Today I would like to speak about existing and potential future content regulation, and our approach in Australia.
Content delivery in today’s world offers both opportunities and challenges for businesses, consumers and regulators.
While advances in technology bring opportunities for the creation and distribution of content, there are challenges for ensuring regulation is fit-for-purpose in this new environment.
Australians have earned a reputation for being early adopters of each new wave of communication innovations.
Our latest figures show that nine out of 10 households are connected to the internet, eight in 10 Australians own a smartphone and data downloads have increased by 43% over a 12-month period.
One of the functions of our communications networks is to deliver content. These networks continue to grow, and consumers expect them to be robust, always-available wherever and whenever they want, at an affordable cost, and with ever increasing utility.
Shifts in technologies are disruptive for businesses and for individuals, but they are also disruptive and challenging for good policy and regulation.
This is leading to a re-think of how we as regulators can provide the benefits and protections demanded by our local consumers.
So how is Australia approaching content regulation? I will talk about three areas:
- online gambling and advertising
- online behaviours for example bullying
- online platforms, which aggregate content.
The Australian Communications and Media Authority’s remit has traditionally been divided into conventional and siloed communication industries. We regulate broadcasting, telecommunications, and spectrum. Over time, these responsibilities have been extended into specific online areas where there has been growing community demand for regulation, for example, online gambling and gaming, unsolicited communications including spam, online bullying on social media and removal of highly sexualised content.
A recent government review of the ACMA specifically looked at the disrupted landscape and recommended that in a converged world, we should shift our regulatory framework away from industry silos to the layers of; infrastructure, transport, devices, content and applications.
This is in line with increased focus on whether content, regardless of how it is created, distributed or consumed, should be subject to the same standards and regulations.
And now the rapid growth, unparalleled reach, power and influence of digital aggregators like Google and Facebook, are raising questions about the appropriate stance for governments and their regulators in relation to the content they distribute and rely upon for their revenue.
There is considerable concern in Australia about problem gambling and gaming.
This has led to a suite of regulations at federal, state and territory level that impact industry in both the physical and online world.
Public concern over the particular impact of online gambling on Australian society prompted the Federal Government to take an active role in this area at the beginning of this century.
The rapid adoption of new communications technologies by both consumers and the gambling industry has significantly increased the ability of the industry to reach gamblers.
The Federal Parliament has prohibited certain online gambling services from being provided or advertised to Australians. The aim is to reduce the scope for harm to problem gamblers or those at risk.
The prohibited gambling services are essentially online casino-style games, instant lotteries and services that provide live or ‘in-play betting on sports events.
A recent review of the sector has given the ACMA greater ability to enforce prohibitions on illegal online gambling services, with new civil penalties. They are substantial at nearly eight million dollars per day for corporations.
The ACMA has other enforcement and disruption tools available including applying to the Federal Court of Australia for an injunction and being able to refer directors of offending companies to our border protection agencies for inclusion on the Movement Alert List. Being on the list means that entry to Australia is likely to be refused.
Clearly, regulation of this sector presents a particular logistical and enforcement challenge, given the majority of online gambling services are based offshore, operate across borders and often involve complex corporate structures.
Recognising this, we are using a toolbox of strategies.
We have concentrated on education, raising awareness of our gambling laws and our role in enforcing them. We’ve made progress in changing the international perception of Australia’s online gambling market, from a grey or ambiguous market, to one where laws are clear and actively enforced.
We’ve been targeting key stakeholders who are involved in providing a gambling service—not just the gambling operators themselves. We ‘ve focused on third-party suppliers such as software providers and payment processors, which has led to a number of third-party suppliers restricting their services to Australians.
We’ve built ties with foreign regulators facing the same challenges and have received valuable support through regulators advising their licensees about the regulatory landscape in Australia and lending their weight to our enforcement action.
Our approach has seen a number of illegal gambling services withdrawing from the Australian market. Over the last 18 months, we have seen 16 of the most popular offshore wagering and 31 of the most popular gaming sites shut down to Australian gamblers—and this trend is continuing. While these strategies are delivering results, we will not hesitate to use our enforcement powers going forward.
Another example of action or regulation that addresses community concerns about online content, is the ACMA’s rules about online advertisements for gambling companies and services.
These rules respond to strong community views that children should not be exposed to gambling advertising while they’re watching coverage of live sport. There’s an expectation that the same rules should apply, regardless of whether sport is being watched via a traditional broadcast, or via on online stream.
