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The media

14 Sep 2016 - 15:44 | Version 9 |

Contributed by DominicGomez, Alexandria Jones and Rikki Hudson and current to 1 May 2016

Media includes print (newspapers, magazines, newsletters); digital broadcast (radio, television and subscription television); and online via the internet. The media is concerned with the dissemination of news, ideas and opinions, and is regarded as the cornerstone of a democratic society.

The law as it relates to the media has developed over centuries and includes issues such as freedom of speech, freedom of information, editorial independence, defamation, plagiarism and copyright, contempt of court and Parliament, as well as developing areas such as privacy law and vilification on the basis of race or sexual preference.

The internet has expanded the scope and reach of the media exponentially. For example, a Sydney-based print newspaper can now be digitised, uploaded, and viewed on a computer in Fiji and a mobile phone in Alaska. The outcome is that traditional outlets such as print newspapers are questioning their sustainability. Major media corporations are also reassessing to understand and capitalise on the internet as a forum for distributing content in the wake of the increasing evolution of user-generated content.

The internet

Although the law has often lagged behind the development of new media such as the internet, in general, internet 'publishers' face the same set of legal issues. Independent individual internet publishers or sites have the same sorts of legal responsibilities as the major media corporations, such as those associated with defamation or breach of copyright. These issues are extremely important and should be given due consideration by anyone contemplating publishing on the internet. The real or potential large size of the 'readership' of material published on the internet may make this sort of publication a more serious (aggravated) act of contempt or defamation, for example (see Copyright ; Defamation ).

The Local Court hears claims for damages of up to $100,000. Claims for more than that must be made to the Supreme Court.

Managing children's access to the internet

Parents and guardians are often concerned about children encountering inappropriate material on the internet. This section outlines the ways in which internet material is regulated in Australia, what parents and guardians can do, and where to find more information.

The co-regulatory scheme

Australia now has a 'co-regulatory' scheme for online content, which includes content on the internet and on mobile phones. The scheme aims to address community concerns about content, particularly where children might access inappropriate material. The Australian Communications and Media Authority (ACMA) administers this scheme (pursuant to the Broadcasting Services Act 1992), however 'co-regulatory' means that the internet industry and the community are also involved.

For the scheme to take effect, there must be an 'Australian' connection.

The internet industry's involvement requires Internet Service Providers (ISPs) to provide end users with information and tools such as content filters to control internet content in their homes. The industry also requires Australian internet content hosts to take down any content the subject of a complaint to ACMA where ACMA considers that the content breaches Australian law.

As part of the scheme, ACMA has developed a Restricted Access Systems Declaration which regulates access to both restricted content on the internet and mobile handsets. Restricted content (discussed below) must only be displayed on the internet or mobile phones where the Australian content service provider has systems to verify that people who access MA15+ content from a commercial content service or a premium mobile service are at least 15 years of age, and people accessing R18+ content are at least 18 years of age. Examples of how this can be done are discussed below.

Whether content is MA15+ or R18+, the system must warn the user about the nature of the content and give options for parents and guardians to control access to that content.

The scheme also allows people to complain where they think offensive content is available unlawfully (see When a complaint is received , below).

Classification of content

Internet content is generally classified using the same categories used by the Office of Film and Literature Classification (at cd) for classifying films and computer games.

Content hosted in Australia and classed as:
  • Refused Classification (RC)
  • X
  • R (that is not protected by adult verification procedures)
is unlawful.

If the content is hosted overseas, then only content rated RC and X is unlawful.

Refused classification

Material that deals with sensitive topics like sex, drug misuse, crime and violence in a way that offends against the standards of reasonable adults, or offensively depicts a person who is or who looks as though they are under 16, will be refused classification or 'RC' by the Office of Film and Literature Classification. RC content cannot be legally hosted on an internet site in Australia, just as an RC film cannot legally be brought into the country.

X-rated material

X-rated material (such as depictions of actual sexual activity) is also prohibited on the internet, as are X-rated films in most States (the exceptions are the ACT and the Northern Territory). Content that contains depictions of actual sexual activity between consenting adults and is considered unsuitable for a minor to see, but does not fall into the RC category, is classified X.

Examples of X rated material are:
  • material containing detailed instruction in crime, violence or drug use
  • child pornography
  • bestiality
  • excessively violent or sexually violent material
  • real depictions of actual sexual activity.

R-rated material

R-rated content is material that is not RC or X but is classified as unsuitable for a minor to see. For this material, there should be a restricted access system to prevent access to the content by people under 18 years of age. If there is not, this material can also be the subject of a complaint.

