Thursday, July 28, 2011

National Classification Scheme Review Submission

Here is my submission for the ALRC's National Classification Scheme Review. At time of writing this, it isn't live on their site, as they were inundated with over 2000 submissions, so I thought I'd post my response here. I think it is pretty good, but not perfect, so let me know how you think it could be improved.

Approach to the Inquiry

Question 1.    In this Inquiry, should the ALRC focus on developing a new framework for classification, or improving key elements of the existing framework?
The ALRC should focus on developing a new framework that is designed to make the media rating system optional and mostly self-regulating and allow retailers to distribute any legal media to anyone, subject to a code of practice, into which producers, publishers, distributors and retailers can choose to opt.
In short, there should be a voluntary, self-classification system for all media, utilising the same standards.

Why classify and regulate content?

Question 2.    What should be the primary objectives of a national classification scheme?
  • To minimise the occurrence of freedom of speech breaches while achieving the other objectives.
  • To minimise hardship on producers, publishers, distributors and retailers where classification is uneconomical or otherwise undesirable.
  • To allow the public to inform themselves about the categories of content in media.
  • To prevent accidental exposure to inappropriate material.
  • To recognise that intentional seeking out of age-inappropriate material cannot be practically stopped at the policy level.
  • To allow producers, publishers, distributors and retailers the freedom to choose whether to take part in the system.
  • To encourage producers, publishers and distributors to opt into the system of self-classification for the benefit of being more marketable to younger audiences.
  • To encourage producers, publishers, distributors and retailers to choose to restrict who can access their media for the benefit of being more marketable to younger audiences.
  • To discourage inaccurate self-classification of material through a penalty system that is proportionate to the level of inaccuracy.

What content should be classified and regulated?

Question 3.    Should the technology or platform used to access content affect whether content should be classified, and, if so, why?
If the current style of classification is retained, then platforms that are not economically feasible to classify should:

  • be exempt from classification
  • allow for self-classification
  • allow for crowd-sourced classification
Retaining the current form of classification is not desirable, however, because:
  • Jurisdictional issues mean content from outside of Australia either needs to be filtered at the border, which is and/or enables censorship
  • Classified media can be released on other platforms to be both classified in one form and unclassified in another form
  • It makes expression subject to bureaucracy, which would be a breach of civil liberties in most Western countries, including Australia depending on the content of the expression.
If the system itself is overhauled to become based around optional self-classification with a default mature rating, which producers, distributors, publishers and retailers can choose to enforce, then the system can apply across the board.

Question 4.    Should some content only be required to be classified if the content has been the subject of a complaint?
Unclassified material should be considered to be for a mature audience by default.

Parents should vet media to be consumed by children where possible, so having media go from unclassified to a mature classification would not have an effect if parents are not vetting the media before viewing.

If a platform does not have the ability to communicate a classification, then a complaint won't make that content any more secure against consumption.

It would also be dangerous to make an entire site, like a blog or a video site, classified due to a single posting that falls outside of its normal level of age-appropriateness.

Question 5.    Should the potential impact of content affect whether it should be classified? Should content designed for children be classified across all media?
The potential impact of content should not affect whether it is classified. It should only affect what the classification is, if the media is classified. In a system of voluntary self-classification, inaccurately reflecting the impact of content should be penalised according to the degree of misclassification.

Whether content that is appropriate for children is classified as such should be left up to the market. Classification, whether self-applied or otherwise, provides a competitive advantage for companies marketing media to children, because it informs parents that the media is appropriate.

Question 6.    Should the size or market position of particular content producers and distributors, or the potential mass market reach of the material, affect whether content should be classified?
The free market should drive whether producers and distributors opt to have their media classified.

Very large companies producing a manageable amount of media, like movie, book or game studios will continue to have their material classified due to public opposition if they stop.

Enough stores and cinemas will refuse to sell/show unclassified media that it would be uneconomical for large companies to opt out. And if the classification system is based on self-classification, then even small producers and publishers can afford to classify their media.

Question 7.    Should some artworks be required to be classified before exhibition for the purpose of restricting access or providing consumer advice?
Like with all forms of classification, providing consumer advice is extremely important, but restricting access should be left to the exhibitor and the parents.

An exhibition, like a website, should not be off limits to a child solely because one out of potentially thousands is considered age-inappropriate. An exhibitor should still be free to restrict access if they choose.

