Week 1 - Topic 1: Regulatory framework and industry context
DEFINITIONS (Core Concepts)
1.1 Communications Industry Disruption
Structural shift from legacy media (FTA TV, radio, print) to digital platforms and SVOD causing audience + advertising migration; undermines broadcast-based regulation.
1.2 Regulatory Mandate (Napoli)
Regulation must be justified by public interest rationales, not political motivations. Rationales = market failure, democratic harms, information integrity.
1.3 s 51(v) Communications Power
Commonwealth power over “postal, telegraphic, telephonic and other like services,” interpreted broadly to include radio, TV, Internet, digital platforms.
1.4 Direct Regulation
Government-made and -enforced binding rules via statute, regulations, delegated instruments.
1.5 Co-Regulation
Industry drafts rules → regulator registers & enforces them under statutory power.
1.6 Self-Regulation
Industry-wide scheme where industry drafts & enforces rules without regulator involvement.
1.7 Platform Governance
Internal platform rules (community standards, algorithmic moderation, oversight boards); not formally regulation but exercises public policy function.
1.8 Platformisation
concept describing how global digital platforms act as quasi-regulators via moderation systems, ranking algorithms, and internal rule-making that substitutes for or bypasses state regulation.
KEY SOURCES OF LAW & REGULATION
2.1 Constitutional
Commonwealth Constitution s 51(v) — broad communications power.
2.2 Primary Legislation
Broadcasting Services Act 1992 (BSA)
Telecommunications Act 1997
Radiocommunications Act 1992
Online Safety Act 2021
Competition and Consumer Act 2010
Privacy Act 1988 (reform underway)
2.3 Delegated Instruments
Ministerial Determinations
ACMA Standards (e.g., program standards)
Regulations under above Acts
2.4 Non-Statutory Instruments
Industry Codes (co-regulated when registered by ACMA)
Radiocommunications Act 1992 (Cth) – spectrum licences for use of radiofrequency spectrum.
Telecommunications Act 1997 (Cth) – “carriers”, “carriage service providers”, ISPs.
ABC Act 1983 (Cth) and SBS Act 1991 (Cth) – special regime for national broadcasters.
1.2 Cross-sector competition law
Competition and Consumer Act 2010 (Cth) (CCA) –
s 50 CCA – mergers that substantially lessen competition.
Pt XIB CCA – anti-competitive conduct in telecommunications (sector-specific overlay).
Pt XIC CCA – telecommunications access regime.
Pt IVBA CCA – News Media and Digital Platforms Mandatory Bargaining Code (platforms vs news businesses).
Key Definitions – Broadcasting & Narrowcasting
2.1 Broadcasting service (BSA – big picture)
A “broadcasting service” (s 6 BSA – from textbook) is about delivering television/radio programs to the public using spectrum; once something qualifies as a broadcasting service, it must be slotted into one of the categories in s 11 BSA (see below).
2.2 Commercial broadcasting service – s 19(1) BSA
A commercial broadcasting service is a broadcasting service that (all must be satisfied) [s 19(1) BSA]:
General public appeal – programs intended to appeal to the general public [s 19(1)(a) BSA].
Receivable on common equipment – able to be received by commonly available equipment [s 19(1)(b)(i) BSA].
Free-to-air – made available free to the general public [s 19(1)(b)(ii) BSA].
Advertising-funded – usually funded by advertising [s 19(1)(c) BSA].
For profit – operated for profit or as part of a profit-making enterprise [s 19(1)(d) BSA].
Complies with determinations – must comply with any determinations/clarifications under s 19 [s 19(1)(e) BSA].
2.3 Categories of broadcasting service – s 11 BSA
Once a service qualifies as a “broadcasting service”, it is classified into one of these [s 11 BSA]:
(a) National broadcasting services (ABC, SBS).
(b) Commercial broadcasting services (FTA TV/radio run for profit).
(c) Community broadcasting services (non-profit, community-oriented).
FTA TV and radio that meet “broadcasting service” and “commercial/community” categories – ACMA service licence + content standards (e.g. accuracy, decency) [BSA].
Largely unregulated as broadcasting
SVOD (Netflix, Stan), BVOD (9Now, iView, 7plus catch-up), AVOD (YouTube channels) – typically do not fall under BSA broadcasting service categories, no ACMA broadcasting licence, and generally no BSA content rules for on-demand versions of the same programs.