Examples of R-rated material are:
  • material containing excessive and/or strong violence or sexual violence
  • material containing implied or simulated sexual activity
  • material which deals with issues or contains depictions which require an adult perspective.

Restricted access systems

A restricted access system must have a registration process where applicants prove that they are at least 18 years of age. Subscribers must input a special PIN or password before they can get access to the R-rated material.

To assess whether a user is 18 years of age or over, the user may apply for access in writing, in electronic form, or verbally, and will be required to provide evidence that they are at least 18 years of age. This evidence must satisfy a 'risk analysis'.

A provider of R content must have:
  • a risk analysis strategy to identify whether a user's age might have been submitted by someone other than the user named, and whether the age of the user is accurate. The strategy should also contemplate the nature of the evidence of age provided (e.g. a drivers licence or a school ID card) and how it was submitted (e.g. in person or scanned)
  • records of how it established each user's age and keep these for two years. ACMA can request copies of these records, and the provider must comply with the Privacy Act 1988 (Cth)
  • a mechanism to prevent access to a user who the provider subsequently discovers is underage
  • a mechanism for periodic reviews of its age-analysis procedures.
Depending on the State or Territory and the particular situation, if children have accessed the material, police may prosecute the content provider, the content host and the ISP.

Discrimination and vilification

Material that denigrates a particular group of people may also be unlawful.

The Australian Human Rights Commission assesses this type of content. To date, there has only been one successful complaint, about website material that was deemed to incite racial hatred. For information on how to complain, see http://hreoc.gov.au/complaints_information/online_form/index.html.

The relevant Commonwealth laws are: In addition to the Commonwealth laws, each State has its own anti-dicrimination legislation and investigative bodies.

The complaints system is only one part of the shared effort to regulate internet material. The Communications Alliance Limited (CLA) has developed codes of practice in a variety of different areas. http://www.commsalliance.com.au/home.

Filters and labels

Email and internet material in real time (chat rooms, live audio or video streaming) are generally not covered by the classification procedures or the industry codes (Victoria is a partial exception, with racially or religiously vilifying email being illegal).

However, there are other tools to help regulate this material and assist parents or guardians to manage their children's access to the internet for free such as filters (discussed above). Filters are programs that in some way block access to inappropriate material from websites, newsgroups, chat rooms and email. Filters can also restrict results from search engines.

Labelling tools can help filters by creating lists of sites. Black lists use the names of sites with offensive content to block access to them. White lists block everything except inoffensive sites. Content-based filters block access to sites based on key offensive words or on some photographic content that might be unsuitable for children. The different types of filter can be used in combination depending on what is required.

Filter programs can operate on a home computer or through an Internet service provider, who is obliged to provide information about filtering software and the filters they offer. Service providers must provide a filter approved in the Internet Industry Association codes of practice.

Filters and labelling tools can also be purchased from computer shops or producer websites.

Safe zones

Safe zones are networks suitable for young children, and are separated from the rest of the internet. They are available via subscription or through some service providers. Specific children's zones may also be hosted on commercial sites or supported by advertising.

It is important to remember that no tool is completely infallible. The consumer advice websites can help parents and guardians to choose the best strategy.

Chat rooms

Chat rooms are places where real-time conversations take place in a text mode. They are usually public, although private chat rooms are offered on some sites.

Most children, like people in general, use pseudonyms so that the person's real identity is not apparent. This means that sometimes a child may believe they are chatting to another 12 year old, when it may in fact be a person much older. There have been some instances where adults have attempted to exploit children by contacting them in chat rooms.

The current regulatory approach emphasises education and guided information for children. It is important that children know what personal details they can give out when they are online, for their general safety and for the security of the household as a whole. This is becoming a more prevalent concern with the popularity of social networking sites.

The IIA's Content Services Code suggests commercial content service providers should consider the following to address the risk of and minimise the potential for illegal contact between children and adults through their chat services:
  • age restriction to users 18 years and over for chat services
  • human moderation
  • human monitoring
  • electronic filtering
  • vetting profile information of users registering for access to the chat service
  • limiting potential profile information
  • limiting search results so that a service does not return search or browser results
  • for users who state that they are under 18
  • managing permissions to contact users through a compulsory request
  • response procedure
  • limiting search results to include only those profiles about a user that the user has
  • agreed be placed in a directory
  • implementing an ability for the user to block unwanted contact.

Harassment and discrimination

Unlawful discrimination can occur through email. An organisation that deals with an employee or other person via email in a way that treats them less favourably than someone else on the grounds of sex, race, disability, sexuality, gender status, age pregnancy, marital status or on other grounds could be prosecuted for discrimination under workplace relations and discrimination law.

