subjective judgements on the part of the Classification Boards. For example, whether an image displays frontal nudity is capable of objective assessment; whether it is exploitative or degrading are controversial value judgements. In EFA's submission, expense and controversy over classification disputes are exacerbated by lengthy guidelines. Complicated definitions of words designed to appeal to a subjective value judgement invite the Classification Board to escalate classifications to a higher level on a technicality.

Complexity of classifications may develop, over time, to discourage controversial material if no-one can be sure how the work will be classified. Censorship by confusion is not a worthy outcome of a classification system. With the advent of Internet self-publishing, more than ever it is in the public's interest to be certain as to what may be published and distributed across State boundaries and diverse media.

Format of Official Guidelines

Difficulties in understanding and applying the system are exacerbated by use of definitions in an appended Glossary that bear minimal if any resemblance to dictionary definitions or common Australian usage. We note that the OFLC determined that the official Guidelines were not suitable for training Community Assessment Panel members to understand and apply the guidelines. The June 2000 Report states on page 3 that:

"One difference between the official Guidelines and the material used for training was that examples of films receiving various classifications were also included in the manual. A further difference was that definitions used in the Classification system were integrated into the text of the training manual. Thus when a word such as 'exploitative’ appeared in the Classification Guidelines, it was immediately explained or defined within the text rather than requiring the reader to refer to the appended glossary of terms. Care was taken to give detailed verbal explanations of concepts that had caused some difficulty to participants in the first year’s operation of the Community Assessment Panels."

EFA considers the official Guidelines should be published in a format that facilitates, to the greatest extent possible, ease of understanding and application. It appears the format used in the Panel training manual may be an improvement over the format presently used for the official Guidelines.

Relevance of the Guidelines

While EFA considers proposed new guidelines should be issued for public comment, as is currently the case, we are doubtful that this type of process is sufficiently helpful in determining whether the Guidelines are relevant to and reflective of contemporary community standards.

We note that the Ontario Film Classification Board in Canada carries out twice-monthly screenings for members of the public in order to gauge community opinion on appropriate classifications in comparison with the official decisions. This concept is very different from the OFLC's experiments with community assessment panels that are required and trained to follow the official Guidelines rather than make assessments on the basis of common sense.

EFA considers the OFLC should convene Community Assessment Panels more frequently and ask panel members to classify material without firstly training them to understand and interpret the guidelines in the same way as Board members. This would provide better guidance on whether the guidelines are clear and reflective of community standards.

In addition, Panels should be asked to classify material that is likely to be classified R or RC. Of the 6 panels convened to date and 18 films screened, only one film classified R was included. These panels thus provided little feedback to the Board on whether or not their decisions about what is suitable/unsuitable for adults to see is reflective of contemporary community standards. We recognise that under classification enforcement laws in some jurisdictions it is illegal to publicly exhibit films that have not been classified or have been classified RC. However some jurisdictions, such as NSW, do not proscribe privately exhibiting such material to adults.

Issue 4: Are the standards in the draft combined guidelines clear, appropriate and adequate?

In addition to comments elsewhere herein concerning complexity and lack of clarity in general, EFA considers the following matters to be problematical.

Imitability
This is a new "contributing factor" to the classification decision and no explanation has been given as to why this factor must now be taken into account, especially at the higher categories, M and MA. Furthermore, no examples are given of the type of activity that the drafters had in mind. The manner in which this factor has been included in all categories up to MA is likely to be cause confusion and may call for psychological knowledge that is beyond the experience of most classifiers. EFA recommends this factor be withdrawn in the absence of evidence warranting its inclusion and examples of the kind of activity that it is intended to cover.

Interactivity
The meaning of "interactivity" is not adequately explained in the proposed guidelines. For example, does the mere fact that a CD ROM, a floppy disk, or an Internet web page provides a range of files or other web pages that can be selected for viewing comprise "interactivity"? If it does, then EFA opposes the proposition that interactivity may be a reason to apply a more or less restrictive classification. The selection of a file on a disk or a web page to view is no different from reading the contents listing of a magazine or book and selecting an article on a particular page to read. Futhermore, it is the viewable material that ought to considered in classification decisions; whether such material is viewable as a result of interactivity or not appears to be irrelevant.