In-between (authorised narrowcasting)
Tourist information radio, other open/subscription narrowcasting – no individual licence, but must comply with conditions for that service type (BSA + determinations).
Licensing vs Authorisation; Service vs Spectrum
3.1 Licensing vs authorisation
Licence – specific permission granted to a named entity following application (e.g. commercial TV service licence from ACMA under BSA).
Authorisation – standing right to operate if conditions in Act/instruments are met (e.g. certain narrowcasting services).
National broadcasters (ABC/SBS) – heavily regulated, but no ACMA individual service licence; powers and obligations arise directly from ABC Act and SBS Act.
3.2 Service licences vs spectrum licences
Service licence – permission to provide a broadcasting service (commercial/community TV/radio) [BSA].
Spectrum licence (Radiocommunications Act) – permission to use radiofrequency spectrum (transmitters, base stations, satellites).
For broadcasters, special arrangements in BSA historically link service licences with necessary spectrum rights, but legally they are distinct concepts.
Telecommunications, Carriers, Carriage Service Providers, ISPs
4.1 Carriers vs carriage service providers – Telecommunications Act 1997 (Cth)
Carrier – owns or operates telecommunications infrastructure (e.g. mobile networks, fixed lines) and must hold a carrier licence [Telecommunications Act].
Carriage service provider (CSP) – provides services to end-users using a carriage service (e.g. resale of telco services) but does not own the infrastructure; no carrier licence, but subject to telco rules [Telecommunications Act].
ISP – classed as a carriage service provider offering internet access (and often other related services).
One company (e.g. Telstra, Optus, TPG) can be both a carrier and a CSP depending on which activities it performs.
4.2 Spectrum in telecommunications
Use of radiofrequency spectrum for mobile phone, mobile broadband, wireless links requires spectrum licences under the Radiocommunications Act, in addition to any carrier licences/service obligations.
Pre-reform: Telecom Australia and OTC as state-owned monopolies.
Post-reform: Telstra as dominant incumbent; simple cross-sector competition law not enough → extra provisions in CCA:
Part XIB CCA – targeted rules against anti-competitive conduct by telcos (e.g. misuse of market power in telecoms).
Part XIC CCA – access regime to ensure new entrants can obtain access to Telstra’s infrastructure on reasonable terms.
5.2 Media: general competition law plus guidance
Media companies generally subject to standard s 50 CCA merger test – prohibition if acquisition would substantially lessen competition in any market.
ACCC media merger guidelines – sector-specific guidance on how s 50 CCA is applied to media markets (cross-media ownership, audience reach, advertising impacts).
Later in course: additional media ownership/control rules in sector-specific legislation (e.g. BSA ownership and control provisions).
Problem Question Flowchart – Classifying and Regulating a Service
Use this when given a new service (e.g. regional video service, local radio stream, niche app).
Does the service deliver programs to the public via broadcasting?
1.1 If YES → Does it fall under the BSA definition of “broadcasting service” (s 6 BSA)?
1.2 If NO → Likely online service / platform / telco / content service – go to digital platforms/online safety/telecoms analysis.
If it is a broadcasting service, what category is it? [s 11 BSA]
2.1 National / commercial / community / subscription broadcasting / subscription narrowcasting / open narrowcasting / international.
2.2 Consequence: each category has specific licensing + content rules (e.g. accuracy, classification, local content).
Does it need a service licence or is it authorised by category?
3.1 Commercial/community broadcasting → individual ACMA service licence.
3.2 Open/subscription narrowcasting → no individual licence, but must comply with category conditions (authorisation).
3.3 ABC/SBS → governed directly by ABC Act / SBS Act, not ACMA-licensed.
Does it involve telecommunications infrastructure or spectrum?
4.1 If yes → identify carrier (Telecommunications Act) and spectrum licence (Radiocommunications Act) obligations.
4.2 If service provider does not own infrastructure → treat as carriage service provider / ISP.
Are there competition law issues?
5.1 Consider market definition, market power, and whether conduct or mergers might substantially lessen competition [s 50 CCA].
