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THE ADAPTIVE MOMENT:

A FRESH APPROACH TO CONVERGENT MEDIA IN AUSTRALIA

Associate Professor Kate Crawford, Journalism and Media Research Centre, UNSW Professor Catharine Lumby, Journalism and Media Research Centre, UNSW

AUTHOR DETAILS Associate Professor Kate Crawford is the Deputy Director at the Journalism and Media Research Centre at the University of New South Wales. She is an internationally recognised researcher of internet technologies, and recently conducted Australia’s largest study of mobile and social media use by 18-30 year olds, funded by the Australian Research Council. Catharine Lumby is Professor of Journalism and Director at the Journalism and Media Research Centre at the University of New South Wales. She is the author of seven books and numerous book chapters and journal articles, and is an international expert on media and gender studies. She has been awarded five Australian Research Council grants and was a member of the Advertising Standards Board.

ACKNOWLEDGEMENTS James West and Hannah Withers provided invaluable research assistance in the preparation of this report and we would like to thank them for their careful work. We also thank Peter Coroneos, Chief Executive of the Internet Industry Association, Peter Leonard, a partner at Gilbert + Tobin, David Simon former member of the Classification Board and Dr Peter Chen of the University of Sydney for contributing their expert advice in the preparation of this report. We also acknowledge Google Australia who provided a contribution towards the research funding for this report.

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TABLE OF CONTENTS AUTHOR DETAILS

1

ACKNOWLEDGEMENTS

1

TABLE OF CONTENTS

2

EXECUTIVE SUMMARY

4

INTRODUCTION

8

SECTION 1: THE STATE OF PLAY

10

1.1 The Rise of Convergent Media

10

1.2 More, Faster: Australia Over The Next Five Years

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1.3 Regulating The Convergent Environment: The Current Picture

13

Regulatory Inconsistencies

14

Case Study 1: Facebook and the Queensland Government

15

Case Study 2: Games, Online And Offline

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Conclusion

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SECTION 2: THE INTERNATIONAL ARENA

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2.1. International Comparisons

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2.1.1. Japan’s Safer Internet Program

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Deregulation & the Need For a Unifying Act

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Regulating Content

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Aims of the Japan Safer Internet Program

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Content Regulation = Self-Regulation

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Poster and Slogan Competition: Case Study

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Response From Industry: NTT DoCoMo

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2.1.2. New Zealand’s Digital Strategy

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Background

26

Confidence: An Integrated Response

27

Case Study: Hector’s World

27

Content and Access Regulation: An Opt-in filter

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2.1.3. Digital Britain

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Digital Britain & Digital Economy Bill 2009-2010

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UK Digital Content Self-Regulation

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Other Internet Content Regulation

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Mobile Content Self-Regulation

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Case Study: Click Clever Click Safe

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2.2. Regional and Transnational Efforts 2.2.1 The European Union The European Union Audiovisual Media Services Directive (AVMSD)

34 34 36

2.2.2. The Internet Governance Forum (IGF)

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2.2.3. The Organisation for Economic Co-operation and Development (OECD)

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Conclusion

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SECTION 3: TOWARDS A NEW POLICY FRAMEWORK

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Introduction

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3.1. Clear Objectives And Guiding Principles

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3.1.1 Who Is Responsible For Managing Convergent Media Content?

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Government

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Industry

41

The End-User

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Which mode of Governance is Preferable?

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3.2. Content & Classification

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3.2.1 Redefining Content

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3.2.2 Rethinking Classification

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3.2.3. Community Standards

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3.3. A Research-Led Approach

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SECTION 4: CONCLUSION

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4.1. Recommendations

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APPENDIX ONE: THE HISTORY OF AUSTRALIA’S REGULATORY ENVIRONMENT

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EXECUTIVE SUMMARY The purpose of this report is to consider the following questions:

environment?

an evolving media ecology? media regulation for television, film, newspapers, radio - to a convergent media environment?

podcasts and YouTube, to mobiles and tablet devices? platforms, and contributing to media policy?

international laws? This report visits these issues in detail through a consideration of the history of online media governance, a comparison of international approaches, a series of case studies that highlight current challenges in managing online content and a consideration of where the regulatory balance should fall between government, industry and user communities. In considering these issues, we acknowledge that the current media environment poses extraordinary new challenges for governments, industry stakeholders and media users. While we canvas a broad range of issues and approaches to managing these challenges, we recognise the complexity of adapting existing regulatory approaches and of ensuring that people are given information and resources to enable them to navigate this new media landscape. In preparing this report we welcome the announcement of the Federal Government’s Convergence Review by the Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy. We present our findings as a research-based contribution to this process and its remit: to take a fresh look at Australia’s existing regulatory frameworks with a view to modernising them.1 The communications sector in Australia now reaches across an unprecedented array of sectors in the private and public spheres. Communications technologies are the backbone of our health, education, government, finance and culture sectors. The information revolution is critical to Australia’s economic competitiveness and ongoing social and cultural development. Yet, Australia’s laws have not kept up with this technological evolution or with the changes in the diverse modes of media production and consumption.

