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Copyright © Media Law International 2017. All Rights Reserved.

Specialist Guide to the

Global Leaders in Media Law Practice

Publishing

What trends are you seeing in your market?

The Publishing Industry has been implementing various mechanisms to attempt to remain up-to-date with technological advancements and to battle these declining revenues.  A major source of revenue for publishers is advertising.  Additionally, most major publishers in Australia, such as News Corporation and Fairfax Media, are implementing paywalls to protect their online multimedia content and publications; paywalls require consumers to purchase digital subscriptions to access protected content.  


Publishers continue to develop this paywall model, with some publishers implementing a “metered paywall” where consumers may only access up to a certain number of articles within a fixed time period (e.g. 5 articles in any 24 hour period) prior to being required to purchase a subscription to view further articles and published content.


List significant publishing cases / transactions over the past year

Duffy v Google Inc [2015] SASC 170

In Duffy v Google Inc, the South Australian Supreme Court handed down a decision confirming the liability of search engine providers for their publication of defamatory search results.


The Court found that notwithstanding the automated nature of Google’s algorithms for generating responses to search requests, as soon as Google received notice of the defamatory material and failed to remove that material within a reasonable time, Google became a secondary publisher of the defamatory material and became liable for damages as a result.


In effect, the decision means that upon being notified that a particular website is considered to be defamatory, a search engine provider which fails to remove the website from its search results within a reasonable period may be held separately liable for defamation every time a searcher accesses material from the search engine.


Roadshow Films Pty Ltd & Ors v iiNet Ltd (2012) 248 CLR 42.

In November 2008, thirty-four film companies commenced proceedings in the Federal Court of Australia against iiNet, which, at the time, was Australia’s third largest internet service provider (“ISP”).  


In a letter to iiNet, the film companies alleged that iiNet had “authorised” the copyright infringements of its users and was therefore itself liable for infringement under Australia’s copyright law.  iiNet declined to take any action in response to the companies’ letter, maintaining that, while it did not endorse or approve the copyright infringements, it was not iiNet’s business to take action on the basis of allegations.


The matter eventually went to the High Court of Australia, which dismissed the film companies’ appeal and held that iiNet was not liable for authorising the copyright infringements of its users.  In determining the liability of iiNet, the High Court considered the three factual matters set out in s. 101(1A) of the Copyright Act 1968 (Cth):


Ultimately, it was held that iiNet had no direct power over its consumers.  Rather, iiNet’s only power was indirect as, through its customer agreements, it could terminate accounts if the internet service had been used for illegal purposes or to infringe another person’s rights.


This decision improves the bargaining position of the ISP Industry in its negotiations with publishers of content (including films, movies, and news articles) in formulating an appropriate legislative or industry-based response to online copyright infringement.


Is there any government-owned media?  If so, how does the government media differ in operation from the private media, if any?

The Special Broadcasting Service (“SBS”) operates under the Special Broadcasting Service Act 1991 (Cth) (“SBS Act”) and has a Board of Directors appointed by the Government. Approximately 80% of the funding to SBS is provided by the Government, with the remainder sourced from SBS’ commercial activities, such as advertising and sponsorship. However, the level of advertising SBS may carry is subject to regulation.


SBS has a special mandate to reflect the multicultural nature of Australia’s society. SBS achieves this mandate through multicultural and multilingual radio and television services.SBS broadcasts three television channels nationally, and also broadcasts a channel dedicated to Australia’s Indigenous Peoples. SBS also operates four radio networks and broadcasts television and radio via the internet.  


SBS is required to develop codes of practice relating to programming matters and to lodge those codes with the Australian Communications and Media Authority (“ACMA”).  Additionally, SBS is accountable to Parliament through annual reporting, corporate plans, financial and performance audits, and appearances before Parliamentary Committees.


What, if any, bodies regulate publishing activity?  Are they governmental, quasi-governmental or independent? What are some of the major laws/regulations?

Program content is largely regulated through codes of practice developed by industry groups representing the various broadcasting sectors.  


ACMA is a statutory authority established under the Broadcasting Services Act 1992 (Cth) (“BSA”), and amongst other functions, regulates commercial television content through compulsory standards it has produced.  ACMA will register a code once it is satisfied that broadcasters have undertaken public consultation and the codes contain appropriate community safeguards.


Regulation of news publishing in Australia is largely conducted by a self-regulatory body, the Australian Press Council (“APC”). The APC is the principal body with responsibility for responding to complaints about Australian newspapers, magazines and associated digital outlets. The APC also issues principles, standards and guidelines for the publishing industry.


Australian content on commercial television is regulated by the BSA, the Australian Content Standard (“ACS”) and the Television Program Standard 23. Additionally, licence conditions regulate matters, such as tobacco and therapeutic goods advertisements, sponsorship announcements on community TV and the broadcast of political matters.   


Publishing in Australia is otherwise limited by laws of more general application, such as the tort of defamation.  


To what extent and by what process can the government censor publishing activity?

Classification of publications, films and video games falls to the Australian Classification Board (“ACB”), whose role is to classify material for its suitability or availability for different age groups. The ACB has the ability to refuse classification (based on certain criteria) and therefore ban publications, films and video games.


Illegal and offensive content is regulated through the Online Content Scheme under Schedule 5 and 7 of the BSA. Additionally, the publication of material on the internet is now further regulated by the Children’s eSafety Commissioner, being an office within ACMA. The Commissioner’s principal remit is to ensure children and young people have safe and positive experiences online.  


This includes protecting children from online pornography, cyber-bullying, and other related activities. The Commissioner assesses online content against the National Classification Scheme, and can investigate and take action based on complaints about content that is, or is likely to be, prohibited under law.


Whilst there is no national ‘Bill of Rights’ or express right of free speech in Australia, the High Court of Australia has held that the Australian Constitution contains an implied protection of freedom of communication relating to government and political matters.