Fetish
This term is defined in the glossary to include "an action ... which gives sexual gratification". Under this definition, mere sexual intercourse is regarded as a fetish. Surely this is not intended? The glossary definition should be amended to clearly explain what is meant by "fetish" in the abnormal language used in Australian classification criteria.

Furthermore, developers of the classification systems used in other countries do not seem to have the obsession with fetishes that exists among those in Australia. In fact, the word does not appear in any of the systems examined. The term should be excised from the guidelines as a reason to ban material and at most used in consumer advice (after amendment of the glossary definition to exclude actions such as sexual intercourse that reasonable adults would not regard as fetishes). Adults can then make up their own minds about whether they wish to view an X-rated video that portrays activities that classifiers consider to be "fetishes".

Strength of Elements (General Rule No. 4)
The draft guidelines state:

As a general rule the strength of elements, for classification purposes, is indicated in the following relativities:
  • Depiction is stronger than description;
  • Real is stronger than simulation;
  • Simulation is stronger than implication;
  • Implication is stronger than suggestion;
  • Suggestion is stronger than reference.
EFA considers the above "general rule" defies comprehension. It should be deleted. However, if it is considered essential to include these fine grained distinctions, the section should be re-written in a manner that incorporates the glossary definitions in the text of the section rather than requiring readers to refer to seven definitions in the glossary prior to being able to gain the faintest clue of the meaning of the section. In addition, some dictionaries in common use indicate that words used in the glossary to explain, for example, the meaning of "reference" results in this word having the same meaning as "suggestion".

The Guidelines generally
The guidelines are far too detailed at the R classification level. Given that this category is restricted to adults the guidelines should be minimal, especially given the problem that the guidelines are not collectively exhaustive as described later herein. The R classification should be reserved for material which is not suitable for minors and which does not otherwise belong in the RC or X categories.

Category: Refused Classification
The revised guidelines include a new reason for banning films and computer games, that is, if they:

(d) depict in a way that is likely to offend a reasonable adult a person who is or who looks like a person under 18 in sex, nudity, violence, drug use or other activity or theme;

This criteria is far too subjective and invites controversies similar to that concerning the film 'Romance'. We are unaware of any evidence that community standards have changed since the last revision of the guidelines in such a way as to justify addition of this vague and broad restriction.

The whole idea of using "looks like" is totally inappropriate in this context. No criminal code in Australia makes the age of consent dependent on apparent age: apparent age is simply too subjective to be a reasonable criterion for deciding on a criminal offence. However, the OFLC guidelines effectively constitute criminal legislation. In case of doubt, production of evidence of age should be sufficient to ensure publishers are not charged with criminal offences.

The National Classification Code places restrictions on depictions of persons who are or look like they are under 16 years of age which is in accordance with the most common age of consent. The Guidelines should not conflict with the criteria specified in the Code by increasing the age to 18 years. Furthermore the Code refers to depictions of persons under 16, whether or not engaged in sexual activity, and the existing RC guidelines refer to "any other exploitative or offensive depictions involving a person who is or who looks like a child under 16". There is no justification for increasing the age specification to 18 years and it is not at all clear what types of depictions are intended to be banned by the proposed criteria that could not already be banned under existing criteria. EFA considers any increased restrictions resulting from this new criteria would be an unjustifiable restrictions on adults' freedom to see and hear what they want.

Converging media and the application of film guidelines to online content will result in this restriction being applied to a much broader range of material than entertainment media like cinema films, such as online information of an educational, medical, scientific etc nature, artworks, news reporting and information concerning social and public policy issues. EFA has no confidence that the Classification Boards will remember to, or adequately, consider the provisions of Section 11 of the Act in this regard.

EFA recommends proposed new criteria (d) not be implemented.

Category: X Classification
The reference to "looks like" a person under 18 years should be deleted, for the same reasons set out in relation to the RC category above. In addition, EFA considers the entire X classification should be amended to remove the increased restrictions on this category implemented last year. There is no evidence that these changes were desired by reasonable adults.

Category: R Classification
As stated elsewhere in EFA's submission, we believe the R Classification guidelines should undergo a major overhaul. However, in the event that this does not occur, we make the following comments on the proposed changes to the guidelines for the R classification. (Comments on only proposed changes should not be interpreted as necessarily signifying EFA support for any aspects of the existing guidelines).

