Alston Determination defining broadcasting services extended

Analysis from Steve Ahern

Broadcasting and the internet have come a long way since Communications Minister Richard Alston (pictured) made a determination in July 2000, that television or radio programs using the Internet  “do not fall within the definition of a broadcasting service.”
That determination allowed licenced broadcasters to retain their special status in areas such as copyright and defamation, but also limited a range of activities through regulations and codes of practice.
That determination has today been renewed until such time as there is a further review of the Act, after a consultation process leading up to the 1st October 2019 sunset date.
Back in July 2000, nobody foresaw the explosion of audio and video content that was coming, and most people assumed that audio streaming and video file hosting would be the end game.
Nineteen years later there are OTT (Over the Top) video streaming services such as Netflix, audio streaming services such as Spotify, Pandora and iTunes, as well podcasts. We have also gained social media platforms that have introduced new methods of debate and discussion that were previously the preserve of broadcasters and newspaper opinion columns. With the rise of social media has come the spread of fake news and the inability of governments to regulate conversations on ‘platforms’ in the same way as they can for ‘broadcasters.’
If podcasters were ‘broadcasters,’ as defined by the Broadcasting Services Act, they would be bound by the codes relating to current affairs, decency, election coverage and news. But they are not.
If music streaming services were ‘broadcasters’ they would be entitled to pay far less royalties than they currently do, but they would also have quotas for Australian content. If Netflix was a broadcaster it would not be able to show R and X rated material until the late night period in whatever timezone the content is consumed and it would also be required to deliver an Australian content quota.
If facebook, twitter, youtube and other social media platforms were broadcasters, their video content would need to fulfill protection requirements for children and adhere to children’s timeslots, and audio music content would need to deliver a certain percentage of Australian music to consumers.
A lot has changed since July 2000.
At the time it was introduced, the legislation was unclear and provided a “lack of legal certainty.”  It said:

The term “broadcasting service” is defined in subsection 6(1) of the Act to mean:
“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.”

So the Minister clarified the situation with a determination:

The purpose of the accompanying determination under paragraph (c) of the definition of “broadcasting service” in subsection 6(1) of the Act is to make it clear that audio and video streaming over the Internet are not broadcasting services.

That determination has been in place ever since, and has now been extended for “three years from date of registration of the remade determination.”
Since it was first introduced, technological advances have made the old laws uneven in the new media landscape, but, given that the determination is only one small part of a much more complex 2019 media environment, it makes sense for it not to be changed in isolation, but to be thought about as part of the much bigger ongoing process of media/platform/socialmedia regulatory review.
But don’t leave it for too long because there are many pressing issues to be dealt with in the new media landscape, including media freedom and responsible self-regulation or co-regulation of social media by platforms.

Communications Minister Paul Fletcher says:  “The issue of whether livestreamed TV and radio services delivered over the internet should be regulated under the Broadcasting Services Act needs to be considered under any harmonisation of media regulation. It therefore makes sense to extend the Alston Determination for a finite period to allow for a thorough consideration of those issues.”
Commenting on the renewal, CRA chief executive officer Joan Warner said: “This is a sensible decision that provides certainty for broadcasters, while allowing the Federal Government time to consider a wider review of the media landscape.”

In related developments in the US, the US Federal Trade Commission has imposed a historic fine of US$170 million (A$247 million) on YouTube for allegedly tracking children’s viewing without parental consent in order to deliver targeted advertising. This practice of tracking children’s viewing history violates the US Children’s Online Privacy Protection Act. Full report in The Conversation.


About the Author

Steve is the founding editor of this website.

He is a former broadcaster, programmer, senior executive and trainer who now runs his own company Ahern Media & Training Pty Ltd.

He is a regular writer and speaker about trends in media. More info here.





Tags: | | |