Federal Government Introduces Legislation to Control Online Gambling Content

The Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 (Cth) (the Bill) was introduced into the Senate on 6 December 2017 by Senator McGrath, the Assistant Minister to the Prime Minister, and has reached second reading stage before being referred to the Senate Standing Committees on Environment and Communications on 7 December 2017. The intent of the Bill is to establish a legislative framework that can be used to apply gambling promotions restrictions introduced by the government's media reform package to online content services.

The Bill is part of the government's "Broadcast and Content Reform Package" (the Package) which includes reforms intended to:

• improve the sustainability of Australia’s free-to-air broadcasting sector, 
• support the creation of high quality Australian content, and 
• modernise broadcasting and content regulation. 

The Package also includes community safeguards; namely, additional restrictions on gambling promotions during live coverage of sporting events provided on broadcast, subscription and online platforms. These restrictions will seek to prohibit gambling promotions being aired from five minutes before the scheduled start of the sporting event, until five minutes after the conclusion of the sporting event, where the event occurs between the hours of 5:00am and 8:30pm. The Bill is intended to establish a legislative framework that can be used to apply the proposed gambling promotions restrictions to "online content services".

The Bill in Detail

The government intends to apply the new gambling promotions restrictions to broadcasting services that are regulated under the Broadcasting Services Act 1992 (Cth) (the BSA) by making amendments to relevant industry codes of practice. However, the Bill is a a back up measure, the government says, that will also establish a regulatory mechanism that can be used to apply the new gambling promotions restrictions to broadcasting services should negotiations to amend industry codes of practice fail. 
The Bill will specifically:

• create a regulatory framework, namely a set of online content service provider rules, which can be used by the Australian Communications and Media Authority (ACMA) to impose gambling promotions restrictions on online content service providers; and
• provide ACMA with the power to, when directed by the Minister, determine program standards about gambling promotional content which apply to certain broadcasters and subscription providers.

Key Amendments

The Bill proposes the addition of a Schedule 8 to the BSA to provide an enabling framework that will allow ACMA to make rules setting out the gambling promotions restrictions that apply to online content service providers. The online content service provider rules to be created under the proposed  Schedule will be a legislative instrument for the purposes of the Legislation Act 2003 (Cth), and as such will be subject to parliamentary scrutiny and disallowance.
 
The new Schedule 8 defines "online content service provider" as a person who provides an online content service, and an online content service is a service that: 

• delivers, or allows end-users to access, content using an internet carriage service; 
• is provided to the public; and, 
• has a geographical link to Australia. 

A service will have a geographical link to Australia if:

• an ordinary reasonable person would conclude that: the service is targeted at individuals who are physically present in Australia; or, 
• any of the content provided on the service is likely to appeal to the public, or a section of the public, in Australia.

 Rules determined under Schedule 8 will not apply to "exempt online simulcast services" as defined in the Schedule. A service will be an exempt online simulcast service where it does no more than provide a stream of content that is identical (disregarding differences due to technical characteristics and watermarks) to that provided on one of the listed categories of broadcasting services, and the stream of content is provided simultaneously or almost simultaneously with the content provided on the broadcast service. 

The making of service provider rules under Schedule 8 will fall to ACMA will be for or in relation to prohibiting or regulating "gambling promotional content" provided on online content services "in conjunction with" "live" "coverage" of a "sporting event". These terms  are all defined in Schedule 8.

ACMA will have the power to make exemptions to the rules created under Schedule 8, to recognise, the government says, that there are a wide variety of online content services, with different business models and technical characteristics, and that ". . . the online content service provider rules will not need to regulate all online content services." Schedule 8 will empower ACMA to, in writing, determine that a specific online content service, or a specific online content service provider, is exempt from the online content service provider rules. Schedule 8 sets out criteria the ACMA must have regard to when making such an exemption decision and a refusal by ACMA to make a decision, as well as a decision to vary or revoke, an individual exemption determination will, under the changes proposed by the Bill, be subject to a merits review by the Administrative Appeals Tribunal.  

In terms of compliance and enforcement the investigations of potential breaches of any online content service provider rules ". . . will be largely complaints driven". The proposed online content service provider rules may also ". . . require relevant online content service providers to keep records that will allow the ACMA to ascertain whether they have been complying with the rules".

Penalties are dealt with in Part 5 of new Schedule 8, in conjunction with existing BSA provisions. In particular:

• if an online content service provider contravenes the online content service provider rules, the provider may become liable to pay a civil   penalty;
• the ACMA may give a remedial direction to an online content service provider if the provider contravenes the online content service   provider rules; and
• infringement notices may also be issued for contraventions of online content service provider rules, as an alternative to the institution   of court proceedings.

Next Steps for the Bill

As indicated above the Bill is in the Senate at least until 2018 when Federal Parliament next sits, as well on 7 December 2017 the Bill was referred to the Senate Standing Committees on Environment and Communications and that Committee is currently in the position of accepting submissions. Submissions to the Committee close on 12 January 2018, with the Committee expected to report by 12 February 2018.  To make a submission go here. 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 and 2nd Reading Speech and Exp Memo as reported in the TimeBase LawOne Service

Senate Standing Committees on Environment and Communications (Home Page)

Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 (Committee Page for Bill)