30 November 2009
ACMA accepts enforceable undertaking from AUSTAR after finding code breaches on program classification
The Australian Communications and Media Authority has accepted a court-enforceable undertaking from AUSTAR Entertainment Pty Limited designed to ensure that content rated higher than MA15+ is not broadcast on its subscription broadcasting services.
This follows an investigation by the ACMA which found that two episodes of the program Cathouse —‘Never too Late to Learn’ and ‘Superstars’—broadcast on AUSTAR’s Showtime Channel, contained sexual content and nudity that could not be accommodated at the MA15+ classification, and therefore breached the ASTRA Subscription Television Codes of Practice 2007 (the codes).
Cathouse is a reality television program set inside a legal American brothel. The ACMA investigated AUSTAR’s broadcast of the program in response to a complaint from a member of the public. Under the codes, content higher than MA15+ cannot be broadcast on subscription broadcast television services.
The undertaking requires AUSTAR to review the classification of all episodes of Cathouse prior to broadcast, attend annual classification training conducted by the Classification Board and include more robust classification and complaints-handling provisions in its contracts with channels that are likely to broadcast programs containing sexual content and nudity.
‘Consistent with previous ACMA guidance, the ACMA considers classification-related breaches that are at the upper threshold of what may be broadcast on Australian television as particularly serious. Licensees of broadcasting services must have effective procedures in place for the correct classification of programs in accordance with the relevant code of practice and, if necessary, programs must be modified before they are broadcast. In offering this undertaking, AUSTAR is acknowledging the community sensitivity around adult content and its responsibility to ensure that high-end content is correctly classified. The embedding of classification requirements in third-party channel agreements is a noteworthy initiative,’ said Chris Chapman, Chairman of the ACMA.
In August, the ACMA accepted an enforceable undertaking from FOXTEL Cable Television in response to similar classification breach findings (including a breach finding relating to another episode of the program Cathouse). Further, earlier this year, the ACMA accepted enforceable undertakings from The Nine Network and WIN Corporation licensees relating to the classification of Underbelly and Gordon Ramsay programs on commercial free-to-air television.
Media contact: Donald Robertson, Media Manager, on (02) 9334 7980.
The ACMA conducts various types of investigations under the Broadcasting Services Act 1992 (the BSA). Investigations under Part 11 of the BSA are conducted in response to complaints received by the ACMA relating to a possible breach by:
- a licensed broadcaster: of the BSA, the regulations, a licence condition, a class licence or a code of practice; or
- the ABC or SBS: of a code of practice.
Role of the ACMA
The ACMA’s role in dealing with complaints under industry codes is prescribed by the BSA. Under section 148 of the BSA, a code complaint must be made first to a licensee and can only be made to the ACMA if the complainant is not satisfied with the licensee’s response. In addition, the ACMA can instigate its own investigation and the Minister for Broadband, Communications and the Digital Economy can direct the ACMA to conduct an investigation.
The ACMA’s performance of this role is informed by section 5 of the BSA, which requires the ACMA to, among other things:
- produce regulatory arrangements that are stable and predictable;
- deal effectively with breaches of the legislation; and
- use its powers in a manner that is commensurate with the seriousness of the breach concerned.
This requires the ACMA to use its enforcement powers appropriately and to identify the most effective and proportionate way of dealing with breaches. This is further reinforced in the Explanatory Memorandum to the BSA:
It [section 5] promotes the ABA’s [now the ACMA’s] role as an oversighting body . . . rather than as an interventionist agency hampered by rigid, detailed statutory procedures and legalism . . . It is intended that the ABA [now the ACMA] monitor the broadcasting industry’s performance against clear, established rules, intervene only where it has real cause for concern, and has effective redressive powers to act to correct breaches.
This statement reflects Parliament’s intention in enacting the co-regulatory framework and the ACMA’s prescribed role within that framework.
The ACMA’s powers
The ACMA has a range of powers intended to enable it to deal effectively with breaches of the rules (including, in particular, the program standards and licence conditions) established by the BSA or the codes developed under the BSA, all in a manner commensurate with the seriousness of the breach.
Where there has been a breach of the ASTRA Subscription Television Codes of Practice 2007 (the codes), the ACMA may accept an enforceable undertaking for the purpose of securing future compliance with the code or impose an additional licence condition under Part 8 of the BSA requiring a licensee to comply with the code. For a licence condition to be imposed under Part 8 of the BSA, the ACMA first needs to give the licensee written notice of its intention to impose the licence condition; the licensee must be given a reasonable opportunity to make representations to the ACMA in relation to the proposed licence condition which the ACMA must consider under natural justice principles and the proposed licence condition must be published in the Commonwealth Gazette before becoming effective. The licensee can apply for the ACMA’s decision to be reviewed by the Administrative Appeals Tribunal.
The ACMA may also seek through negotiated agreement actions by broadcasters to improve compliance. For example, the ACMA has on many occasions agreed to measures with licensees involving action by them intended to ensure compliance problems are addressed and are effective. Section 205W of the BSA permits the ACMA to accept enforceable undertakings regarding compliance with the BSA or with a code of practice. Such measures have often succeeded in improving behaviour within licensees (and networks).
Under section 205X of the BSA, if the ACMA accepts an enforceable undertaking and later considers that the undertaking has been breached, the ACMA may apply to the Federal Court for any or all of the following orders:
- an order directing compliance;
- an order directing payment to the ACMA an amount up to the amount of financial benefit gained by breaching the undertaking;
- any order the court considers appropriate to compensate any other person who has suffered loss or damage as a result of the breach;
- any other order considered appropriate by the court.
If the ACMA has convincing evidence that a code of practice has failed to provide appropriate community safeguards in relation to a matter, it can determine a new program standard to apply to a particular section of the broadcasting industry.
The MA15+ classification requirements are detailed in the ASTRA Codes of Practice 2007 - Subscription Broadcast Television.