Censorship or restrictions upon free speech in Australia are also affected by specific legislation, such as bans on the advertising of tobacco, or racial vilification.  Menacing, harassing or offensive communications using a carriage service (such as the internet) is also a criminal offence.


Under the National Classification Scheme, online film content is required to be submitted for classification. In December 2016 it was announced that there would be a 12 month pilot of a new classification tool designed to streamline the process of classifying Netflix content, with the aim of making it easier for programmes to become available to Australian audiences. The Minister for Communication states Netflix has developed the tool in consultation with the Government and combines Netflix’s viewer recommendation technology with Australian classification standards.


Is there any limitation of the number of publishing media (including broadcast outlets) that any one entity can own or control (for anti-trust reasons or otherwise)?

Regulation of investment in, and ownership of, the media has three main sources:

1. the rules on ownership and media diversity imposed by the BSA;

2. the general anti-trust rules set out in the Competition and Consumer Act 2010 (Cth); and

3. restrictions on foreign investment into Australian businesses set out in the Foreign Acquisitions

    and Takeovers Act 1975 (Cth).


1. Ownership and control rules under the Broadcasting Services Act 1992

The table below summarises certain key rules on ownership and media diversity under the BSA.


Medium Rules

Commercial free-to-air television, radio, newspapers

The 4/5 rule’ - there must be no fewer than five independent, and separately controlled, media operators or groups in a metropolitan commercial radio licence area, and no fewer than four in a regional area.

Commercial free-to-air television, radio, newspapers ‘Two out of three rule’ - a person cannot control more than two out of three specified media platforms in a commercial radio licence area. The media platforms are:

1. commercial television;

2. radio; and

3. associated newspaper.

Commercial free-to-air television. ‘One-to-a-market rule’ - a person must not be able to exercise control of more than one commercial television broadcasting licence in a licence area, except for commercial licences issued by ACMA under s. 38C of the BSA.


Commercial radio. ‘Two-to-a-market rule’ - a person must not be able to exercise control of more than two commercial radio broadcasting licences in the same licence area, except for commercial licences issued under s. 40 of the BSA.


Commercial free-to-air television. ‘75 per cent audience reach rule’ - a person must not be in a position to exercise control of commercial television broadcasting licences whose total licence area exceeds 75 per cent of the population of Australia.


2. Ownership and control rules under the Competition and Consumer Act 2010 (“CCA”)

Under the CCA, a corporation or natural person must not directly or indirectly acquire shares or any other asset if the acquisition would have the effect, or likely effect, of substantially lessening competition in any market.  


Such provisions, and the usual mechanisms for merger review and control in Australia, applies equally to transactions in the media and broadcasting sector, in addition to the restrictions on ownership and control contained in the BSA.


3. Foreign Acquisitions and Takeovers Act 1975

Under s. 55 of the Foreign Acquisitions and Takeovers Regulation 2015, the acquisition by a foreign person of an interest of at least 5 per cent in an entity or business that wholly or partly carries on an “Australian Media Business” is a notifiable action and will require the prior approval of the Foreign Investment Review Board, irrespective of the value of the investment.


The Foreign Acquisitions and Takeover Regulations 2015, defines “Australian Media Business” as an “Australian business of publishing daily newspapers, or broadcasting television or radio, in Australia (including on websites from which all or part of those newspapers or broadcasts may be accessed)”.


Do news organisations receive any different rights or protections than ordinary citizens and/or businesses?

The two significant issues with respect to the (limited) protections offered to news organisations and their journalists are, first, the protection of a journalist’s source of information and, secondly, in relation to defamation matters.

 

First, journalists and news organisations in Australia have some limited protection from being compelled by a court to disclose sources of information received by them.  The Australian Journalist’s Code of Ethics states that journalists should:

“...aim to attribute information to its source.  Where a source seeks anonymity, do not agree without first con­sidering the source’s motives and any alternative attributable source.  Where confidences are accepted, respect them in all circumstances.”


To assist journalists, some (but not all) Australian jurisdictions have enacted laws which, to varying degrees, provide a form of ‘journalist privilege’ to protect them from being compelled to give evidence confirming the identity of confidential sources (“Shield Laws”), though the courts may still override such privilege where it is in the public interest to do so.


Secondly, with respect to defamation, whilst at common law there is no public interest immunity or privilege enjoyed by journalists preventing the disclosure of their confidential sources of information, there is a rule of practice (but not of law), known as the “newspaper rule”, which precludes a news organisation or journalist from being required to disclose the identity of its confidential sources of information prior to the trial of an alleged defamation or related action.   


The newspaper rule does not protect a media defendant from disclosure of sources of information in an application for preliminary discovery if the plaintiff satisfies the court that, in the circumstances of the case, disclosure is necessary in the interests of justice, or to do justice between the parties.


Do online publishers receive any different rights or protections than traditional broadcast or print publishers?

Rights and protections offered to publishers are applied equally to them irrespective of the broadcast medium they utilise. Specifically, all Shield Laws as enacted in various Australia jurisdictions apply in a medium neutral manner.  


Are bloggers protected as news providers?  Are “citizen journalists” protected as

news providers?

The increasingly important role bloggers and other new forms of media transmission have in disseminating facts and information cannot be ignored. As such, the proper definition of ‘journalist’ is an important issue.  As stated, the Shield Laws vary between jurisdictions within Australia. Typically, the Shield Laws apply only to persons engaged in the profession or occupation of journalism and, as a result, will not apply to those engaging in journalism in a non-professional capacity, such as bloggers.


However, it is noted that, in the context of the Federal jurisdiction, the Evidence Amendment (Journal­ists Privilege) Act 2011 (amending the Commonwealth Evidence Act) came into force in April 2011 and provides the court discretion to order that a journalist is not required to answer questions which might reveal a source.


