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In contrast, clause 6 of the Declaration states:
“A restricted access system must not provide access to MA 15+ content to a person …” (emphasis added).
‘MA15+ content’ is defined in the Declaration to have the same meaning as in Schedule 7 (clause 3(2)). Clause 15(2) of Schedule 7 defines ‘MA15+ content’ generically by reference to its classification status (or likely classification status), rather than by reference to the exclusions for non-commercial and non-mobile MA15+ content contained in clause 20 of Schedule 7.
Google submits that the current drafting of clause 6 may (inadvertently) have the effect of expanding the operation of the content services regime to all MA15+ content, even content not specifically captured by Schedule 7. Google submits that the Declaration should not operate to impose additional obligations not contained in Schedule 7, and clause 6 should be amended to reflect the legislative scheme (i.e. to only refer to ‘covered MA15+ content’ as defined in the consultation paper).
In addition, Google is concerned that an unintended consequence of the drafting may be to create confusion as to whether the Declaration purports to extend the regulation to conduct which is not regulated by Schedule 7.
As ACMA would be aware, Schedule 7 does not create a per se offence of provision of prohibited content, or potentially prohibited content, where access to the content is not subject to a restricted access system. Rather, Schedule 7 imposes a requirement (with related offences for breach) to respond to notices issued by ACMA in relation to a particular piece of prohibited/potentially prohibited content by either taking down the relevant content or ensuring that it is placed behind a designated access control system.
In contrast, clause 6 of the Declaration may be read ‘on its face’ to prohibit per se the provision of R18+ and MA15+ content without that content being subject to an access control system, thereby creating obligations above those contained in Schedule 7. Google submits that ACMA may wish to consider amending the Declaration to avoid any potential confusion, either by re-drafting clause 6 to more closely reflect the legislative provisions, or to insert a note after clause 6 to clarify that the Declaration does not itself impose requirements in relation to RAS that go beyond the requirements of Schedule 7.
Clause 6 – access key requirements
Clause 6 of the Declaration provides that a person must not provide access to R18+ and M15+ content unless the person has entered an appropriate access key.
Google has four main concerns with the current drafting of clause 6:
This requirement does not reflect how user generated content websites typically work today. Typically, if a person wishes to access a piece of content that has been ‘flagged’ as inappropriate for minors, the user is initially required to identify that she or he is old enough to access that content. After the person has been verified as 18 or older, subsequent pieces of age-limited content may generally be accessed without further verification of that user. In other words, once the requirements as to age verification (whether by declaration or otherwise) are