This article was written by Luke Hawthorne and Katrina Rathie.
The Australian Government has recently published its response to the Australian Competition and Consumer Commission's (ACCC) Digital Platforms Inquiry Report. In its response, the Government requested the Australian Communications and Media Authority (ACMA) and its screen funding body, Screen Australia, examine how to “best support Australian stories on our screens in a modern, multi-platform environment”. As part of that examination, those bodies are due to report on:
- developing a uniform classification framework across all media platforms;
- the extent of Australian content obligations on free-to-air television broadcasters (including drama and children’s content), and whether there should be Australian content obligations on subscription video-on-demand services; and
- other aspects of the policy framework to support Australian film and television content.
It remains unclear what options will be proposed by the ACMA and Screen Australia, although industry commentary suggests a paper will be released by the end of February.
The ACCC and members of Australia’s screen industry have argued that if businesses are competing with the same audiences—irrespective of the form and technology of the content delivery—then regulatory obligations should be equally applied. The counterargument made by many digital service providers is that content quotas and related regulations designed for older and more established technologies, such as broadcast TV, which have inherent limitations around the way that they make content available, are not relevant (or, at least, cannot easily be applied) to newer digital services.
What are screen content obligations?
Evidently, the Australian Government is seriously considering whether to require streaming video providers and other digital media companies to place more Australian-produced content on their platforms as part of its response to the ACCC’s Digital Platforms Inquiry.
Under the Broadcasting Services Act 1992, 55 per cent of content that appears on commercial television broadcasting services during prime time hours (6am to midnight) must be “Australian” (i.e. produced under the creative control of Australians). Further genre-specific program quotas regarding Australian drama, documentary and children’s programs apply under the Broadcasting Services (Australian Content) Standard 2016 (the Content Standard). These regulatory measures are designed to ensure a minimum amount of Australian content is produced and broadcast on commercial television in Australia. As set out in the explanatory memorandum:
The rationale for [the Content Standard was] that it is widely accepted that television is a powerful medium with the potential to influence public opinion, and that television has a role to play in promoting Australians’ cultural identity.
However, clearly the function that broadcast television is playing in Australian society has been impacted in recent years by the advent of new types of digital services, which offer access to content in different ways. Existing screen content quotas, which assume they will be applied to a linear programming schedule, are not easily transposed to streaming and on-demand content services. Furthermore, arguably, such quotas are less critical for those services, as they provide users with greater choice over the content they access and when they access it. Whatever your view, the extension of screen content obligations to these new services will certainly require a significant change in the business practice of digital media providers in Australia.
On 29 January 2020, the Canadian Broadcasting and Telecommunications Legislative Review Panel’s report released its final report on modernising the legislation governing Canada’s communications sector, Canada's communications future: Time to act.
The report makes over 29 recommendations, including that the Canadian Government introduce new legislation supporting the creation, production and discoverability of Canadian content and obliging online streaming companies to contribute to Canadian content.
It is likely that Australian regulators will pay close attention to the Canadian experience.
What to do now
For media providers who are not currently subject to the Content Standard, thought should be given to how legislative requirements for Australian content quotas might affect their businesses—including by conducting an audit of Australian production already available on their platforms, or in their development pipeline.
Developments internationally, including in Canada, should be closely examined as comparable reference point.
 While the Content Standard does not apply to the publicly-funded Australian Broadcasting Corporation or the Special Broadcasting Service, it has been argued their legislated Charters require them to produce such content.
 Broadcasting Services Bill 1992 (Cth), Explanatory Memorandum, Current revised, p. 65.