The important aspect is the definition of “journalist”, which under s. 126J of the Evidence Act 1995 (Cth) means: “a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium”, (emphasis added).


Due to the broad definition of a “news medium” - defined as any medium for the dissemination to the public or a section of the public of news and observations on news – the Federal Shield Laws are widely considered to apply to bloggers, tweeters, aggregators and email campaigners.  However, no case to date has confirmed this position.


What are the elements of a claim for defamation?

The common law tort of defamation has been retained in each separate jurisdiction in Australia but with some statutory modifications (in particular, a number of additional statutory defences to defamation claims), which were enacted on a uniform basis in each Australian state and territory.


The tort as it applies under the common law of Australia was neatly summarised in the Duffy v Google Inc decision, as being comprised by publication by the defendant to another person of a matter defamatory of the plaintiff.


The tort can be broken down into the following ingredients:

(i) the defendant participates in publication to a third party of a body of work;

(ii) the body of work contains a passage alleged to be defamatory;

(iii) the passage conveys an imputation;

(iv) the imputation is about the plaintiff; and

(v) the imputation is damaging to the plaintiff’s reputation.


Are there any restrictions on the types and/or amount of advertising material in

print media?

Advertising of material is largely self-regulated.  The central element of the self-regulatory system is the Advertising Standards Bureau (“ASB”).  The ASB manages the complaint resolution process by assessing complaints against the advertising industry’s self-regulatory codes.  


The system of self-regulation was established by the Australian Association of National Advertisers (“AANA”).  AANA’s Code of Ethics is another central element to the self-regulation of advertising and is designed to ensure that advertisements, and other forms of marketing communications, are legally compliant, honest, and truthful, and that they have been prepared with a sense of obligation to consumers and society.


Whilst the majority of advertising is self-regulated, the advertising of some classes of products are highly regulated.  For example, the advertising of therapeutic goods, such as medicines, is regulated by the Therapeutic Goods Act 1989 (Cth).


Prescription only medicines may not be advertised, except to certain classes of healthcare professionals. Advertisement of non-prescription medicines is permitted but subject to particular regulations, the scope of which is beyond this paper.  Similarly, the advertising of tobacco products is prohibited in Australia by the Tobacco Advertising Prohibition Act 1992 (Cth).


Additionally, s. 18 of the Australian Consumer Law (“ACL”) provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive.


Certainly, advertising and other promotional activities undertaken to draw attention to a good or service, that is for sale, or to generally build the goodwill of a trading corporation through corporate advertising, will be subject to s. 18 of the ACL. The ACL also contains certain specific prohibitions, including prohibitions against false representations about the country of origin of goods, and ‘bait advertising’.  


Does a publisher have liability for the third party advertising that it runs?

A publisher may be liable for third party advertising that it runs. However, certain defences are likely to be available to the publisher.  


For example, breaches of the contravention defined in Chapter 4 of the ACL, including false or misleading representations about goods or services, are subject to the statutory defence provided by s. 209. This defence requires that the defendant be in the business of publishing advertisements and did not know, and had no reason to suspect, that its publication would amount to a contravention of the ACL.


Publishers and broadcasters bear some responsibility for ensuring a basic level of compliance with the Therapeutic Goods Act (“TGA”) in advertisements that are published by them. The object of the TGA, in relation to advertising, is to ensure the marketing of therapeutic goods to consumers is conducted in a socially responsible manner that promotes the responsible use of those goods and does not deceive or mislead consumers.  


Failure to comply with the TGA may lead both, or either, the publisher and third party (whether it be a pharmaceutical company or other body) to be in breach of the TGA.


Similarly, though to a greater degree, publishers and broadcasters are directly responsible for ensuring that they do not publish and / or broadcast advertisements in breach of the Tobacco Advertising Prohibition Act 1992 (Cth) (“TAPA”).  Specifically, under s. 15 of the TAPA, it is an offence for a Corporation to publish or broadcast a tobacco advertisement unless in accordance with one of the limited exceptions provided by the TAPA.


Where a publisher or a broadcaster publishes and / or broadcasts an advertisement containing defamatory material they will potentially face liability as a joint tortfeasor (subject to certain defences).


Broadcast

What trends are you seeing in your market?

Commercial television and, to a lesser extent, radio broadcasting is presently going through a tumultuous period in Australia.  Advertising revenue on free-to-air television continues to be static or slightly contracting as advertising dollars drift towards online advertising, whilst audience numbers continue to be diverted to either subscription television (Foxtel, controlled by News Corporation, now being a near-monopoly provider) or new entrants in the video-on-demand segment such as Netflix, and Stan (a joint venture between Nine Television Network and Fairfax Media).


Traditional television broadcasters are now expanding their direct-online presence. For example, Nine Television Network has rolled out ‘live streaming’ services, in addition to their existing ‘catch-up’ streaming services. Additionally, Foxtel has released “Foxtel Go” – a service which allows streaming of live sporting events and TV shows, as well as access to a range of TV shows, sports and movies at anytime.


Partly in response to the trends referred to above, and as a result of increased competition, the Australian Government is in the process of introducing a package of reforms to support Australia’s broadcasting sector (“Reform Package”).


The Reform Package includes the repeal of the following two rules regulating media control and ownership of commercial television and radio broadcasting assets:

(i) the ’75 per cent audience reach rule’ which prohibits commercial television broadcasting

licensees from controlling licences whose combined licence area populations exceed 75 per cent of

the population of Australia; and

(ii) the ‘2 out of 3 rule’ which prohibits control over more than two out of three regulated media

platforms in any one commercial radio licence area.


Abolition of the ’75 per audience reach rule’ and the ‘2 out of 3 rule’ has the potential to dramatically reshape the media industry in Australia by opening up the opportunity for consolidation of Australia’s media companies.


