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Australian reality television show Big Brother has sparked a debate on the regulation of Internet content. Earlier this month (see here and here), an alleged case of sexual assault caused two contestants to be taken off the reality television show. (See “2006 sexual assault controversy” on Wikipedia’s Big Brother entry for further details.) While the behaviour was not broadcast on television, it was shown live on the show’s Internet feed, provoking outrage from politicians, and causing Communications Minister Senator Helen Coonan to issue media releases addressing the incident (2 July and 3 July).

I’m not going to weigh in on the appropriateness of content broadcast on reality shows or on the Internet, or the ethics of such shows generally, nor will I discuss whether certain conduct actually occurred on the Big Brother set. Plenty of that is being offered, from Opposition Senator Stephen Conroy (3 July and 5 July) to Germaine Greer. Instead, I’m going to consider why the content shown on the Big Brother website did not break any laws, and discuss the contemplated regulatory response.

The legislation

Australian regulation of Internet content is currently less restrictive than regulation of what is known as “free to air” television broadcasting (meaning not pay/subscription/cable television). As a result, some content that is not allowed on television is permitted via streaming video on the Internet.

The Australian Media & Communications Authority has advised Senator Coonan that since the offensive conduct was shown via the Internet, the rules applying free to air broadcasting content under the Broadcasting Services Act 1992 (Cth) do not apply. In addition, Schedule 5 of that Act, which regulates Internet content with respect to the standards set by the National Classification Code, does not apply to “live” streamed content.

To understand this conclusion, it is necessary to look at the text of the legislation itself to see how live streamed content is treated. Such content is clearly not considered to be “Internet content” in the terms of the Act. According to clause 3 of Schedule 5, Internet content is defined as:

…information that:

(a) is kept on a data storage device; and
(b) is accessed, or available for access, using an Internet carriage service;
but does not include:
(c) ordinary electronic mail; or
(d) information that is transmitted in the form of a broadcasting service.

This definition specifically captures “stored” data only. At the second reading in the Senate of the Broadcasting Services Amendment (Online Services) Bill 1999 (see the text, at its third reading), this exclusion was referred to explicitly, although the reason for doing so was not explained:

Ephemeral content, such as newsgroups, chat rooms and real time services such as streaming video and audio, is also excluded, except to the extent that they are stored or archived, given that it would not be possible to classify “live” material.

As a result, neither communications between individuals, whether through online chat programs, chat rooms, or VoIP, nor live streaming video content is covered by the rules governing Internet content in Schedule 5 of the Act.

Neither, it seems, is live streamed video captured by the definition of a “broadcasting service”–which means that the rules applying to television broadcasts do not regulate the offending content either. (Broadcasting services are specifically excluded from the definition of Internet content, and so are governed by the main body of the Act and not the Internet content rules contained in Schedule 5.) A broadcasting service is defined at section 6 of the Act as:

…a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or
(c) a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.

Perhaps the Big Brother feed was not captured simply because it was shown over the Internet and not television, and thus was not a television or radio “program” as required. (The live stream is unlikely to have fallen into exception (b) above, as the content was shown once and was not available on demand at any time by viewers. As described in the Explanatory Memorandum accompanying the introduction of this rule, if the service provider determines the time and place of the viewing, the service is not “point to point” and the concept of a “broadcast service” does not apply.)

In short, since the content was shown live on the Internet, neither the regulations applying to Internet content nor those applying to free to air television programs apply. So while Network Ten would have broken the law if the footage was screened on television, it did not do so by showing the conduct as a live stream on the Internet.

Where to from here?

It is important to note that the stated aims of the Broadcasting Services Act are not only to ensure diversity, quality, and Australian content in broadcasting services, but also include the protection of adults and children from offensive content. In short, the Act in requires that certain community standards are met with respect to content. And in contrast to jurisdictions such as the United States, these standards are not coupled with potentially conflicting concerns for preserving freedom of speech, as no such right is explicitly guaranteed in the Australian Constitution (although many believe that such a freedom is an “implied” legal right).

This is not to say that the Australian government engages in censorship for the sake of community values. But it is important to note that the government in this country takes an active role in regulating content, where in some other jurisdictions such regulation is more of a private matter–meaning that, within certain limits, individuals self-regulate what they and their families view. (Of course, an important exception is the regulation of child pornography.)

In this light, it is interesting to consider some of the proposed actions recently announced by Senator Coonan:

–the creation of content regulation for all non-broadcasting commercial content services, including live services (as stated in her speech of 14 June 2006); and
–a review by ACMA of whether the current free to air television codes provide sufficient “community safeguards in relation to reality TV programming”.

It seems that the regulation of online content may ultimately have little difference with the regulation of broadcast television. From the statements available to date, it appears that what will be regulated is online television-like content, and not private communications, such as email, VoIP, and chat programs. (These changes may have some real implications for the regulation of Internet television services, but that is a subject for another post.)

While the announcement has caused some to make comments welcoming the “nanny state”, on the other hand some (the Prime Minister among them) have called upon Network Ten would take the opportunity to cancel Big Brother. I will certainly be following developments to see where we end up.