Answers to Senate Questions on Notice
re classification of Internet content
and SA Net Censorship Bill
Below are answers to Questions on Notice by the Minister representing the Attorney-General in the Senate, which were tabled in the Senate on 25 June 2001, some 80 days after the questions were asked by Senator Brian Greig (Democrats), although Senate Standing Orders and practice require Ministers to answer Questions on Notice within 30 days.
Note: the document tabled in the Senate is formatted as a list of questions, followed by a list of answers. For ease of reference, the format below lists each question followed by the answer in italicised text.
Office of Film and Literature Classification
(Question No. 3564)
Senator Greig asked the Minister representing the Attorney-General, upon notice, on 5 April 2001.
[list of questions below]
Senator Ellison -- The Attorney-General has provided the following answer to the honourable senator's question:
[list of answers below]
(1) Was the Director of the Office of Film and Literature Classification (OFLC) consulted by the South Australian Government on the provisions of the On-line Services section (Part 7A) of the South Australian Classification (Publications, Films and Computer Games) (Miscellaneous) Amendment Bill 2000 prior to the bills introduction into the South Australian Parliament in November 2000.
(1) Commonwealth, State and Territory officials consulted extensively on model provisions for the regulation of online content under State and Territory legislation in the context of the national legislative classification scheme. The Director was party to these discussions.
- If the OFLC Director had been consulted on the SA Bill prior to its introduction into SA Parliament, the answer to the question would have been simply "yes".
- Model national provisions were issued for public comment in 1999 and were widely criticised. The SA Bill is not the same, although it does contain many of the same flaws relative to criminal justice.
- If "officials" agreed on revised model provisions, these have not been made publicly available, so it is unknown whether the SA Bill is in accord with any "model" provisions on which the OFLC Director was consulted. (Also, during the period Feb 1998-Apr 2000, the position of OFLC Director was held by an acting incumbent and/or the OFLC Director was absent due to very serious illness.)
- At a meeting on 27 July 2000 Censorship Ministers discussed the use of film classification criteria to assess websites and concerns were raised that the film guidelines were less than adequate and perhaps unsuitable for application to Internet content. The Ministers therefore agreed to review the guidelines as soon as a current review of computer games classification was completed. (Qld Censorship Minister's media release 27 July 2000). Neither the review of the computer games or the film guidelines has been completed, but in the meantime the SA A-G proposes to enact criminal law that relies on use of film guidelines that Censorship Ministers have apparently agreed are less than adequate for assessing web sites.
(2) If the Director was not consulted prior to the bills introduction, was the Director subsequently consulted; if so, on what date.
(2) A copy of the South Australian Classification (Publications, Films and Computer Games) (Miscellaneous) Amendment Bill 2000 was forwarded to the Director of the Office of Film and Literature Classification (OFLC) on 9 November 2000.
- The SA Bill was introduced into SA Parliament the day before a copy was forwarded to the OFLC Director.
(3) If the OFLC was consulted either before or after the bills introduction, did the OFLC raise any matters that would need to be addressed and resolved regarding the OFLCs ability to provide online publishers with a classification certificate for Internet content; if so, what matters did the OFLC raise.
(3) The bill is substantially in line with similar legislation in other jurisdictions and with the model provisions for State and Territory legislation. Further advice was not required.
- Legislation in other jurisdictions (WA, NT, Vic) was drafted in 1994-95 at a time when few politicians or members of the community had sufficient knowledge of the Internet to enable them to identify and/or comprehend flaws in proposed legislation. The South Australian Parliament has the opportunity to enact legislation that demonstrates that it understands the new economy and that does not contain the flaws in years-old legislation in other jurisdictions.
- While it appears that few Internet content providers have been prosecuted under laws in other jurisdictions, this may be because police in other jurisdictions spend their time dealing with serious crime rather than looking for books by internationally acclaimed photographers to censor as SA police do.
- Furthermore, the SA Bill is not substantially in line with legislation in other jurisdictions.
- South Australia is the first Australian jurisdiction to make it a criminal offence to make available to adults information unsuitable for minors on the Internet. EFA believes South Australia will be the first Western democracy to do so. Such a law does not exist in the United Kingdom, Canada, New Zealand, the USA nor, to the best of EFA's extensive knowledge, in any other Western democracy.
- Unlike the Commonwealth Broadcasting Services Amendment (Online Services) Act, the SA Bill makes it a crime to make available material that has not been classified (but "would be" classified in a particular manner) and whether or not access to R material is subject to a restricted access system.