Furthermore, to address concerns that the above changes to media ownership rules could reduce the amount of local content, the Reform Package will increase the required amount of local content points from 720 points of local content per six week period (each minute is worth one point, or two points if it is local news) to 900 points for the same period. 


Additionally, partly in response to the increased competition for audience and advertising revenue being faced by Australian broadcasters, the Reform Package includes the abolishment of the annual free-to-air broadcasting licence fees (which are currently estimated to raise $130 million) and datacasting charges.


The package introduces a new “spectrum fee”, to take effect from 2017-2018, based on a formula which accounts for each transmitter’s power and population density and is estimated to raise $40 million.

The Reform Package is also proposing to amend the anti-siphoning scheme and list.  


Currently, the anti-siphoning scheme provides free-to-air broadcasters with priority, over subscription TV providers, in obtaining broadcasting rights for specific (popular) sporting events on the anti-siphoning list. Subscription TV broadcasters are required to wait till 12 weeks before the start of an event to see if a free-to-air broadcaster has acquired the broadcasting rights first.  


The Reform Package would end the exclusivity period for national and commercial TV broadcasters at 26 weeks before the start of an event in order to enable subscription broadcasters to better plan and promote their coverage.  


Broadcasting through non-traditional means, for example via video-on-demand sites, such as Netflix, has created challenges for copyright owners.  In particular, the borderless nature of the internet has created jurisdictional concerns for individuals attempting to protect their rights and interests in their work.  As a consequence, there has been a trend towards establishing geoblocks around sites.  


Geoblocking implements measures to restrict online users' access based upon their particular geographical area. Geoblocking allows the segmentation of the internet into different markets based on the user’s geographic location. Associated with the increased use of geoblocking, is the increased attempts to circumvent the geoblocks, mainly through the use of a virtual private network (“VPN”).  


Australians, in particular argue, that geoblocking has created a trend where they are unfairly exposed to commercial strategies that sustain artificially higher prices for online good and services and where they are forced to pay more for less (colloquially referred to as “the Australia Tax”). For example, in the House of Representatives’ Committee Report on the inquiry into IT pricing, entitled “At What Cost? IT Pricing and the Australia Tax”, it was found that Australian’s paid on average 50% more for music, 85% more for computer games and 16% more for e-books than consumers elsewhere.


Questions have arisen as to the extent to which adopters of VPN’s are liable under the Copyright Act 1986 (Cth) for breach of copyright.


The Reform Package also includes restrictions on gambling advertising and promotions during live sporting events with the aim of reducing children’s exposure to gambling.


The new restrictions will prohibit all gambling advertising during live sport pre 8.30 pm, and 5 minutes before and after a sporting event pre 8:30 pm.  Importantly, the restrictions apply to commercial television, commercial radio, subscription television, the SBS, online services, ‘catch up’ services, and live online streaming aimed at Australian audiences.


List significant broadcast cases / transactions over the past year

TEN and Foxtel

In late 2014, publicly listed TEN Network Holdings Limited (“TEN”), which owns the Ten Television Network, invited proposals for a takeover of TEN.  No proposal proved successful, but in early 2015 TEN embarked on a capital raising exercise that saw it issue A$77 million in shares to dominant subscription television provider, Foxtel, as well as A$77 million shares through an entitlement offer to existing shareholders. Post-transaction, Foxtel now holds 14.9%, representing the maximum controlling interest allowable under the BSA.


The Board of TEN was also restructured with a Foxtel nominated director joining the slimmed down 6 person board of directors. The transaction further deepened the connections between TEN and Foxtel/News Corporation, with Foxtel and TEN entering into an arrangement whereby TEN outsourced all of its advertising sales to Foxtel’s advertising sales company (in which TEN would take a 25% interest).


Atanaskovic Hartnell advised TEN’s largest shareholder, Birketu Pty Ltd (“Birketu”) and its owner, Bruce Gordon, on responding to the initial takeover proposals and subsequent capital raising.


The Nine Network and changes in regional affiliation arrangements

Publicly listed Nine Entertainment Co. Holdings Limited (“Nine”), which owns the Nine Television Network, also saw substantial changes in its share register in late 2015, with hedge fund Apollo Global Management exiting their investment in Nine by selling  its 13 per cent holding for $145 million.  


Bruce Gordon’s Birketu acquired a 14.9% interest - the maximum it can hold under current media ownership laws.  Birketu also acquired a derivative economic interest equivalent to a further 5% shareholding of Nine by means of a cash-settled equity swap.


In March 2016, Nine acquired a 9.9% interest in publicly listed regional affiliate broadcaster, Southern Cross Media Group Limited (“Southern Cross”). Historically, Southern Cross has typically re-broadcasted the programming of the Ten Television Network into many regional areas. Nine’s programming has traditionally been re-broadcast into regional areas by the WIN Corporation (“WIN”).  


However, in April 2016, with respect to certain regional areas of Queensland, Victoria and Southern NSW, a dramatic switch occurred with TEN’s and Nine’s respective affiliates; Nine entered into a five year affiliation deal with Southern Cross, and TEN entered into a five year affiliation deal with WIN.


These transactions effectively completed a transition whereby Nine and TEN effectively switched their broadcasting affiliate partners for the majority of their regional broadcast licence areas. Atanaskovic Hartnell advised WIN Corporation on the new regional television affiliation agreement with TEN.


Proposed Sale of Northern NSW Television

On 28 March 2017, Southern Cross announced it has reached an in-principle agreement with WIN for the sale of Southern Cross’ Northern NSW Television for a price of $55,000,000.


WIN is one of Australia’s largest regional commercial television networks.  WIN broadcasts into twenty two markets across six states of Australia, Queensland, News South Wales, Victoria, Tasmania, South Australia, Western Australia as well as the Australian Capital Territory.