Certain other email practices, including sending offensive material or giving another person unwanted attention, may constitute discrimination or harassment under discrimination and workplace relations law.

'Cyber-bullying'

Cyber bullying is the use of technology to bully a person or group of people with the intent to hurt them socially, psychologically or physically (see https://esafety.gov.au/esafety-information/esafety-issues/cyberbullying?from=cybersmart). Cyberbullying can occur via email, via social media such as Facebook or Divas Chat or even over SMS/text message.

Cyberbullying can include making threats online to harm someone, or online harassment and bullying about someone's race, disability, sex or age.

There is no specific criminal offence of Cyberbullying but there is a range of existing offences in multiple jurisdictions which can be breached by Cyberbullying behavior. Cyberbullying breaks the law when it becomes harassment that is illegal or when it involves someone making threats against a person that are illegal.

Relevant criminal offences include:
  • Common Law Assault - the offender attempt or threaten to apply force. The threat must be evidenced in some way and the threat creates an apprehension in the victim of present or immediate harm by reason of the offender apparent liability to carrying out the threat
  • Assault - section 187 Northern Territory Criminal Code Act: a direct or indirect application of force to a person that is forceful, menacing or causes fear of harm and can include false representations of assaultive conduct - max 5 years imprisonment;
  • Misuse of telecommunication services - section 474.17 Commonwealth Criminal Code Act 1995: using a carriage service to menace, harass or cause offence to a person - max 3 years imprisonment;
  • Using a carriage service to make a threat - 474.15 Commonwealth Criminal Code Act 1995: making a threat to kill a person - 10 years imprisonment; making a threat to cause serious harm - max 7 years imprisonment
  • Stalking - section 189 Northern Territory Criminal Code Act: repeated instances of communication to a person that is intended to and results in fear of own safety - max 2-3 years imprisonment;
  • Defamation - sections 203 and 204 Northern Territory Criminal Code Act: unlawful publication of information that may ruin a person's good reputation - max 3 years imprisonment.

Case Study - Application of section 474.17 Commonwealth Criminal Code Act 1995 - using a carriage service to cause offence

A recent example of the law being applied to cyberbullying behavior is the case of Chris Nelson, a NSW man who was found guilty of the charge using a carriage service to cause offence in July 2016. Mr Nelson had used Facebook to post offensive and racist comments about retiring senator Nova Peris. The Magistrate sentenced Mr Nelson to an 8 month term of imprisonment wholly suspended, fined him $2, 500 and put him on a 2 year good behavior bond. At sentencing, Nelson's lawyer said his client had been unaware of the far-reaching implications of posting such comments on Facebook.

It is important that if you feel immediate danger due to a threat on social media you should call 000.

The Office of the Children's E-Safety Commissioner has been set up by the government to assist young people who are being cyberbullied. You can visit their website here: https://www.esafety.gov.au/complaints-and-reporting/cyberbullying-complaints/i-want-to-report-cyberbullying.

The Office of the Children's eSafety Commissioner recommends taking the following action if you or someone you know is experiencing Cyberbullying:
  1. Report the cuberullying material to the relevant social media service (i.e. Facebook, Snapchat, Divas Chat).
  2. Collect evidence - copy URLs and take screenshots of the Cyberbullying material
  3. Report the Cyberbullying material to the E-Safety Commissioner: https://www.esafety.gov.au/reportcyberbullying
  4. Block the person and talk to someone you trust.

Electronic stalking

Repeated email contact, chat room messages or posting messages to bulletin boards with the intention of causing psychological harm or arousing in the recipient a reasonable fear for their safety (or that of others) may constitute the crime of stalking, punishable by fine or imprisonment.

Internet gambling

The Interactive Gambling Act 2001 (Cth) (IGA) makes it an offence to provide, or advertise, certain interactive gambling services.

An unlawful internet gambling service is a gambling service provided in the course of carrying on a business to customers using an internet carriage service, and where an individual physically present in Australia is capable of becoming a customer of the service.

ACMA is responsible for investigating formal complaints made under the IGA in relation to unlawful internet gambling content. Unlawful internet gambling content is content that can be accessed, or is available for access, by customers of an unlawful internet gambling service.

There are exceptions in the IGA that set out what is not an unlawful internet gambling service.

Complaints can be made to ACMA about unlawful internet gambling content in writing or using the online complaint form available at web.acma.gov.au/AimsWeb/gambling.jsp.

Complaints must include the following details:
  • the internet address of the internet gambling content and any other details required to access it
  • a description of the internet gambling service.

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