5.2 If telco: check Parts XIB/XIC CCA for sector-specific conduct and access obligations.
Week 2 - Topic 4: Digital Platforms
7. What is a “Digital Platform”?
7.1 Practical working idea
“Digital platform” is a policy term, not a single statutory definition. It covers:
Search engines (e.g. Google Search).
Social media platforms (e.g. Facebook, Instagram, TikTok).
App stores (Google Play, Apple App Store).
Online marketplaces, video sharing platforms, etc.
One company may operate multiple different platform services (e.g. Meta: Facebook + Instagram; Google: Search, YouTube, Android, Maps).
Problem: very different functions → regulation is fragmented across domains, not one “platform law”.
Regulatory Domains for Digital Platforms – Australia
8.1 Competition law (ACCC)
Regulator: Australian Competition and Consumer Commission (ACCC).
Key focus: market power and bargaining power of large platforms (Google, Meta).
Major output: News Media Bargaining Code (implemented via CCA – Pt IVBA and related provisions) to address bargaining power asymmetry between platforms and news businesses.
8.2 Consumer protection (ACCC)
Regulator: ACCC.
Focus on:
Online scams.
Misleading conduct on review sites, hidden paid promotions.
Industry codes and standards for social media, messaging services, hosting services etc.
8.4 Media regulation (ACMA)
Regulator: Australian Communications and Media Authority (ACMA).
For platforms, mainly informal/soft role, e.g.:
Government-requested reports on the voluntary industry Disinformation Code.
Ongoing policy advisory role on convergence of broadcasting + online content.
8.5 Privacy (OAIC)
Regulator: Office of the Australian Information Commissioner (OAIC).
Enforces Privacy Act 1988 (Cth) against digital platforms.
Example: action against Meta following the Cambridge Analytica scandal.
ACCC Digital Platforms Inquiries – Market Power & Bargaining Power
9.1 Digital Platforms Inquiry (DPI) – 2017–2019
Wide-ranging inquiry into Google and Meta’s role in advertising, search, social media, and news distribution.
Key findings:
Google and Meta have significant market power in specific markets.
They have bargaining power over news media businesses → news businesses are “unavoidable trading partners”.
Output: recommendations across competition, media regulation, privacy, consumer protection, copyright.
Regulatory response: News Media Bargaining Code + broader “regulating in the digital age” roadmap.
9.2 Digital Advertising Services Inquiry – 2020–2021
Focus on ad tech supply chain, Google’s role across the stack, and competition/efficiency issues in digital advertising markets.
9.3 Digital Platform Services Inquiry (DPSI) – 2020–2025
Ongoing program of work examining:
Intensity of competition in digital platform services.
Concentration of power and conduct by large platforms.
Practices that cause consumer harm (e.g. self-preferencing, misleading conduct).
Market trends and international developments.
Output: series of interim reports → potential reforms in competition, consumer and privacy law.
Digital Platforms – Conceptual Map for Exams
10.1 Why market power and bargaining power matter
Traditional competition law focuses on market power, barriers to entry, and merger impacts.
For platforms, regulators are also concerned with bargaining power asymmetry (e.g. Google/Meta vs news media) because:
Platforms control discoverability and distribution.
News businesses rely on platforms for reach and advertising revenue.
This underpins sector-specific tools like the News Media Bargaining Code, on top of general competition law.
10.2 Australian vs EU approach (high-level)
Australia – initially built on ACCC inquiries, using competition law + targeted instruments (e.g. bargaining code).
EU – uses more centralised digital platform legislation (e.g. Digital Markets Act/Services Act), built squarely on competition + internal market rationale.
Exam point: no single universal model; approaches differ but revolve around digital market power + systemic risk.
Exam Answer Formulae
11.1 Problem question – new content / comms service
Identify the service and delivery tech
1.1 Is it using broadcasting (spectrum), telecoms infrastructure, or just internet applications?
1.2 Is it linear broadcast or on-demand/online?
Test if it is a “broadcasting service” under the BSA
2.1 Does it fit the BSA broadcasting service definition (from textbook) – programs delivered to the public using spectrum?
2.2 If yes, classify under s 11 BSA (national / commercial / community / subscription / narrowcasting).
2.3 Apply s 19(1) BSA elements to see if it is a commercial broadcasting service (general appeal, free-to-air, ad-funded, for profit).