The announcement states that the proposed sale remains subject to execution of an agreement and satisfaction of certain conditions including the consent from TEN for transfer of its Northern NSW affiliation agreement. Atanaskovic Hartnell is acting as the legal adviser to WIN on this asset sale and purchase transaction.


Is there any government-owned broadcast media?  If so, how does the government media differ in operation from the private media, if any?

The majority of Australian media outlets are privately owned.  However, the Australian Broadcasting Corporation (“ABC”) is a national public broadcaster owned and funded by the Australian Government. The ABC provides five domestic television stations, fifty-four domestic radio stations and a range of online and mobile services throughout metropolitan and regional Australia. Additionally, ABC operates internationally through Radio Australia.


The ABC is funded out of general revenue rather than TV licensing fees, and, unlike SBS, does not carry any advertising or sponsorship. Although funded and owned by the Government, ABC’s editorial independence is statutorily protected through the operation of the “Charter of the Corporation” contained in s. 6(2)(iii) of the Australian Broadcasting Corporation Act 1983 (Cth) and, in this sense, ABC’s media content is not “owned” by the Government.


Like the SBS (as discussed above in the Publication section), the ABC is required to develop codes of practice relating to programming matters and lodge the codes with ACMA. The ABC is also accountable to the Parliament through annual reporting, corporate plans, financial and performance audits, and appearances before Parliamentary Committees.


Is there any non-commercial broadcast media?  If so, how does non-commercial media differ in operation and regulation from commercial media, if any?

In addition to the ABC and SBS, broadcasting licences are available to non-commercial groups, generally referred to as “community broadcasters”. There are over 300 licensed community radio stations and over 70 licensed community television broadcasters. These will generally carry advertising but operate on a non-profit basis.


What, if any, bodies regulate broadcast activity?  Are they governmental, quasi-governmental or independent? What are some of the major laws/regulations?

The BSA is the major piece of legislation regulating broadcasting activity. The legislation establishes regulatory controls, for example, by subjecting aspects of broadcasting to licence conditions.

With respect to broadcasting, ACMA’s primary responsibilities include promoting self-regulation and competition in the communications industry, whilst protecting consumers and other uses, and fostering an environment in which electronic media respects community standards.


The ACS also sets out the specific minimum annual sub-quotas of Australian documentary and children’s programs that all commercial free-to-air television licensees must broadcast (discussed below). It should be noted that local content quota regulations do not extend to online streaming services.


To what extent and by what process can the government censor broadcast activity?

Material and programmes broadcast on television is not classified by the Australian Classification Board. The SBS and the ABC have their own codes of practice, and content is classified in-house.


The commercial television networks operate under the Commercial Television Industry Code of Practice developed by Free TV Australia, and registered with ACMA. Similarly, radio is classified under a co-regulatory scheme in line with the BSA, meaning that content standards are set and developed by industry and registered with the ACMA.


ACMA is responsible under the BSA for determining broadcast standards but such standard must not require the prior approval of any broadcast material by the ACMA or any other person.  


That is, pre-broadcasting ‘clearance’ or ‘censorship’ is not permitted – complaints or actions for breaches of standards or codes of practice can only be brought after the fact. Broadcast standards and industry developed codes of practice, however, do regulate the broadcasting of content depending upon its classification by the ACB.


What media is within the scope of broadcast regulation?  Is cable tv regulated?  Is satellite tv regulated?  Is the internet regulated?

Both satellite and cable television are regulated by ACMA and the BSA, although different regulations apply to them as compared to free-to-air broadcasters. These providers require a ‘subscription television licence’, which is typically subject to a number of conditions, including:


Of the above, the anti-siphoning list is typically considered to be the most restrictive, covering most major Australian sporting codes and major sporting events. This is sometimes put forward as part of the reason why subscription television has a lower market penetration rate in the Australian market than is typical of many other western jurisdictions.


Are cable television providers required to carry broadcast (free-to-air) television channels?

No, they are not required to, but under the BSA they have a right to do so and in practice generally do.


Are satellite television providers required to carry broadcast (free-to-air) television channels?

No, but, as above, they in practice generally do. In addition, metropolitan terrestrial broadcasters are actively compelled under the BSA to make their programming available to satellite broadcasters for re-transmission.


Are retransmission fees payable by cable and/or satellite television providers to free-to-air broadcasters in respect of the carriage of their television channels?

Part VC of the Copyright Act 1968 (Cth) permits broadcasting (including by satellite) of a re-transmission of another broadcast (but not re-transmission over the internet, for example) and provides a regime for determining re-transmission fees.


Is a licence required to broadcast?  If so, how are those licences obtained?  If so, can broadcasters sell or otherwise transfer those licences?  If so, what are the most important terms of those licences?

Yes, ACMA is the relevant licensing authority and under the BSA a licence is generally required to broadcast television or radio (with some minor exceptions). However, the relevant regulations excludes transmission over the internet from the definition of ‘broadcast’ for the purposes of the BSA, and so no licence is required for online-only video or radio channels.


Licences are provided for particular licence areas and ACMA, amongst other matters, has responsibility for determining licence areas, broadcasting spectrum and frequencies. The number of licences available and the process for obtaining a licence will depend upon the type of licence sought.


Once obtained, a commercial broadcasting licence (for free-to-air television or radio or for subscription television) may be transferred to any person. The most important terms of the licenses are the right (and obligation) to broadcast, the restriction of only broadcasting within the designated licence area, and the licence conditions (disclosed below).


Is there any limitation on foreign ownership of broadcast media?

Yes. Please see response to same question in the Publishing section above.


Is there any limitation of the number of broadcast outlets and/or other publishing media that any one entity can own or control (for anti-trust reasons or otherwise)?

Yes. Please see response to same question in the Publishing section above.


Are there any restrictions on the content of broadcast programming?

Yes, for both commercial television broadcasting and commercial radio broadcasting.


