Google Australia Level 18, Tower 1 Darling Park 201 Sussex Street Sydney NSW 2000
Tel: 02 9374-4000 Fax: 02 9374-4001 www.google.com.au
Google submits that where a content service:
principally makes available content that is contributed by persons other than the content host or (if a different person to the content host) the provider of the content service, and
the content service does not predominantly consist of content that is prohibited content or potentially prohibited content,
then a restricted access system in relation to particular R18+ content that is the subject of a take-down notice (that is, in a type B remedial situation, such as under clause 47(7)) would be required to have the same characteristics as specified above in relation to MA15+ content.
In relation to any other content service that makes available R18+ content, a restricted access system in relation to particular R18+ content that is the subject of a take-down notice would be required to comply with requirements broadly equivalent to the 1999 Declaration, namely requirements that:
a suitable form of personally identifying information (e.g. driver’s licence or credit card) is provided by an access seeker before an access key is issued;
a risk analysis has been conducted by the access provider that determines that the forms of personally identifying information that are accepted by the access provider are reasonably likely to be valid and to have been provided by the person identified in the information provided;
the access control system is capable of verifying or validating the information so provided.
Google considers that the above proposal would be more workable than the scheme currently proposed in the draft Declaration, and balances the need to protect children from unsuitable content on the internet with ensuring that this protection does not create undue financial, technical and administrative burdens on industry. Further, the above proposal would not jeopardize the user experience that has seen consumers so readily embrace user generated content sites for uploading and accessing benign content, while ensuring that any higher level content is flagged when identified as such and appropriately access controlled.
Alignment between the draft RAS Declaration and Schedule 7
Google submits that the drafting of draft RAS Declaration is inconsistent with the legislative framework established by the Schedule 7 as it has the effect of regulating content which is not regulated by Schedule 7.
As noted in ACMA’s consultation paper, MA15+ content (whether classified or potentially classifiable as MA15+) is only required to be subject to a restricted access system in the circumstances set out in clauses 20(1)(c) and (d) of Schedule 7 (and where a complaint has been made in relation to that content pursuant to Part 3 of Schedule 7). In the consultation paper this is referred to as ‘covered MA15+ content’.
In the case of content services delivered over the internet, this definition generally refers to an audio-visual content service (other than a news or current affairs service) which is provided on a payment of a fee (i.e. commercial audio-visual content).