A number of additional sentences have been added referring to "descriptions" as distinct from depictions. However, a sentence from the existing guidelines in the section titled "Sex" which stated "Verbal references may be more detailed than depictions" has been deleted and not replaced by any information regarding "descriptions". EFA recommends a similar statement be reinserted.

The concept of "sexualised violence" should be deleted. This is an aspect that results in banning of material merely because a film may have some scenes involving sex and others involving violence. Decisions of the Boards indicate that the matter of whether sex and violence is "connected in the story" is a subjective judgement that results in unjustifiable restrictions on adults' freedom to read see and hear what they want.

References to "generally offensive" should be deleted. If something of this nature must remain, it should be replaced with "causes outrage or extreme disgust to most adults" which better describes the existing grounds for material being "unable to be accommodated" in the R classification without need to refer to the Glossary.

References to "interactive segments" should be deleted.

The section restricting depictions of nudity should be deleted. There should be no restrictions on nudity in the R classification.

We observe that one reference to "static images" is proposed:

"Gratuitous, exploitative or offensive depictions of cruelty or real violence will not be permitted. [Descriptions and static images may be permitted but should not be generally offensive.]"

What is the difference between a "depiction" and a "static image"? According to the glossary, a depiction would include a static image, so the above two sentences are contradictory.

Given the above and proposed General Rule No. 3, EFA questions why numerous references to descriptions have been added into the guidelines, while static images have only been referred to once. Since the film guidelines are now being applied to static images online, as well as on CD Roms and floppy disks, EFA recommends the term "depictions" be used only in instances where the same rules apply to both moving images and static images, and in all other cases the terms "moving images" and "static images" be used. In addition, EFA recommends that throughout the guidelines it should be clearly stated that both descriptions and static images may contain more detail, etc, than moving images, instead of only mentioning descriptions in this regard.

Issue 5: Are there other issues related to the effective operation of the guidelines which should be considered in the review?

R Classification: National Classification Code & Guidelines

EFA has major concerns about the use of highly prescriptive guidelines in that the classification categories may well be mutually exclusive but are not collectively exhaustive. In other words, there may be items that do not fit any of the legal classification categories, but nor are they offensive or abhorrent to the extent that they should be Refused Classification under the RC criteria.

In the 5 years 1995/96 to 1999/00, a total of 7 commercial cinema features and 248 videotapes were banned by the Office of Film and Literature Classification (OFLC). (Source: OFLC Annual Reports). About 20-30% of these were banned for reasons explicitly defined in the RC criteria (offensive etc.), as far as can be determined from the published information. The rest were banned because they were unable to be accommodated within the guidelines for the legal classification categories.

The following are excerpts from the National Classification Code (the Schedule to the Classification Act:

Films are to be classified in accordance with the following Table:

RC Classification
Films that:
(a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or
(b) depict in a way that is likely to cause offence to a reasonable adult a minor who is, or who appears to be, under 16 (whether or not engaged in sexual activity); or
(c) promote, incite or instruct in matters of crime or violence.

X Classification
Films (except RC films) that:
(a) contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultive language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers, in a way that is likely to cause offence to a reasonable adult; and (b) are unsuitable for a minor to see.

R (18+) Classification
Films (except RC films and X films) that are unsuitable for a minor to see.

The Code clearly states that the R classification is the "default" for any adult material that does not fit the definitions of the RC and X classifications.

The OFLC Board report on the film Romance in January 2000 concluded with the statement:

A majority of the Board decided that the file is appropriately classified 'RC' as it contains explicit depictions of actual sexual activity, which exceed the 'R' classification but may be accommodated in the 'X' classification, and a depiction of implied sexual violence, which exceeds the 'X' classification, thereby warranting an 'RC' classification.

The majority argued that the National Classification Code and the 'R' classification guidelines do not permit the explicit depiction of actual sexual activity in 'R' classified films.

But the National Classification Code is silent on whether explicit sex can be included in the R category. The report continues:

The majority decided that, while the explicit depictions of sexual activity could be accommodated in the 'X' classification, the depiction of implied sexual violence could not be accommodated within the 'X' classification.