A. Commercial television broadcasting

As stated in the Publishing section (above), commercial television broadcasting content is presently restricted by:


I. three ‘Standards’ issued by ACMA;

II. the ‘self-regulatory’ Commercial Television Industry Code of Practice; and

III. specific ‘licence conditions’ attached to the issue of the broadcasting licences.


I. Commercial Television Standards

The standards issued by ACMA are:


(1) Australian content standard

The most significant content obligation is the requirement to broadcast a minimum quota of ‘Australian’ content. This Standard largely reflects a statutory requirement drafted directly into the BSA mandating minimum Australian content. Commercial free-to-air television broadcasters accordingly must:


(i) ensure that ‘Australian programs’ form 55% of all programs transmitted by the broadcasting

service between 6am and midnight; and

(ii) ensure that, for each calendar year beginning on or after 1 January 2015, the total number

of hours of ‘Australian programs’ that were transmitted by the licensee:

a. during targeted viewing hours in the year; and

b. otherwise than on the primary commercial television broadcasting service provided by the licensee,

is not less than 1,460 hours.


Items (i) and (ii) are drafted so as to distinguish between the ‘core’ / ‘primary’ channel operated by each licensee and any secondary channels operated by them.  In metropolitan licence areas, each of the three commercial television broadcasting licensees is entitled to operate one primary and two secondary channels.


The definition of ‘Australian programs’ includes programs made in New Zealand and programs produced under ‘Official Film Co-production Agreements and Memoranda of Understanding’, between Australia and other countries.


(2) Australian advertising standard

This standard requires that at least 80% of the total advertising time broadcast in a year between 6 am and midnight is occupied by Australian produced advertisements.  An advertisement is Australian produced if it is wholly pre-produced, filmed and post-produced in Australia or New Zealand (or a combination of those countries) or if Australians have exercised direction over its creative and administrative aspects.


(3)  Children’s Television Program Standards

The Children’s Television Program Standards require:

(i) at least 260 hours of children television content and 130 hours of pre-school children

television content to be broadcast each year;

(ii) certain minimum levels of Australian children television content; and

(iii) certain minimum levels of Australian children drama content.


II. Television Industry codes of practice

Industry codes of practice are developed within the relevant industry (but in consultation with ACMA) and must meet the fairly prescriptive criteria required of such a code, as set out in s. 123 of the BSA.


ACMA is then required to register a code of practice if satisfied as to certain matters. Enforcement of the relevant code of practice is theoretically a matter for the relevant industry group but may be brought to the attention of ACMA in certain circumstances.


Compliance with the relevant code of practice is a statutory condition of the broadcasting licence.  If ACMA is unhappy with a code of practice it has the ability to issue a Standard instead.


The Commercial Television Industry Code of Practice 2015 addresses the following areas

of regulation:

(1) rules of program classification, including material not suitable for broadcast;

(2) news and current affairs;

(3) disclosure of commercial arrangements;

(4) advertising limits;

(5) advertising restrictions, including for sensitive products such as alcohol and gambling; and

(6) feedback and complaints.


Whilst not directly covered by the BSA, the government owned ABC and SBS broadcasters are also required under their own enactments to develop and notify ACMA of their own codes of practice. Subscription television also maintains the Subscription Broadcast Television Codes of Practice 2013.


III. Commercial television broadcasting licence conditions

A number of broadcasting licence conditions are set out in the BSA, including bans or restrictions on advertising of tobacco products and medicines, conditions around the broadcasting of political advertisements or other material, and bans on the broadcasting of pornographic material.


B. Radio broadcasting

Commercial radio broadcasting content is restricted by:

          I. two Standards issued by the ACMA;

   II.  the ‘self-regulatory’ Commercial Radio Industry Code of Practice, and

   III.  specific ‘licence conditions’ attached to the issue of the broadcasting licences.


         I. Commercial radio standards

The two Standards issued by the ACMA are:

(1) The Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 (the

Disclosure Standard”).

The Disclosure Standard imposes a number of interrelated obligations, which are broadly directed at

ensuring that there is full and fair disclosure of any commercial agreements with a sponsor that

relates to a current affairs program, apart from clearly identifiable advertisements; and

(2) The Broadcasting Services (Commercial Radio Advertising) Standard 2012 (the “Advertising

Standard”).

The principal operative provision of the Advertising Standard provides that advertisements broadcast

a licensee must be presented in such a manner that the reasonable listener is able to distinguish

them from other program material.


         II. Commercial Radio Codes of Practice

The Commercial Radio Codes of Practice and Guidelines regulate commercial broadcast radio content, in the following areas:

(1) programs that are unsuitable for broadcast (Code 1);

(2) news and current affairs programming (Code 2);

(3) advertising (Code 3);

(4) the broadcast of Australian music (Code 4);

(5) the handling of complaints (Code 5);

(6) interviews and talkback programs (Code 6);

(7) the broadcast of emergency information ( Code 8);

(8) the treatment of persons participating in live hosted entertainment programs (Code 9); and

(9) the promotion of gambling and betting odds in live sports coverage (Code 10).


The codes of practice also include guidelines and explanatory notes on the portrayal of indigenous Australians, women, suicide and mental illness.

      III. Commercial radio broadcasting licence conditions

Many of the licence conditions applied under the BSA apply equally to commercial radio as to commercial television. In addition, regional commercial radio broadcasters are subject to licence conditions imposing minimum amounts of ‘material of local significance’.


Also, higher and quite detailed requirements for the broadcast of local news, weather and community service announcements apply to a regional radio broadcaster.


Is there any requirement that a broadcast outlet carry a certain amount of public interest or similar programming?

In licence areas in regional Queensland, regional New South Wales, regional Victoria and Tasmania, commercial television broadcasters are required by their broadcasting licence conditions to broadcast a certain quota of programs of local significance (generally, a local news bulletin).


