The Broadcasting Services (Online Content Service Provider Rules) 2018 (the Online Rules):
- regulate gambling promotional content provided on online content services in conjunction with live coverage of a sporting event
- require online content service providers providing such gambling promotional content to keep certain records.
Under the scheme, there are three categories of exemptions from the Online Rules:
- exemption for online simulcast services
- class exemption for online services that are Australian-licensed wagering services
- individual exemptions determined by the ACMA, after a request for an exemption is lodged by an online content service provider.
Additional information about each category of exemption is set out below.
- Exemption for online simulcast services
Paragraph 3(1)(e) of Schedule 8 to the BSA excludes an ‘exempt online simulcast service’ from the definition of ‘online content service’. An ‘exempt online simulcast service’ is defined at clause 4 of Schedule 8 to the BSA:
- a service, or part of a service, that is provided to end-users using an internet carriage service; and
- does no more than provide a stream of content that is identical to the stream of programs transmitted on a broadcasting service (including commercial television, commercial radio, subscription television broadcast, subscription radio narrowcast, subscription television narrowcast and SBS); and
- provides that stream of content simultaneously, or almost simultaneously, with the transmission.
This exemption recognises that where the above elements are met, the responsibility for the content rests with the broadcasting service that transmitted it. However, where the online stream is not identical to the transmitted broadcast, it will be subject to the Online Rules.
When assessing whether a stream of online content is identical to a transmitted program, the BSA advises that the following differences can be disregarded:
- differences that are attributable to technical characteristics of the provision of the transmission, such as video resolution or sound quality
- the presence or absence of any watermark-type logo or insignia that is not gambling promotional content.
If online live coverage of a sporting event does not include identical advertising content to the broadcast transmission, it will not be an exempt online simulcast service. Further, if the content stream is on a website with different banner advertising, for example, it would not be considered an exempt online simulcast service, even if the streamed portion on the website is identical to the broadcast transmission.
- Class exemption for Australian-licensed wagering services
Section 23 of the Online Rules provides a class exemption for Australian-licensed wagering services. This recognises that these services are required to comply with strict identity and age verification procedures pursuant to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and associated rules.
It also recognises the audiences for these services would typically access these services to watch or listen to live coverage of sporting events with the expectation of gambling advertising.
The exemption applies where a service falls within the definition of an Australian-licensed wagering service and complies with the minimum standards set out within the Online Rules.
This is a complete exemption to both parts 3 and 4 of the Online Rules, permitting gambling advertisements at any time. However, the safeguards in Part 5 of the Online Rules continue to apply (restrictions relating to representatives of gambling organisations and the social responsibility requirements).
This class exemption cannot be relied on unless the provider of the service:
- includes information in its terms and conditions advising of the exemption and reminding customers to take all reasonable steps to prevent minors from viewing the content stream; and
- does not advertise the coverage of the sporting event without including a notice that the content stream is exempt from parts 3 and 4 of the Online Rules.
- Individual exemptions
The BSA allows the ACMA to make individual exemption determinations, which exempts a service from some or all of the Online Rules. The individual exemption may also be subject to conditions.
In deciding whether to make an individual exemption determination, the ACMA will carefully consider each request, using the criteria specified in Schedule 8 to the BSA. We will publish a list of current exemption determinations on our website.
To what factors must the ACMA have regard in deciding whether to make an individual exemption determination?
Under subclause 15(5) of Schedule 8 to the BSA, in deciding whether to make a determination, the ACMA must consider each of the following matters:
- whether the online content service is a small online content service
- whether a failure to make the determination would be likely to have a substantial adverse effect on the financial circumstances of the provider of the online content service
- the likely impact of a failure to make the determination on the quantity and quality of content provided on the online content service
- such other matters (if any) as the ACMA considers relevant.
It should be noted that while the ACMA must consider these factors, none of these matters is determinative. More guidance on how the ACMA may consider these criteria, including any age-restriction system, can be found below.
To what factors must the ACMA have regard in determining whether a service is a ‘small online content service’?
In determining whether an online content service is a small online content service, the ACMA must consider each of the criteria set out in subclauses 15(7) of Schedule 8 to the Act:
- if the service has accounts for end-users—the number of accounts that are held by end-users who are ordinarily resident in Australia
- if the service does not have accounts for end-users—the number of end-users who are ordinarily resident in Australia
- such other matters (if any) as the ACMA considers relevant.
The number of end-users resident in Australia is a relevant consideration in assessing the potential harms that may arise from exempting these services—a smaller audience means that it is less likely that significant numbers of Australian children will be exposed to gambling promotional content.