Question 8.    Should music and other sound recordings (such as audio books) be classified or regulated in the same way as other content?
All media should be classified in the same way. Movies, music, photos, books etc. are all just ways of delivering auditory and visual stimuli. The same ideas and images can be conveyed using any of these media, albeit relying on different amounts of imagination.

That said, the classification system should still be decentralised to the producer or publisher, and be voluntary. It is wasted effort, time and money to have to submit media to a central authority.

Question 9.    Should the potential size and composition of the audience affect whether content should be classified?
In a voluntary, self-classification system, then it makes economic sense.
In the current system, it is can be uneconomical and contrary to civil liberties to try to classify media that has the highest potential audience size.
This submission, for instance, has a potential audience size of several billion, as it will be available publicly on For me to go through classification in order to be able to have this appear on the site would be anathema to a free discourse about the politics of our nation. And if I were to swear in this submission, children would potentially be barred from reading my ideas on censorship.

Question 10.    Should the fact that content is accessed in public or at home affect whether it should be classified?
It is entirely impractical to determine whether content will be accessed from home or otherwise. This question is trying to grapple with issues of scope and scalability because it is not possible to classify everything.
This kind of question would not be an issue if the classification system were voluntary and left up to the producers.

Question 11.    In addition to the factors considered above, what other factors should influence whether content should be classified?
If consumers want content classified, and classification is made trivial through self-classification, then the scalability issue is effectively solved and there will be an increase in the total amount of classification of works.
One thing to keep in mind is that websites that get content from the public should be encouraged to allow users to self-classify uploaded content. But as inaccurate self-classification would be subject to a penalty, this kind of functionality should either only be open to identified users, or the sites should be considered common carriers and have safe harbour protections if they comply with requests for classification adjustment where inaccuracy is pointed out.

How should access to content be controlled?

Question 12.    What are the most effective methods of controlling access to online content, access to which would be restricted under the National Classification Scheme?
Turn off the internet or the power stations.
Senator Conroy's internet censorship plans, among many other issues, were trivially easy to circumvent in literally dozens of ways.
In a multi-jurisdictional environment like the internet, "controlling access" means localised censorship, but censorship doesn't (and shouldn't) work.
Even the recent "worst of the worst" interpol blacklist is trivially easy to sidestep in several ways.

Any reasonably competent IT professional will answer with effectively the same conclusion. China spends a lot of money on this and it doesn't work for them. Some of the middle east countries recently even shut off the telecommunications companies in order to try to stop the spread of information. People set up radio broadcasting equipment to cobble together basic internet access into neighbouring countries.
"The Internet treats censorship as damage and routes around it" -- John Gilmore.

Question 13.    How can children’s access to potentially inappropriate content be better controlled online?
  • Parents can take an interest in what their kids are doing
  • Computers should be in common areas of the house
  • Parents can choose to install client-side filtering software to stop accidental access to inappropriate material
But also, it should be accepted that children might be exposed to some inappropriate content at some point, especially if they look for it. It's not the end of the world. There's no need to panic.

Question 14.    How can access to restricted offline content, such as sexually explicit magazines, be better controlled?
There should not be legal restrictions in place, unless a retailer reneges on a commitment to opt into a code of conduct.

There is no compelling evidence that exposure to sexually explicit material at a young age is damaging.

Sexually explicit material is meaningless for a prepubescent child. Almost all the men that I know first saw sexually explicit material at around the age of 13, because it is when they first became interested, so they sought it out. They are all functional in society.

That said, access should be controlled through societal pressure on retailers to not allow access to the material. It won't stop the access, but it will slow it.

Question 15.    When should content be required to display classification markings, warnings or consumer advice?
It shouldn't be required, unless the producer, publisher, distributor or retailer chooses to mark the goods with a classification.

Who should classify and regulate content?

Question 16.    What should be the respective roles of government agencies, industry bodies and users in the regulation of content?
Government agencies and industry bodies should set the classification standards. Government agencies should review complaints and should penalise deviation from advertised classification or breaches of the code of conduct if retailers have opted in. Users should merely consume what they want.

Question 17.    Would co-regulatory models under which industry itself is responsible for classifying content, and government works with industry on a suitable code, be more effective and practical than current arrangements?
Any form of deregulation and decentralisation would be better than the current model, however as already recommended throughout this response, moving to a voluntary, self-classification system would be the ultimate form of responsible, decentralised deregulation.