Regional commercial radio broadcasters may also face higher obligations for the broadcast of ‘local’ material, particularly after a ‘trigger event’ such as a change in the control of the licence and / or licensee.


Are there any restrictions on a broadcast outlet’s airing of adult-only programming?

Yes. Material classified as ‘X’ (pornography) may not be broadcast (on either free-to-air or on subscription television). Material classified as ‘R’ may not be broadcast on free-to-air television. Further restrictions apply to when material of other classifications may be broadcast on free-to-air television.


Are there any restrictions on a broadcast outlet’s airing of children’s programming?

Commercial television broadcasters must meet the Children’s Television Program Standards, as described above.


Are there any restrictions on the types and/or amount of advertising material that airs on broadcast media?

As noted above, under the BSA, tobacco advertising is banned and advertising of medicines are heavily regulated. The ‘Australian Content in Advertising’ standard also applies (see above).


The Commercial Television Industry Code of Practice also restricts the amount of advertising that may be shown each hour between 6 am and midnight, to between 13 and 15 minutes (depending upon certain specified circumstances).


Whilst commercial broadcasters are not required to provide free political advertising, they are required to make space available to all political parties already represented in Parliament, on a fair basis.

Advertising in commercial radio is not limited as to quantity.


Does the broadcaster have liability for the third party advertising that it runs?

Yes. Outside of conditions imposed by the BSA, described above, broadcasters will be subject to laws of general application in the same manner as publishers.  Please see the ‘Publishing’ section above for a description of those laws.


Entertainment

What trends are you seeing in your market?

The Australian entertainment market is forecasted to grow to $43.4 bn by 2019.  In the last 12 months, Australian and New Zealand have experienced a 10 per cent net increase in distributable royalty income.


Whilst revenue and turn-over within the entertainment industry is expected to increase, on-going technological advancements are having profound effects on the industry and have placed it in a state of flux.  For example, consumers’ increased used of streaming services (such as the music streaming service, Spotify) are resulting in a contraction of the digital download market. However, net revenue in FY15/16 has increased when revenue for both the streaming and digital download markets are combined and compared to the revenue for those same markets in FY14/15.


Additionally, the live music events and festivals sector is facing challenges due to these technological advancements, as well as result from changing consumer behaviour. Since FY12/13, live music revenue and attendance have been continually decreasing.  FY14/15 saw 55 live music festivals and events cancelled and 6 downsized.


The rush of advertising dollars from traditional-media to online-media is expected to continue over the next five years, with internet advertising set to account for more than 50% of the total Australian advertising market by 2019, reaching a predicted total of $8.2 bn.


Whilst viewing patterns continue to change, as Australian consumers embrace “connected devices”, broadcast television content watched in the home still remains to be the popular. This is most certainly true for Australian’s accessing news content. Viewing of broadcast TV watched live or played back within 28 days on in-home TV sets now accounts for 86% of video viewing across all devices. On average Australians watch almost 2 hours and 40 minutes of broadcast TV in the home each day.


Consumer spending on entertainment and media products is forecasted to grow to $27.1 billion by 2019. Specifically, there are a rapidly growing number of internet-accessible wearable devices that allow individuals to track their activities in real-time. There is a concurrent growing interest in privacy and security management as increasing amounts of personal data are generated by these devices.


The Reform Package (detailed in the ‘Broadcasting’ section above) has developed incentives to increase viewership of sports on subscription television. The Reform Packages will inject an additional $30 million over four years to subscription television to increase coverage of sports that receive low or no broadcast exposure. These include women’s sports, niche sports, and sports that command high levels of community involvement and participation. The funding is anticipated to increase the exposure of these sports to Australian audiences, and, therefore, aims to increase the marketability of sporting events.


List significant entertainment cases / transactions over the past year

Sale of Nine Live and Ticketek

Nine announced in April 2015 that it had sold its Nine Live events business, which includes ticketing business Ticketek, to the Asian private equity group Affinity Equity Partners for A$640 million.


Bid for Fairfax Media

TPG Capital is believed to have quietly amassed shares in Fairfax Media, as it weighs up whether to make a full bid for the online property portal and media group in early 2017.


Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317

This case concerned the illegal downloading of a movie by use of a torrent system. The torrent system allows users to download / shares files (typically in relation to entertainment or extra-curricular related files, such as films, movies, television series and software) through a network of sharers.  


The plaintiffs in this case were the holders of the copyright in the movie ‘Dallas Buyers Club’, and sought orders for preliminary discovery against six ISPs. Additionally, the copyright holders sought the release of the contact details of account holders who, it was claimed, had illegally torrented the film, and in doing so had breached the copyright in the film.    


The Court allowed the application and gave orders for discovery, conditional upon: (i) protection of account holders’ privacy; and (ii) the Court’s prior approval of any letters proposed to be sent to account holders by the copyright holders.


The dispute then focused on the terms of the proposed letters of demand, which were ultimately rejected. Essentially, the Court indicated its views with respect to what a copyright owner may legitimately claim in proceedings against individuals who have illegally downloaded a film or other copyrighted and published content. Specifically, the following where held to be permissible claims:

i. an amount equal to the cost of purchasing a copy of the film; and

ii. damages for the costs incurred in obtaining the infringers' names.


However, the following were all held to be impermissible claims:

i. an amount equal to the licence fee lost by each uploading activity over the torrent network. His

Honour, Justice Perram, held the claim to be  ‘so surreal as to not be taken seriously’; and

ii. additional damages under s. 115(4) of the Copyright Act 1968 (Cth), based on how many other films

had been downloaded by each infringer.  


What, if any, bodies regulate the entertainment media?  Are they governmental, quasi-governmental or independent? What are some of the major laws/regulations?

Entertainment media businesses are, for the most part, regulated no differently to any other Australian business. They will be principally bound by rules of fair trading, as now set out in the CCA and ACL.