Under self-regulatory codes of practice, there are restrictions on gambling advertising during live sport broadcasts on TV and on radio. And these restrictions have now been mirrored for online streaming of live sport.
Gambling ads are not allowed to be shown during live sport between 5am and 8.30pm, creating a safe zone for children and families to watch live sport, across all platforms.
In addition to jurisdictional challenges arising from overseas online entities, there are also practical complexities with applying a single set of rules to all online streaming.
We acknowledge this and are taking the approach that ultimately, any provider of the content to end-users is responsible. We’re operating on the basis that, in general, providers have sufficient control in restricting gambling advertising on their websites. Where there are a number of entities involved in providing content to end-users, we will take a reasonable approach in assessing the responsibility of different parties.
The new online rules come into effect at the end of September.
Responding to community concern about online safety, in 2015 the Australian Government appointed a Children’s e-Safety Commissioner responsible for helping children to have safer, more positive experiences online.
That specifically grew out of concern about serious cyberbullying of children and the desire to get material removed from online, and in particular from social media sites.
The Commissioner operates a complaints service for serious cyberbullying and working closely with social media companies, has set up a scheme for the removal of material targeted at Australian children.
The eSafety Commissioner’s role has expanded beyond children, to also identify and remove illegal online content targeting women, the elderly and the population more broadly. The Office of the eSafety Commissioner has a strong educational role to assist Australians about online safety and how to protect their information online.
The Commissioner has recently been given the responsibility of tackling image-based abuse. Where intimate images or videos have been shared online without the consent of the person in the images, the Office of the eSafety Commissioner is helping people to get the material removed. In some cases, it is able to take civil action against the sharer.
Online platforms inquiry
As is evident from these examples, steps to regulate online content are not new in Australia.
While some laws and regulation are unique to the online world, many laws, like defamation and anti-terrorism are applicable regardless of the delivery platform.
To date enforcement attention has largely been focused on holding the content creators themselves responsible for their content when it is distributed online. Clearly this is very difficult with user generated content and where ownership can’t be traced.
But increasingly, law makers and regulators are having to ask the question; are the existing enforcement mechanisms working effectively for creators and consumers, regardless of how the content is distributed? This is a particularly relevant for copyright and defamation laws.
Worldwide, we’re increasingly seeing a spotlight on the role and responsibility of digital platforms sometimes referred to as the FAANGs, which aggregate content.
More and more, the question is; to what extent should aggregator platforms bear responsibility for content and behaviour on their platforms? This is in part framed by business models relying on monetizing the curation of content for their users.
So policy makers focus is moving to what responsibility the aggregator platforms owe their users. For example, what is their responsibility to users for the data they are collecting from them?
To ensure there is trust in digital communications, should policy makers and regulators step in to ensure accountability? Can it be left to the platforms?
There is no simple, nor single answer to these questions. Australia is not immune from the ongoing debate.
Our competition regulator, the Australian Competition and Consumer Commission, at the direction of the federal government, is currently more than six months into a wide-ranging inquiry into digital aggregator platforms.
The review is looking at the impact the platforms are having on competition and, in particular, the supply of news and journalistic content and the implications for media content creators, advertisers and consumers.
The ACCC has indicated that consistent with concerns in the EU, they are looking at how much consumers understand about how their personal data is being collected and how this information is being used.
The ACCC has also indicated it’s looking at how the platforms use algorithms to choose how they deliver content to their users.
The Commission has been taking submissions and holding public and stakeholder forums. We’re a way off knowing the outcome of the review, but it’s proving to be an interesting conversation.
The interim report is due to be released by the end of the year, with the final report in June next year.
The way content is created, distributed and consumed may be changing, but one thing remains the same—consumers will continue to demand more and more quality content.
And audiences will expect that content will conform with some form of community standards.
This is challenging our traditional regulatory models.
As regulators we need to be flexible enough to make sure our systems adapt as market and consumer-needs evolve.
We need to look outwards to remain informed about global markets and consumer trends and engage with international partners so that we can learn about and share solutions to common problems.
And while it’s important to regulate the emerging harms and market inefficiencies, we must not overreact. We ought not lose sight of the need to support innovation and industry.
This forum has been a great opportunity to learn about the approaches we are taking to address the challenges of today and tomorrow.
I look forward to the panel session to come.