However, the fact that a service is small does not mean an individual exemption must be automatically be granted. As indicated above, the size of a service is just one of the factors the ACMA must consider in making an individual exemption determination.
How will the ACMA assess whether the failure to make a determination will likely have a substantial adverse effect on financial circumstances?
The ACMA will consider a range of factors, including evidence from the applicant about its financial circumstances, such as:
- annual income
- annual expenditure
- most recent annual profit and loss statement/s
- whether the online service has access to funds from its parent company/or consolidated group (if applicable)
- the annual income generated from gambling advertising on the applicant’s service
- the proportion of revenue derived from gambling advertising
- the reasonable availability of alternative sources of advertising revenue.
How will the ACMA assess the likely impact of a failure to make a determination on the quantity and quality of content?
The ACMA will consider a range of factors, including evidence from the applicant about:
- the nature of the service
- the quantity and quality of the content provided on the service.
What other matters (if any) may the ACMA consider relevant in deciding whether to make an individual exemption determination?
The ACMA will assess all requests for an individual exemption determination on a case-by-case basis. In doing so, the ACMA may consider a range of matters in making its decision about whether to make a determination. As it does in a range of contexts, the ACMA’s focus is ensuring that the financial and administrative burden on online content service providers from complying with the rules is balanced against the need for appropriate community safeguards to limit any potential harms that may arise from exempting services.
Other matters the ACMA considers relevant—restricting access to content
As highlighted through the ACMA’s consultation on the Online Rules, one matter which the ACMA has identified as being relevant is where a service has an access-restriction system that ensures that, prior to providing access to content, the service verifies that an end-user in Australia is at least 18 years of age.
The ACMA considers that this matter is relevant as it reflects the specific policy intention of the Online Rules to reduce the exposure of children to gambling advertising. Considering this matter in making determinations about exemptions is similar to:
- allowances for online services that restrict access to otherwise prohibited material under Schedule 7 to the BSA
- the exception in the broadcasting code for subscription narrowcasting services that are intended for adults-only audiences with technical age-based access restrictions.
The ACMA does not intend to be prescriptive about the nature of the access-restriction system that a service may provide, as we recognise that it is important that service providers have the scope to implement a range of effective and platform-appropriate methods to restrict access. Moreover, service providers need to be able to take advantage of developments in the technology for age verification. However, the following provides guidance on the types of minimum features that a service’s access-restriction system should have in place:
- the system provides the prospective end-user with information about how a parent or guardian may control access to the content by persons under 18 years of age
- the system requires a prospective user to apply for access either in writing, in electronic form or orally. This means that a prospective user must take proactive steps to initiate the service (that is, ‘opt-in’)
- the prospective user is required to provide a declaration, in writing or in electronic form, that they are at least 18 years or over. Upon receipt of the declaration, the online service provider can demonstrate that it has in place arrangements where it makes (or will make) reasonable efforts to confirm that the end user is at least 18 years or over. In determining what ‘reasonable efforts may be required when confirming age, consideration should be given to the type of service, the target audience of the service, as well as whether additional functionality, such as parental controls are employed. For example, reasonable efforts may be established by transaction type—use of a credit card in the name of the prospective user where content is fee-based, for instance. Other reasonable steps might link the application process to an already-validated age-restricted platform, allow provision of other identity-related information, or allow applicants to use a token generated during another age-confirmation process
- where an end user may access the system more than once, the user is provided with a Personal Identification Number (PIN) or other means of limiting access to the content, which enables the access-control system to verify that the applicant has:
- previously applied for access and provided a declaration
- previously been provided with the warning and safety information
- previously met the confirmation of age requirements.
What are the effects of an individual exemption determination?
An exemption determination exempts an online content service from meeting some or all of the Online Rules. The exemption determination may be unconditional or may be subject to certain conditions that will be set out in the determination.
Only what is listed in the exemption determination will be exempt and only the service listed on the exemption determination is exempt. If the content provider expands to any other streaming service, a separate exemption will need to be requested. We will publish a list of current exemption determinations on our website.
How do I apply for an individual exemption determination?
Individual online content service providers may lodge requests for exemption determinations with the ACMA.
When will the ACMA make a decision on a request for an exemption?
The ACMA will use its best endeavours make a decision on whether to make an individual exemption determination within 90 days after receiving an application for the determination.
How long does an individual exemption determination last for?
The exemption determination will set out the term of the determination. The ACMA will take a number of factors into consideration when deciding the period of an exemption.
Does an individual exemption determination come with any obligations or conditions?
An exemption may be conditional or unconditional. For example, ACMA may specify conditions that exemptions for particular services or providers are subject to conditions relating to changes in the ownership or control of those services.