Accordingly, the Board decided by majority that the film required an 'RC' classification.

EFA submits that this conclusion is illogical. The combination of the Code and the prescriptive guidelines results in a situation of mutual exclusivity, i.e. the banning of a film not because it meets the criteria for RC classification but because it cannot "be accommodated" within the prescriptive guidelines for the X or R classifications.

In summary, EFA believes that the Guidelines have become so prescriptive that they are in conflict with the National Classification Code. Section 12(1) of the Classification Act states:

The Minister may, with the agreement of each participating Minister, determine guidelines to assist the Board in applying the criteria in the Code.

It is clear that the Guidelines are intended to provide an aid to classification in accordance with the Code, that is, application of the Guidelines should not result in grounds for banning material that go beyond the criteria in the Code.

We note with approval that there is a minor change proposed to the Australian R classification which appears to aimed at avoiding controversies such as that which accompanied the Romance decision in Australia in the future. However, we are extremely doubtful that the addition of the statement that "sexually explicit depictions may be permitted in brief depictions that are...strongly supported by an artistic or documentary or educational context" will preclude similar infringements of adults' freedom to read, see and hear what they want. The existing Classification Act has long required the Board to take such matters into account and we observe that the reports of individual Board members on their classification of Romance (received by EFA under FOI) show that a number of Board members did so in classifying the film R. However, it is notable for example that one Board member stated: "I take the stand that if the Minister's [sic] wanted a special art house section that enables sexually explicit films of sufficient artistic merit to be made available on the public exhibition circuit I think a category would have been made for it". We consider that a minor change to the guidelines for R, which simply reiterates provisions of the Act, is unlikely to affect such views.

EFA recommends that the R classification undergo a complete overhaul to remove prescriptiveness and ensure that "Films (except RC films and X films) that are unsuitable for a minor to see" are in fact able to be accommodated in the R classification.

Consumer Advice
The increasing complexity of the Guidelines, together with new concepts and fine distinctions in the definitions and meanings of words, makes it more difficult for consumers to know why a film received a particular classification. Consumer advice is too brief to adequately assist consumers in deciding whether a particular film is suitable for themselves or their children to see. We recognise, however, the difficulties of incorporating detailed consumer advice on packaging.

EFA therefore recommends that all Classification Board and Classification Review Board Reports be made publicly available on the OFLC's web site promptly following a classification decision being made. This would assist consumers wishing to have more information on the reasons for a particular classification and thereby assist them in determining whether the material is likely to be suitable for particular persons. We note that the BBFC has been making classification decision reports available on their web site for a number of years.

Guidelines' Audience and Effective Operation
The guidelines can not be expected to operate effectively unless those obligated to use same are able to understand them.

We note that under "Purpose" at the commencement of the revised draft guidelines it is stated that "Board members are...the primary audience for the Guidelines. The Guidelines are also of interest to, and used by, members of the film and computer games industries and members of the general public".

EFA submits that, in formulating and wording guidelines, it is necessary for the OFLC to pay more attention to the fact that an the increasing range of persons are required to use the guidelines. In our view, the "primary" audience for the guidelines comprises significantly more people than Board members. These include, for example:

  • ordinary people who publish material on the Internet and whom various State and Territory Governments have made, or plan to make, criminally liable for failure to correctly assess the classification that the Board would give to particular online content such as a web page or a message on a web-based chat board
  • classification officers within the online regulation section of the Australian Broadcasting Authority
  • classification officers within the computer games industry whom we under the OFLC permits to classify computer games (without the Classification Board viewing the game)

Comments on Overseas Practice

It is illustrative to compare classification guidelines used in other similar countries with the proposed Australian guidelines. While it is sometimes stated that Australian community attitudes are different from other countries, there is no evidence to support this contention. We live in an increasingly globalised environment where, owing to the development of electronic commerce, film, video, computer games and of course Internet content itself are far more readily obtained from sources outside this country than a few years ago. While cultural differences abound, there is merit to be gained in comparative analysis of practice in countries that we readily recognise as having similar cultures and values to Australia's.