(4) Has the OFLC been providing a classification service for existing Internet content to online publishers to date.
(5) Has the OFLC been providing a classification service for proposed Internet content to online publishers to date.
(4 & 5) The Classification Board classifies the entire content of publications, films and computer games on application made under the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act). The OFLC does not provide online publishers with a classification service that is specific to Internet content. Internet content in the form of a recording may be considered to be either a 'film' or a 'computer game' for the purpose of classification under the Classification Act. Accordingly, existing or proposed Internet content may be submitted for classification as a 'film' or a 'computer game' under section 14 or 17 of the Classification Act. Internet content that is submitted in a printed form, as a print-out, falls within the definition of 'publication' under the Classification Act, and is classified accordingly. Since commencement of the Classification Act, the OFLC has been able to provide classification information to prospective online publishers and service providers on request and to classify proposed and existing Internet content on receipt of a valid application.
- Obtaining a classification as a publication would be of no assistance to SA Internet publishers since when the material is placed on the Internet it becomes an unclassified film, i.e. a computer generated image. The SA Bill does not recognise that publications may be placed on the Internet, although legislation in the jurisdictions of WA, NT and VIC does.
- Much of the material that is classified Category 1 Restricted (restricted to adults) under the publications guidelines would be classified X under the film guidelines, and some would be classified R. Obtaining a publications classification would therefore not provide adequate information relative to offences under proposed SA law. (However, under for example Victorian legislation, a publication classified Category 1 or 2 Restricted is legal to make available on the Internet, provided it is not published or transmitted, or made available for transmission, to minors. Also, a number of defences are available in event of unintended receipt by a minor).
- The reference to "may be considered to be either a 'film' or a 'computer game'" apparently refers to the OFLC Board's power under Section 15 - Discretion of Board of the Comm. Act, to decline to deal with an application for the classification as a film, of a recording that contains a computer generated image. Depending on inter alia "the degree of interactivity involved" and the "nature of the visual images produced" the OFLC may require the material to be resubmitted as a computer game.
The highest classification for a computer game is MA15+. This means that if the OFLC Board decides a web site is sufficiently "interactive" to require it to be dealt with as a computer game, a web site containing content that would otherwise be rated R would be classified RC.
- While the OFLC may have "been able to provide classification information to prospective online publishers" since 1996, it is doubtful they have actually been classifying content for online publishers. In March 2001 the OFLC was advising callers that it did not classify Internet content for prospective online publishers. The OFLC representative said that prospective online publishers should contact the ABA. An ABA representative said that prospective online publishers should contact the OFLC.
(6) If the OFLC presently provides a classification service for existing and/or proposed Internet content to online publishers:
(a) is the service available for existing or proposed Internet content, or both;
(6)(a) Internet service providers and online publishers may submit existing or proposed Internet content for classification by the Classification Board under the Classification Act. The content to be classified must be submitted to the Classification Board in a form that complies with the definitions set out in section 5 of the Classification Act, for example in the form of a recording on a disk, and must be accompanied by a valid application.
- It is impossible to place some types of web sites on a portable disk for posting to the OFLC. The interactivity of some sites depends on technology of the web server (e.g. dynamic sites, database facilited sites, etc), hence content submitted on a portable disk may have a different level of interactivity than when it is on the Internet. The OFLC Board is required to take interactivity into account when classifying and this affects whether the material is classified as a film, an interactive click-on access film, or a computer game. Hence material on a portable disk may be given a different classification than would apply to content actually on the Internet.
- Will the OFLC classify content while it is on the Internet for police, although they will not for Internet publishers? The answer to 7(a) suggests they may.
- Section 5 of the Comm. Classification Act does not contain any requirement that a recording be submitted "on a disk". The definition of a film is "film includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced". In any case, a web page is already "on a disk" when it is on the Internet. Apparently however, the OFLC has decided to interpret the definition as referring to a recording on a portable disk and ignore the reference to "any other form of recording".
(b) on what dates did the OFLC commence providing these services;
(b) The Classification Act came into effect on 1 January 1996.
(c) (i) what is the procedure for applying for classification of Internet content, and
(ii) has this procedure been made known to the public in legislation or elsewhere;
(c) (i) The procedure for an online publisher applying for classification of Internet content that falls within the definitions set out in section 5 of the Classification Act are set out in section 11 of the Act in the case of a 'publication', section 14 of the Act in the case of a 'film', or section 17 of the Act in the case of a 'computer game'.