Question 18.    What content, if any, should industry classify because the likely classification is obvious and straightforward?
If the classification system is appropriately decentralised, then there is no need for an overarching body to perform classifications, though assessments of classifications in the case of complaints could still be in their realm.

Classification fees

Question 19.    In what circumstances should the Government subsidise the classification of content? For example, should the classification of small independent films be subsidised?
If the classification system is appropriately decentralised, then there is no need for the government to sped any money subsidising the classification of content, though they could subsidise a body that deals with complaints if they don't want to do it themselves.

Classification categories and criteria

Question 20.    Are the existing classification categories understood in the community? Which classification categories, if any, cause confusion?
The lack of an R18+ games rating is confusing, especially when most of the games that are 17 or 18+ overseas get released as 15+ with no or few modifications over here.
I understand the distinction between M15+ and MA15+, but many don't understand the distinction.
It seems strange that music is only subject to the one classification of "explicit lyrics", where most of what goes into the other forms of classification is about the expression of ideas and themes regardless of the language used.

Question 21.    Is there a need for new classification categories and, if so, what are they? Should any existing classification categories be removed or merged?
If classification is used primarily for consumer advice, rather than for restrictive means, then it would be good to know that there are religious themes in media.

Question 22.    How can classification markings, criteria and guidelines be made more consistent across different types of content in order to recognise greater convergence between media formats?
Introduce an R18+ rating for games and move the music industry across to the same rating system.
Use the same branding for the ratings independent of media.

Question 23.    Should the classification criteria in the Classification (Publications, Films and Computer Games) Act 1995 (Cth), National Classification Code, Guidelines for the Classification of Publications and Guidelines for the Classification of Films and Computer Games be consolidated?
The above question recognised the trend of convergence between media formats. The wording of the legislation should be media-independent.

Refused Classification (RC) category

Question 24.    Access to what content, if any, should be entirely prohibited online?
I know most others will, without qualification, say child abuse material, but I have to qualify that opinion. Intentional creation, distribution and possession should be prohibited without a doubt. Accessing it could be prohibited in the legal sense, but it should never be so blown out of proportion to the size and impact of the problem that the prohibition takes the form of active censorship.

Hate speech and incitement to commit crimes should also not be prohibited to the level of censorship. The people creating and distributing the material should be pursued in more conventional ways, if appropriate.

Question 25.    Does the current scope of the Refused Classification (RC) category reflect the content that should be prohibited online?
No. RC goes well beyond what should be prohibited online. Instruction in euthanasia or graffiti is currently RC, even where it should form part of our limited rights to free political speech.

RC as a category is is ridiculous as a concept. It is actually a restricted classification, and should be called that, if it is retained.

Reform of the cooperative scheme

Question 26.    Is consistency of state and territory classification laws important, and, if so, how should it be promoted?
Consistency is more important the greater the restrictions and centralisation of power there is. If it is recognised that our current system, and any other system that might replace it, is effectively unenforceable, then consistency is not very important. It is also somewhat of a moot point, as differences between the states will be minor anyway.

Question 27.    If the current Commonwealth, state and territory cooperative scheme for classification should be replaced, what legislative scheme should be introduced?
If the federal legislation were to be relaxed to the voluntary, self-classification system that I have outlined, and the system is intended to cover all bases, then the only area of differentiation between the states would be how they implement legislation for the treatment of printed matter that originates and remains in the state.
Otherwise, s51 (i), (v) and maybe (xviii), (xx) or (xxix) of the constitution can be used to cover off the rest of the field of media.
If that's not enough, the federal government can pay off the states to refer the matter under s51(xxxvii). The savings in having a decentralised, self-regulating system would pay for the cost eventually.

Question 28.    Should the states refer powers to the Commonwealth to enable the introduction of legislation establishing a new framework for the classification of media content in Australia?
As stated above, it is only for physical media created and remaining within a state that a referral would even be required. And within this small sphere of media, differences would be few, and the enforcement almost non-existent.
That said, if a relaxed approach is taken to classification, then yes, it should be referred to the commonwealth. If a restrictive approach is taken, then it is good to be able to move to a less restrictive state, which means variation is a good thing and a referral would be bad.

Other issues

Question 29.    In what other ways might the framework for the classification of media content in Australia be improved?
Independent of what system is eventually adopted, the focus should be on preventing, as much as feasible, abuses of power by future governments. Classification should not be a way of implementing censorship.

Other comments:
Some of the content, and many of the ideas come from the draft policy on classification of the Pirate Party:

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