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ACMA relevantly has a number of discretions:
to determine what means of limiting access is appropriate for a particular category of content. PIN based access keys are an example of a possible access control system. A password or cookie-based system, with or without deployment of a filter, would also be a means of limiting access that could satisfy the definition of ‘restricted access system’ in Schedule 7;
to determine and state (whether at the level of principle or with specificity) the steps that are to be taken by a provider before an access seeker is granted access rights in relation to a particular category of content;
to differentiate in relation to each of the above between R18+ content and MA15+ content (as an discretion expressly conferred on ACMA by clause 14(2) of Schedule 7);
to differentiate in respect of sub-categories of content that otherwise is within a particular classification category (pursuant to ACMA’s general discretions under clause 14).
ACMA’s discretions therefore include an ability to differentiate between different types of content or hosting services. For example, a restricted-access system in relation to a mobile premium service may be different to an access-control system in relation to an Internet content service.
ACMA may also differentiate between different forms of Internet content services and designated content/hosting services in the course of fulfilling its obligation to have regard to the child protection objectives as stated in clause 14(4) of Schedule 7 while also giving effect to the regulatory policy as now stated in Section 4(3AA) of the BSA. The regulatory policy is to ensure that designated content/hosting services are regulated in a manner that:
enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on the providers of those services; and
will readily accommodate technological change; and
the development of communications technologies and their applications; and
the provision of services made practicable by those technologies to the Australian community.”
Consistent with this regulatory policy due consideration should to be given to three key attributes of Internet services.
First, many Internet services (such as YouTube) are made available on a global basis and by global providers. A key feature of their appeal is near instantaneous global access to globally available content.
Second, many Internet services (including YouTube) consist of large volumes of content placed on the site by individual users, rather than the service provider (many