While an exhaustive comparison of classification systems would be impractical here, a brief look at classification practice at the upper levels of the system is illustrative, i.e. at the level equivalent to Australia's R, X and RC classifications. It is at this level that the boundary between classification and censorship is most likely to be crossed. Furthermore, while decisions about what is suitable for say a 15 year-old are somewhat arbitrary, the adult categories are claimed to adhere to the proposition that "adults should be able to read, hear and see what they want", subject to restrictions on absolutely abhorrent material, however defined.

Britain's "18" Classification
(extract from BBFC Classification Guidelines)

    No-one younger than 18 may see an ‘18’ film in a cinema or rent or buy an ‘18’ rated video.

    The BBFC respects the right of adults to chose their own entertainment, within the law. It will therefore expect to intervene only rarely in relation to ‘18’ rated cinema films. In the case of videos, which are more accessible to younger viewers, intervention may be more frequent.

    There are no constraints at this level on theme, language, nudity or horror.

    The Board may, however, cut or reject the following content
    - any detailed portrayal of violent or dangerous acts which is likely to promote the activity. This includes also instructive detail of illegal drug use
    - the more explicit images of sexual activity - unless they can be exceptionally justified by context.

The brevity of these guidelines is noteworthy. The BBFC guidelines use 130 words to basically describe a hands-off policy, apart from the exceptions stated. The proposed Australian R guidelines, on the other hand, use 430 words to proscribe what adults are not permitted to see, notwithstanding the claim that Australian adults should be able to read, hear and see what they want.

Adult "sex videos" in the UK are classified "R18", with sales restricted to adults through licensed adult shops, and mail order sales are illegal. This is exactly the opposite of the situation in Australia, although cohesive policy here is confounded by the peculiarities of Commonwealth and State powers.

New Zealand's "R18" classification

The New Zealand guidelines do not appear to be available online. However, it is noted that New Zealand does not have distinct R and X classifications. Instead all material suitable only for adults is classified R18. Presumably the marketplace itself dictates that X-rated material is of no interest for theatrical release, a proposition that common sense would also support.

The following extract from the New Zealand OFLC 1999-2000 Annual Report contains some worthwhile observations about the effect of this policy.

    There sometimes tends to be a perception that the R18 classification is reserved for explicit sex. This has been argued before the Board by film distributors seeking a lower classification, and the same argument sometimes appears in the press. This is indeed the case in the United States where the NC-17 rating is so closely associated with explicit sex that distributors will make cuts to obtain the lower R rating because exhibitors will not show NC-17 films. The association of NC-17 with explicit sex also puts pressure on classifiers to resist applying the NC-17 rating with a potential resulting expansion of the R rating to include content that might be included in NC-17 were NC-17 not so "tainted". This is a situation that should be strongly avoided in New Zealand, and so far has been.

    Of the 1,628 publications classified by the Classification Office this year, 548 were classified R18 and 482 of those R18s were moving images consisting of films, videos, computer games and DVDs. Of those 482 moving images classified R18, 409 had the descriptive note attached to them "contains explicit sex scenes". These were primarily video recordings. However, 73 or 15% of all moving images classified R18, had a descriptive note attached to them other than "contains explicit sex scenes". These notes emphasised content such as violence, offensive language, non-explicit sexual references, nudity, drug use and antisocial behaviour. Indeed, if the statistics are further analysed, only one of the 16 cinematic films classified R18 had the descriptive note "contains explicit sex scenes". Ninety-four percent of cinematic films did not have explicit sex scenes in them and were nonetheless classified R18 by the Classification Office and the Board of Review. The R18 classification is applied to any publication, the availability of which would not injure the public good provided it were restricted to adults. The content of such publications runs the gamut from explicit sexual depictions through to violence, sexual violence and drug use.

Ontario's R (18) Classification

Film classification in Canada is carried out at a provincial level, while videos are classified on a national basis. The following are the Ontario Film Review Board Guidelines for the R film classification, which is broadly equivalent to Australia's R classification.

    Age Suitability - Film restricted to persons 18 years of age and over.

    Language - No restriction.

    Violence (see Note 3) - Visually explicit portrayal(s) of violence which may be characterized by any or all of extreme brutality and extreme tissue damage. May include torture, horror, sexual violence.