(ii) The classification application procedure is set out in the Classification Act, which has been in force since 1 January 1996.
- A web page that consists of text, static images and links falls within the definition of a film and a computer game, depending on the opinion of the Classification Board about how "interactive" it is. It may also be an interactive click-on access film, i.e. a film that "comprises a recording from which a computer generated image can be produced" and "the recording enables a person using it to choose from 2 or more visual images the image that will be viewed" (Subsection 14 (4) of the Act).
- Under the procedures in the Act, in the case of interactive material, an applicant who does not demonstrate the material to the Classification Board is charged hundreds of dollars more to obtain a classification. If the Classification Board deems particular material to be an interactive click-on access film, Internet publishers who are not located in Sydney where the OFLC office is, will have no choice but to either pay vastly more than persons in Sydney or travel to Sydney to demonstrate the interactiveness of their material. Fees are:
- An interactive or click-on access film, if demonstrated by the applicant $690
- An interactive or click-on access film, if not demonstrated by the applicant $1,490
- The OFLC will have the power to decline to classify an interactive film if the applicant does not demonstrate it, once amendments to the Act approved by Parliament in early 2001 come into force (by March 2002 if not earlier).
- Moreover, Section 14 of the Act states that "An application for classification of a film...must be: (a) in writing; and (b) made in a form approved by the Director in writing;...". Where is information available to the public on what "form" the OFLC Director has approved "in writing" relative to an application for classification of film that is a web page on the Internet?
(d) what procedure does the OFLC have in place to enable them to identify whether the OFLC has issued a classification certificate applicable to particular Internet content, for example, where content is subsequently moved to a new address/hosting location on the Internet as a result of the publishers content host/ISP ceasing operations;
(d) The onus is on the applicant to decide whether to submit material for classification. The Classification Board classifies material that is placed before it on receipt of a valid application. The Board maintains detailed records of all classification decisions, including content descriptions and, in some cases, copies of the classified material for the purpose of future identification. In cases where there is doubt about the classification status of material submitted for classification, the Classification Board may interrogate relevant records to ascertain whether the material is identical to previously classified material. The Classification Act provides that if material that has been classified is subsequently modified, the material becomes unclassified. The onus as to whether previously classified material has been modified and therefore requires classification, lies with the applicant. Where there is enduring doubt about the classification status of material submitted for classification, the Classification Board may classify the material and issue a certificate.
- Translation: The OFLC does not intend to keep copies of Internet content it has been paid to classify (if they intended to do so that could have been stated in the answer).
- Unless the OFLC keeps copies of classified content, a certificate will be of no use whatsoever to an Internet publisher alleged by police to have made available objectionable material because the OFLC will not have any way of knowing whether the content is identical to the content they classified. Therefore, there will be "enduring doubt" and the OFLC "may" classify it again, charging the Internet publisher a second fee.
- This situation makes it irrelevant that Net content is dynamic and often changed. Obtaining a classification certificate prior to publication will be pointless even if the content is never changed.
(e) what is the amount of the fee charged to online publishers for classification of Internet content consisting of a web page containing solely of text and non-moving images;
(f) is the classification fee referred to in (e) prescribed in the Schedule to the Commonwealth classification regulations; if so, is the fee based on running time of a film (minimum $770) or is the fee that is applicable to publications such as magazines and books ($130); and
(e) and (f) The Classification (Publications, Films and Computer Games) Regulations (the Regulations), Schedule 1, set out the fees for classification. If the content is submitted for classification as a 'film' the fee will be calculated on the running time of the 'film' unless it is an 'interactive film', in which case the fees prescribed for 'interactive films' will apply. If the content comprises a 'computer game' and is submitted accordingly, the prescribed fees for 'computer games' will apply. If a print-out of the content is submitted for classification as a 'publication', the fee will be calculated in accordance with the prescribed fees for 'publications'.
- The fee does not always depend on whether the publisher submits for classification as a film or computer game. The OFLC Board has the power to decide whether material will be classified as a film or computer game depending on, among other things, interactivity. (See under (4) & (5) above for more information).
- Further, the answer provides no guidance as to actual fees because fees depend on what the OFLC regards as a "film". If a web page contains text and 3 static images, when the material is placed on a portable disk and sent to the OFLC there would be 4 files on the disk, each of them fitting the definition of a "film". Will the applicant be charged for one film or three or four films?
- How long does a web site run for?