Determine regulatory status: licence vs authorisation
3.1 If commercial/community broadcasting → needs service licence from ACMA; content rules apply (accuracy, decency etc).
3.2 If narrowcasting → no individual licence, but must meet category conditions in BSA.
3.3 If SVOD/BVOD/AVOD → typically outside BSA broadcasting service regime; no ACMA broadcasting licence, but may be caught by Online Safety Act or general law.
3.4 If ABC/SBS → regulated by ABC Act/SBS Act, not by ACMA licensing.
Check telecoms / spectrum implications
4.1 Does the service involve owning/operating infrastructure (carrier) or just reselling (CSP/ISP)?
4.2 Apply Telecommunications Act to decide if a carrier licence is required.
4.3 If spectrum is used → spectrum licence under Radiocommunications Act.
Overlay competition law
5.1 Consider whether conduct or merger would substantially lessen competition [s 50 CCA].
5.2 If telecommunications: apply Pt XIB/XIC CCA to assess anti-competitive conduct/access issues.
5.3 If digital platform or bargaining issue with news media: engage News Media Bargaining Code (Pt IVBA CCA) and ACCC findings on market/bargaining power.
Week 3 - Topic 5: Media Content Regulation
Sources of Content Regulation
1.1 Hierarchy of regulatory sources
Source
Made by
Enforcement
Consequence of breach
Legislation (BSA itself)
Parliament
ACMA
Highest - statutory penalties
Licence conditions (Sch 2 BSA)
Parliament
ACMA
High - can affect licence
Program standards
ACMA
ACMA
Moderate - ACMA enforcement powers
Co-regulatory codes
Industry, registered with ACMA
ACMA
Lower - code breach process
Self-regulatory codes
Industry alone
Industry
Lowest - no government enforcement
The same rule may have different consequences depending on where it sits. Example: radio disclosure rules sit in a program standard (stronger ACMA powers) while TV disclosure rules sit in a code of practice (weaker enforcement).
1.3 Disclosure rules - case study in regulatory evolution
Origin - ABA inquiry 1999/2000 found radio hosts making undisclosed commercial arrangements.
Response - ABA imposed licence conditions on specific licensees → then made industry-wide program standard.
Current position - Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2018 still in force; rule on distinguishing ads from editorial moved back to code.
Classification Regimes
2.1 Three parallel classification systems
Content type
Regulatory instrument
Who classifies
Complaints to
Films, games, publications
Classification (Publications, Films and Computer Games) Act 1995 + National Classification Code
Classification Board (+ assessors, streaming tools)
Classification Review Board
Television
Commercial Television Industry Code of Practice (s 2)
Broadcasters (self-classification)
Broadcaster → ACMA
Online content
Online Safety Act 2021 (formerly in BSA)
eSafety Commissioner (since 2015)
eSafety
2.2 Television classification - key features
Adapts National Classification Scheme ratings (G, PG, M, MA15+, etc.) for broadcast.
Timezones restrict when certain classifications can be broadcast.
Self-classification by networks under code of practice.
2.3 Online content scheme - evolution
Originally inserted into BSA, administered by ACMA.
Moved to eSafety in 2015.
Moved from BSA to Online Safety Act 2021.
Based on distinction between Class 1 (prohibited) and Class 2 (restricted) material
2.4 Reform status
ALRC inquiry concluded 2012.
Neville Stevens review reported 2020; released 2023.
Current two-stage reform: Stage 1 commenced September 2024; Stage 2 consultation ongoing (April 2024 consultation paper).
Anti-Siphoning Scheme
3.1 Policy rationale
Prevents popular sports events being “siphoned” from free-to-air TV to subscription/streaming services that require payment - justified by public interest in access.
3.2 How the scheme works
Minister sets list of protected events (Broadcasting Services (Events) Notice 2023).
Acquisition priority - subscription broadcasters cannot acquire rights to listed events until a FTA broadcaster has had the opportunity.
Automatic delisting - if no FTA broadcaster acquires rights 6 months before event, subscription services may acquire.
Anti-hoarding (Part 10A BSA) - rights can be sold to national broadcasters if commercial networks buy but don’t intend to use.
3.3 2024 amendments - extension to digital services
Problem: original scheme only applied to “broadcasting services” - did not cover streamers.