    Nudity - Full frontal nudity in a sexual situation.

    Sexual Activity - Simulated sexual activity, limited instances of brief, non-gratuitous, non-violent explicit sexual activity.

    Horror - Horrific themes, incidents and images with a more prolonged or graphic focus and greater frequency.

    Psychological Impact (see Note 2) - The treatment and situations may cause extreme adverse psychological impact. Such scenes and situations could involve intense and compelling terror, acts of degradation, threats of violence, and continuous acts of non-extreme violence. Such situations could be accompanies by coarse, abusive, and degrading dialogue.

    Note 1: From time to time, guidelines may be set aside at the Panel's discretion (where social and documentary significance warrants).

    Note 2: Psychological impact may be a state of mind, mood or feeling and/or other effects on the viewer, resulting from the treatment of scenes and situations within the film. Treatment may include intensity, degree, pace, atmosphere, tone, visual effects, and dialogue.

    Note 3: Portrayals of violence may include armed combat, natural disasters, accidents, hand-to-hand combat, weapons violence, and violent sports. The degree, frequency, and intensity of the acts of violence will be factors in the classification decision.

The brevity of the guidelines compared with Australia's is again worthy of note. Broadly speaking, these guidelines appear much more liberal than Australia's, and most interestingly, give the classification panels some discretion to go outside the guidelines where warranted, i.e. they are treated as genuine guidelines rather than dogmatic rules.

Summary

The examples shown above illustrate a generally more liberal attitude than in the proposed revised guidelines for the R classification in Australia. Although we will not go into detail here, an examination of the lower classifications also shows a more liberal policy, although it is more difficult to make comparisons in the non-restricted categories.

It is not clear why the Australian guidelines should be more restrictive than other comparable societies. Certainly there is no obvious demand for greater restrictions here, and one is obliged to question the process by which the proposed new guidelines were established.

It is noted that controversies such as that which accompanied the Romance decision in Australia did not occur in these other countries. While there a minor change proposed to the Australian R classification which appears to aimed at avoiding such a controversy in the future, as detailed above, we do not believe this to be sufficient.

EFA believes that if the proposed revised guidelines are implemented, the outcome will be continued demonstration that the Australian "classification" system is a censorship system that has little regard to the right of adults to read, see and hear what they want, notwithstanding claims to the contrary by various politicians and bureaucrats. Furthermore, increasing the complexity of the current system will diverge the Australian system even further from international norms and continue to result in material that is legally available to adults in comparable societies being banned in Australia.

Recommendations

EFA recommends that:

  • the guidelines be made less prescriptive to enable the Classification Board members to more readily reflect contemporary community standards, from time to time, in classification decisions rather than being restricted by dogmatic rules prescribed at five year intervals
  • the guidelines be made simpler rather than more complex
  • the guidelines be reviewed to remove, as far as is possible, subjective judgements on the part of the Classification Boards
  • the R classification undergo a complete overhaul to remove prescriptiveness and ensure that "Films (except RC films and X films) that are unsuitable for a minor to see" are in fact able to be accommodated in the R classification
  • the current system for classifying computer games not be retained
  • an R classification for computer games be introduced that is no more restrictive than the existing guidelines for R classified films and videos
  • improved consumer advice be made publicly available via publication of all Classification Board and Classification Review Board Reports on the OFLC's web site promptly following a classification decision being made
  • the "imitability" factor be withdrawn in the absence of evidence warranting its inclusion and examples of the kind of activity that it is intended to cover
  • the meaning of term "interactivity" be clearly explained in the guidelines
  • the term "fetish" be excised from the guidelines as a reason to ban material and at most be used in consumer advice (after amending the glossary definition to clarify the meaning of the term)
  • the general rule regarding "strength of elements" be deleted
  • the official Guidelines be published in a format that facilitates, to the greatest extent possible, ease of understanding and application rather than in their present format
  • the OFLC convene Community Assessment Panels more frequently and ask panel members to classify material (including that likely to be rated R or RC) without firstly training them to understand and interpret the guidelines in the same way as Board members, in order to provide better guidance on whether the guidelines are clear and reflective of contemporary community standards