To what extent and by what process can the government censor entertainment activity?

The Entertainment Industry is affected by laws of general application on obscenity (which is governed by criminal law in each Australian State and Territory) and on racial vilification and hate speech. There is generally not, however, ‘censorship’ in the entertainment sector other than:

(i) classification of video games; and

(ii) theatrical performances in South Australia may require classification under the Classification of

Theatrical Performances Act 1978 (SA).


A system of voluntary labelling guidelines for audio tapes, records and CDs manufactured in Australia has been developed by the Australian Record Industry Association and the Australian Music Retailers Association.


Additionally, the Federal Government has allegedly, on occasion, delayed or refused to issue visas to certain foreign persons wishing to visit Australia, on the grounds of ‘character’. Musicians such as Chris Brown, ‘Tyler, the Creator’ and ‘Snoop Dogg’ were allegedly refused access to Australia.


Is there any limitation of the number of entertainment media and/or outlets that any one entity can own or control (for anti-trust reasons or otherwise)?

Anti-trust law applies in the entertainment sector as it does to the economy generally (please see the Publishing and Broadcasting sections above for further information).


For example, in December 2011, Australia’s dominant ticket-sales platform, Ticketek was fined $2 million by the Australian Competition and Consumer Commission as Ticketek’s refusal to publish a competitor’s discounted ticket prices on their internet platform was considered to amount to Ticketek taking advantage of its substantial market power for an anti-competitive purpose.


Are there any restrictions on entertainment content?

Media content, including entertainment content, must comply with laws regarding public obscenity, discrimination and ‘hate speech’. Please see the Publication and Broadcasting sections above for restrictions on the publishing, broadcasting and the substance of the relevant content.


Can entertainment content include integrated advertising material (aka paid placement)?

Yes.  General consumer protection measures as to misleading and deceptive behaviour, however, may apply (for example, if the entertainment has been mis-described), though this would be highly unusual.


Are all uses of a person’s identity in entertainment media considered to be a non-commercial use?

So-called ‘personality rights’ are limited in Australia and fall within the fields of the ‘tort of passing off’ and misleading and deceptive conduct under the ACL. Unauthorised use of a person’s name or image for a commercial purpose may lead to liability.  


However, the representation of a real person by an actor in a play, for example, would be permissible so long as the audience is not being misled to believe that it is that person (rather than an actor).


To what extent are an individual’s image rights capable of being protected in your market?

As discussed above, the use of a person’s image for commercial exploitation can be protected by the tort of passing off, or by the prohibition on misleading and deceptive conduct under the ACL. The tort of defamation might also be relevant.


The claim for a tort of passing off is successfully made if the use of a name, image or persona misled a significant proportion of the public by implying:

(i) that the relevant personality approved of the advertiser or its product;

(ii) a connection between exists the personality and the advertiser; and

(iii)  that the advertiser was authorised by the personality.  


Even a fictional persona can be protected in this manner. For example, in Pacific Dunlop v Hogan (1989) 23 FCR 553, the Court of Appeal held that the misappropriation in an underwear commercial of the ‘Crocodile Dundee’ character would still be misleading and deceptive as members of the public would still think that there was some commercial arrangement (and hence authorisation and support) between the character’s creator, Paul Hogan, and Pacific Dunlop, where in fact no such commercial arrangement existed.


Does the jurisdiction have talent unions and/or guilds?  If so, what are some of the major considerations in working with those unions/guilds?  How can an entertainment producer create content without working with those unions/guilds?

The main talent union is the Media Entertainment and Arts Alliance (“MEAA”). The MEAA was formed from the merger of three organisations: the Australian Journalists Association, Actors Equity of Australia, and the Australian Theatrical & Amusement Employees Association.  


Considerations for those seeking to work with, or join, include (but not limited to):


For example, MEAA publicises it will negotiate wages and conditions as well as ‘fight for the professional and policy issues that matter’. MEAA also states that its members are entitled to discounts to various theatre companies, and other entertainment related goods and services.


Are there any restrictions on employment of child actors?

Legislation regarding the employment of children generally (including child actors) has been enacted throughout Australia. Generally, employment of a person under the age of 15 in the entertainment industry requires the obtaining of a valid permit or other authority from the applicable State or Territory regulator.


Such employment will then be subject to a number of conditions, for example, restricting the number of hours that the child may work each week.


AUSTRALIA

Industry Guide: Publishing, Broadcast & Entertainment Q&A



Written by John Atanaskovic and Jon Skene,

Atanaskovic Hartnell

Jon Skene

Technology continues to play a major role in re-shaping Australia’s Publishing Industry. The developments in technology, in addition to consumer’s increasing reliance on digital media, have resulted in declining revenues in the printed news sector – down 8.4 per cent per annum between 2011 and 2016.  

John Atanaskovic

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Biographies

John Atanaskovic practises both English law in London and Australian law in Sydney, focusing on mergers and acquisitions, corporate governance, capital markets, competition law and litigation.  John has extensive media law experience,  having acted for organisations as varied as the Australian Broadcasting Corporation, WIN Corporation, CanWest Global Communications Corporation, Consolidated Press Holdings, News Corporation, FXF Trust and Ten Network Holdings. He has been rated by Chambers Global as Australia's leading business lawyer and by UK Legal Business as one of the top ten corporate lawyers in the world. His most recent media transactions and cases include:


He has also acted:


Jon Skene practises in public and private mergers and acquisitions in both the Australia and UK, business sale and purchase, joint-ventures, capital markets and securities (including advice on the listing rules of the ASX, LSE and AIM), private equity, corporate governance, general corporate advisory matters, and competition and antitrust law generally. He has acted on numerous M&A transactions and other matters within the Australia media sector, including:



Additionally, Jon has further experience in the UK including:



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