- If a web page contains an animated image (i.e. one that runs for a few seconds and then automatically repeats the sequence for as long as it is on a computer screen) will the OFLC regard this as a never ending film and charge for the longest running time, i.e. more than 300 minutes (fee more than $1000).
- If an Internet publisher charges for access to content on their web site, i.e. sells/hires content, will they be charged the fee for classification of a film for sale or hire, or for public exhibition?
(Note: "public exhibition" is not defined in the Classification Acts. Charging a fee for classifying a film for "public exhibition" presupposes that someone will "project or screen" the material in a public place, which means "any place which the public is entitled to use or which is open to, or used by the public, whether on payment of money or otherwise;". Either the OFLC uses this assumption to charge on that basis, or it would have to charge for classifying an "interactive click-on access film". The latter is likely to be considerably more expensive for Internet publishers who do not reside in Sydney.)
- Prescribed fees are:
A film (0-15 minutes) for public exhibition: $770
A film (0-15 minutes) for sale or hire: $510
An interactive or click-on access film, if demonstrated by the applicant $690
An interactive or click-on access film, if not demonstrated by the applicant $1,490
A computer game, if the application for classification is accompanied by an assessment of the game by an authorised person
A computer game other than a computer game specified above $590
(g) if the fee is not prescribed in the regulations, why not.
(g) Not applicable.
(7) If the OFLC has not provided a classification service to online publishers to date, in relation to the proposed amendments to the South Australian classification act:
(a) does the OFLC intend to commence classifying Internet content after material has been placed online, or require content to be provided to the OFLC by post on portable media, etc.;
(7)(a) The OFLC does not classify material on the Internet unless the content has been down-loaded or stored on a recording, such as on a computer disk, or printed out.
- A web page on the Internet is stored on a computer disk and this is acknowledged by the Commonwealth Broadcasting Services Act given the ABA censors such web pages. If material available on the Internet is not stored, then it is not subject to censorship under the Commonwealth Broadcasting Services Act. So here we have one part of the Commonwealth Government claiming material on the Internet is not stored on a recording while another part claims it is.
- What does "down-loaded" mean in the context of the statement above "The OFLC does not classify material on the Internet unless the content has been down-loaded". This implies the OFLC does down-load content to classify it, but will not do so to classify for Internet publishers, perhaps only for the police and ABA? If so, this raises the potential for classifications to be provided to police that are not the same as classification for the same content on a portable disk, for example, as a result of interactivity of content on the Internet.
(b) what procedure does the OFLC intend to establish to enable them to identify whether the OFLC has issued a classification certificate applicable to particular Internet content, for example, where content is subsequently moved to a new address/hosting location on the Internet as a result of the publishers content host/ISP ceasing operations, etc.;
(7)(b) See 6(d) above.
(c) what is the amount of the fee to be charged to online publishers for classification of Internet content consisting of a web page containing solely of text and non-moving images;
(d) is the classification fee referred to in (c) prescribed in the Schedule to the Commonwealth classification regulations; if so, is the fee based on running time of a film (minimum $770) or is the fee that is applicable to publications such as magazines and books ($130); and
(c & d) The amount of the fee would be calculated in accordance with the Regulations and would depend upon the form in which the content was submitted for classification.
- This provides no guidance because, as outlined above, the fee depends on what the OFLC regards as a "film", an "interactive click-on access film" and a "computer game". How various types of Internet content would be regarded by the OFLC is far from obvious.
(e) if the fee is not prescribed in the regulations, or is the fee applicable to films, is it intended to prescribe new fees applicable to Internet content.
(e) The existing fees as prescribed in the Regulations will continue to apply. The question of prescribing fees specifically for applications for classification of Internet content is a matter that may be considered when the fees are next reviewed.
(8) (a) What are the amounts of classification fees for various types of Internet content (for example, moving images, non-moving images, text, etc) charged by the OFLC to the Australian Broadcasting Authority, under the provisions of the Commonwealth Broadcasting Services Act; and (b) are these fees prescribed in the Commonwealth classification regulations; if not, why not.
(8)(a) and (b) Classification fees collected by the OFLC from the Australian Broadcasting Authority (ABA) under the Broadcasting Services (Online Services) Amendment Act 1999 are prescribed in the Regulations.
- Since material classified for the ABA is being classified R, X or RC, it is obviously being classified as a film (classifications applicable to publications are Category 1, Category 2 and RC, not R, X and RC and there is no R or X classification for computer games). Therefore, the ABA is apparently paying a minimum of $690 per "film" (which may be an image or a web page or an entire web site depending on what the OFLC regards as a "film".)