1

http://www.minister.dbcde.gov.au/media/media_releases/2010/115

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Australia is moving away from the legacies of a vertical media environment, in which different networks such as telephone networks and radio networks were regulated and operated for clearly distinct purposes, to a convergent network environment. When we use the term ‘convergence’, it is referring to this collapse of borders between various media silos, where content can easily move horizontally across platforms. In this new horizontal environment, it is critical to pay attention to the different roles played by networks, platforms and content providers. Different regulatory and governance solutions need to be examined in each instance, rather than bundling together old media legislation. At the network layer, we argue, policy makers should focus on ensuring network openness, innovation and user choice. At the platform and content provider layers, government should work with industry and users, including in global fora, to encourage self-regulation while facilitating referral of genuinely disturbing material to national and international government regulatory instruments and agents. Community education about internet use, online security and legal obligations should be a priority in this area. There needs to be ongoing commitment to researching international approaches, emerging tools and community expectations.

Concerns about the production and distribution of harmful or criminal material in the convergent media environment have dominated much of the public debate about new technologies and platforms. This is understandable given that protecting the community, and particularly children, from inappropriate material has been and continues to be a core principle of media regulation and content management. This focus on harmful material, however, has often come at the cost of a broader appreciation of the benefits of the convergent media environment. The influential UK Byron Review2 noted that public policy and regulation that is genuinely and empirically grounded in an ethic of care for children and young people will fail if it relies too heavily on a simplistic block and control strategy. In Australia, the focus of debate on internet filtering has come at a cost of thinking about the wider media environment, leading us to ignore broader issues of care and user participation. In reconceptualising media content management and regulation it is critical to recognise that our networked media era offers unparalleled opportunities for innovation, entrepreneurship and the growth of knowledge, and that it has the potential to extend these opportunities to all Australians. Traditionally, Australian media content regulation has worked in a top down manner. Governments regulate or require media content providers to cooperate with them in co-regulatory or self-regulatory schemes. In this framework everyday media users had only a small capacity for direct input through complaints mechanisms or through the judicial system. This framework was based on a model of media audiences as largely passive bodies of consumers, with little need to interact with content producers or regulatory authorities. In contrast to this model, contemporary media users are not just ‘consumers’ – they are highly active, and are often media producers and distributors. Within social networking services that host extraordinary quantities of data it is users who are the most likely to identify offensive material and to notify the relevant host or government agency. In this report we suggest that it is critical to see government, industry and media users as key stakeholders who must work together in the future governance of media content. By cooperating, the three groups can increase opportunities for the identification of truly harmful material and the enforcement of criminal law. They can share the responsibility of governance of media content in an era where the sheer volume of material outstrips the capacity of any government or corporation to pre-vet all material.

2

Byron Review. 2008. Safer Children in a Digital World. The Report of the Byron Review: Department for Children, Schools and Families, and the Department for Culture, Media and Sport.

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Convergent media governance must take the full spectrum of stakeholders into account from the end-user to the parent, from the school into the wider community, to industry and government. A key plank of this cooperation is the need for government and industry to educate consumers and provide them with resources to work in online communities to identify problematic content and to notify relevant organisations or authorities. Media literacy is vital. Education about opportunities and risks online is a particularly critical component of any strategy that aims to protect children, as well as maximise the potential for innovation and creative engagement. At a global level, it is important that Australia, as a robust democracy, inclusive society and cultural innovator, takes a leading role in furthering international cooperation between industry, governments and media user communities. The convergent media environment describes a globally networked media ecology in which no single national government or industry group can work alone to manage or regulate content. This report explores models for international cooperation, which we argue will be central to future governance schemes. In the convergent media environment, traditional media platforms, content and audiences now coexist with their new media counterparts. It’s an environment marked by an unprecedented diversity of users and usage which spans the spectrum from amateur videos made for friends and family to high-end professional content produced for international consumer markets, all circulating on the same platforms. This diversity does not render the core values that have underpinned Australia’s approach to managing and regulating media content redundant. On the contrary, we argue that it is time to think carefully about how those core values can inform a set of principles and approaches to content management in the 21st century: that we need a fresh and adaptive approach to ensure that we balance the opportunities and complexities posed by the convergent media era. We argue that these ten key principles should underpin a new system of media content regulation in Australia:

1. An adaptive approach. We are part of a rapidly evolving media landscape, where media are not ‘silos’ but are closely intertwined. Our policy frameworks have not kept pace. It is essential that Australia conducts a ‘first principles’ review of media content policy and develops a flexible system. 2. Working together. The regulation and management of convergent media is best done by industry, government and end-users sharing approaches and concerns and acting collaboratively. 3. Recognising layers. In the convergent environment, there are distinct layers: the infrastructure level of the networks, then platforms and content. Governance solutions need to be attuned to the different issues at each level, while keeping the network layer open and interoperable. 4. Rethinking content. Content is not ‘media specific’ but fluidly moving through multiple spaces, being repurposed and recirculated. Frameworks for acceptable content are more effective and have fewer chilling effects than network level filters. 5. The importance of users. Public policy and law must recognise the critical role that user communities now play as participants and creators of online environments as well as in notifying industry and government of offensive content. 6. Consistency. All states and territories should have a uniform approach to the sale, distribution and possession of prohibited or restricted content. 7. A new Classification Scheme. We strongly support the review of the Classification Scheme. It is time for a purpose-built system for a 21st century media environment, relying on comprehensive and empirical research into community standards in relation to media use.

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8. Media literacy. A national plan needs to be developed, based on empirical research, to foster digital literacy. Industry, government and community members should participate in the formulation of a plan, which will include community education about safety and security on the internet. 9. Committing to the big picture. A broad set of national principles need to be developed that support technology neutrality, a commitment to the free flow of information, the protection of vulnerable users, and an innovative digital economy. 10. An international perspective. Australia needs to be an active participant working with other governments and industry within international fora on media governance issues.

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INTRODUCTION The historical principles, relevant to the scope of this report, that have traditionally informed media content regulation in Australia include:

consumers and other users.3

material likely to harm or disturb them.4 information.5

violence, or portrays people in a demeaning manner.6

content.7

content deemed harmful.9

The Productivity Commission’s report on broadcasting contains a clear summary of the values that underpin media content regulation and management in Australia: ‘Important social and cultural objectives of broadcasting policy include ensuring diversity of sources of information and opinion, adequate levels of Australian content and appropriate program standards. Freedom of expression is also important and should be added to the objectives of the Broadcasting Services Act 1992. Diversity of sources of information and opinion is most likely to beserved by diversity in ownership of media companies, and by competition.’ 11 The report also notes that ‘controlling the potentially harmful consequences of media influence must be weighed against the benefits of independent and open media in a democratic society’ and that as new media proliferate and media organisations converge with other businesses, regulatory restrictions on freedom of expression will have an increasingly important place in media law. Media content is currently regulated through a combination of direct regulation (laws, government regulatory bodies and licences), co-regulation (industry-based codes of practice with government approval and potential sanctions) and self-regulation (industry endorsed codes of practice). This model privileges two actors: 3

‘About Communications and Media Regulation’, The Australian Communications and Media Authority, www.acma.gov.au/WEB/STANDARD/pc=PUB_REG_

4

Classification (Publications, Films and Computer Games) Act 1995.

5

See industry codes of practice at The Australian Communications and Media Authority, HTTP://www.acma.gov.au/WEB/STANDARD/pc=IND_REG_CODES_

6

The National Classification Code.

7

See ‘The Future for Local Content? Options for emerging technologies’, 2001, Australian Broadcasting Authority, available at http://www.acma.gov.au/webwr/_assets/

8

Productivity Commission, 2000, Report into Broadcasting, available http://www.pc.gov.au/projects/inquiry/broadcasting/docs/finalreport, viewed 15/4/10.

ABOUT

BCAST

main/lib100068/future_local_cont.pdf, viewed 25/03/11. 9

Ibid.

10

See Productivity Commission, 2000, Report into Broadcasting, available http://www.pc.gov.au/projects/inquiry/broadcasting/docs/finalreport, viewed 15/4/10, pp. 332-333; Robert Albon and Franco Papandrea, ‘Media Regulation in Australia and the Public Interest’, November 1998, Current Issues;

11

Ibid.

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government and industry. It reflects an era in which media consumption was dominated by the production of messages by the few for the many. While media users have historically had some role in media content regulation in Australia through the capacity to notify regulatory agencies or media organisations of their concerns about content, their role in regulation has been limited. In a media environment characterised by the rapid growth of online and mobile media in which media users are often media producers, and where the distinction between these activities is increasingly blurred, the potential role of media users in regulation assumes greater importance than it has ever been historically accorded. It is an era in which the one-to-many model of media content production and distribution has fundamentally and permanently altered. In the space of a decade, our media environment has transformed into one where average Australians actively produce and distribute their own media content through blogs, social networking sites, and videos uploaded to platforms such as Facebook and YouTube. The technological means to produce sophisticated media content have been domesticated and the distribution channels are also growing. We live in a rapidly e...