References

Review of the Classification Guidelines for Films and Computer Games - discussion paper, OFLC, October 2001
http://www.oflc.gov.au/PDFs/rev_class.PDF

Office of Film and Literature Classification, Australia
www.oflc.gov.au

The British Board of Film Classification
www.bbfc.co.uk

New Zealand Office of Film and Literature Classification
www.censorship.govt.nz

Highlights from NZ OFLC 1999-2000 Annual Report
www.censorship.govt.nz/highligh.htm)

New Zealand Films, Videos, and Publications Classification Act 1993
rangi.knowledge-basket.co.nz/gpacts/public/text/1993/an/094.html

Motion Picture Association of America
www.mpaa.org/movieratings

Film Classifications in the Canadian Provinces
www.media-awareness.ca/eng/indus/filmvid/film1.htm

Canada Video Classifications
www.ofrb.gov.on.ca/english/page13.htm

Ontario Film Review Board
www.ofrb.gov.on.ca/default.htm

British Columbia Film Classification
www.ag.gov.bc.ca/fc
www.pssg.gov.bc.ca/film_class/index.htm

Canada - Alberta province
www.cd.gov.ab.ca/enjoying_alberta/film_classification/index.asp

Canada - Saskatchewan province
www.saskjustice.gov.sk.ca/branches/Film_&_Video/film-video.htm

Canada - Quebec province
www.mcc.gouv.qc.ca/orgasoc/orgaso12.htm

Canada - Maritime provinces
www.gov.ns.ca/aga/filmclassification.asp

Hong Kong Television and Entertainment Licensing Authority www.info.gov.hk/tela/org_e.html

Entertainment Software Ratings Board
www.esrb.org

Australian Classification Board Decision - Romance Board Report 99/3292 - 14 January 2000
    http://www.libertus.net/censor/odocs/romance_oflc_dec.html

Appendix 1

Classification Categories used in other countries

The classification categories used in the different countries studied are:

Great Britain:
U (Universal), PG, 12 (restricted to 12+), 15 (restricted to 15+), 18 (restricted to 18+), R18 (sex videos, for sale in licensed sex shops only).

USA (voluntary system):
G, PG, PG-13, R (adult accompanied under 17), NC-17 (restricted to 17+).

Canada:
(In Canada, film classifications are province-based, while video ratings are national. Some provinces use the video rating system for films, others use a different system, e.g. Ontario)

Video Classification:
G, PG, 14A (adult accompanied under 14), 18A (adult accompanied under 18), R (restricted to 18+).
Ontario province film classification:
F (family), PG, AA (adult accompanied under 14), R (restricted to 18+).

New Zealand:
G, PG, M (advisory 16+), R16 (restricted to 16+), R18 (restricted to 18+).

Hong Kong:
Cat I (unrestricted), Cat IIA (not suitable for children), Cat IIB (not suitable for young persons and children), Cat III (restricted 18+).

Appendix 2

The ESRB (Entertainment Software Ratings Board) rating system for computer games

(Source: www.esrb.org)

Early Childhood
Titles rated "Early Childhood (EC)" have content that may be suitable for children ages three and older and do not contain any material that parents would find inappropriate.

Kids to Adults
Titles rated "Kids to Adult (K-A)" have content that may be suitable for persons ages six and older. These titles will appeal to people of many ages and tastes. They may contain minimal violence, some comic mischief (for example, slapstick comedy), or some crude language.

Everyone
As of January 1, 1998, the new "Everyone" designation will replace the "Kids to Adults" rating. Titles rated "Everyone (E)" have content that may be suitable for persons ages six and older. These titles will appeal to people of many ages and tastes. They may contain minimal violence, some comic mischief (for example, slapstick comedy), or some crude language.

Teen
Titles rated "Teen (T)" have content that may be suitable for persons ages 13 and older. Titles in this category may contain violent content, mild or strong language, and/or suggestive themes.

Mature
Titles rated "Mature (M)" have content that may be suitable for persons ages 17 and older. These products may include more intense violence or language than products in the Teen category. In addition, these titles may also include mature sexual themes.

Adults Only
Titles rated "Adults Only (AO)" have content suitable only for adults. These products may include graphic depictions of sex and/or violence. Adults Only products are not intended to be sold or rented to persons under the age of 18.

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