Communications Legislation Amendment (Prominence and Anti-siphoning) Act 2024 inserted Part 10B into BSA.
Now streamers and other digital services (not just pay TV) cannot acquire rights until FTA broadcasters have had opportunity.
3.4 Key provisions
Part 10A BSA - anti-hoarding.
Part 10B BSA - anti-siphoning (as amended 2024).
Australian Content Regulation
4.1 Commercial television - dual scheme
Requirement
Source
Detail
55% Australian transmission quota
BSA (ss 121G, 121H, 122)
Yearly requirement
Genre quotas
Broadcasting Services (Australian Content and Children’s Television) Standards 2020
Collective broadcast quota for drama, children’s, documentary
Advertising
Broadcasting Services (Australian Content in Advertising) Standard 2018
Australian content in ads
4.2 Pay TV - expenditure-based
New Eligible Drama Expenditure (NEDE) scheme - based on financial investment rather than broadcast hours.
4.3 Commercial radio
Australian content rule exists in Commercial Radio Code of Practice (less elaborate than TV).
Other core legislation that we’ll mention but not look at in detail: Telecommunications Act 1997 (Cth), Radiocommunications Act 1992 (Cth),
Examples of off-shoot or related legislation:
Australian Communications and Media Authority Act 2005 (Cth), Telecommunications (Consumer Protection and Service Standards) Act 1997 (Cth),
Competition and Consumer Act 2010 (Cth) [Part IVBA contains the News Media Bargaining Code while Parts XIB and XIC are telecommunications specific];
National Broadband Network Companies Act 2011 (Cth); Classification (Publications, Films and Computer Games) Act 1995 (Cth).
Examples of ministerial and regulator-initiated regulations:
Broadcasting Services (Events) Notice 2023 [the sports anti-siphoning list, made by the Minister];
Online Safety (Basic Online Safety Expectations) Determination 2022 [made by the Minister];
Telecommunications (NBN Continuity of Service) Industry Standard 2018 [made by ACMA];
Broadcasting Services (Australian Content and Children’s Television) Standards 2020 [made by ACMA].
Forms of regulation
Direct regulation
encompasses legislation, regulations and any regulatory instruments issued under delegation by government ministers or regulators.
Co-regulation
covers arrangements where industry participants, usually through their intermediary bodies, develop the rules set out in a code of practice or other instrument which is then registered with a regulator under a statutory power and enforced by the regulator.
Self-regulation
covers industry-based schemes where industry is responsible for rule-making as well as any enforcement (ie, there is no formal role for a government regulator).
Public resource rational
Scarcity rationale
Pervasivenesss
Reasonably ancillary relationships
Week 1 - Topic 1: Regulatory framework and industry context
Regulatory framework and industry context
Regulatory framework and industry context
The communications industry has undergone massive change over recent decades. This will be a theme as we explore aspects of regulation and how the regulatory framework has been creaking under the strain of new services and industry participants. In past years we might have spent considerable time looking at how competition was introduced into the telecommunications sector. But over the last five years the biggest challenges have come from digital platforms.
By the end of this topic you should have an understanding of the nature of these changes and how the regulatory framework is attempting to address them, as well as who are the main regulatory players and the key sources of law and regulation.
The communications industry and disruption
In class, we’ll look at a few key indicators of the changes that have occurred over recent years - for example, how streaming video on demand (SVOD) services like Netflix as well as YouTube and other video platforms have taken viewers from free-to-air TV, and how advertising revenue has moved away from traditional media businesses to digital platforms - Meta and Google in particular.
This interests us for two reasons.
First, traditional forms of regulation have been undermined. As we’ll see in Topic 5, imposing broadcast quotas on commercial TV requiring them to show Australian drama programs starts to look shaky if much of the audience is getting content from Netflix or Stan or Youtube.
Second, entirely new regulation has been created to deal with new problems - for example, the News Media Bargaining Code that has seen Google and Meta strike deals with news providers. Another example is the voluntary Australian Code of Practice on Disinformation and Misinformation which is still in operation, even thought the government had been attempting through 2023 and 2024 to introduce new co-regulatory arrangements.
In future weeks we’ll look at the mechanics of both these and other initiatives, while in Topic 2 we’ll take a more conceptual look at how to regulate - why we might choose a voluntary code over an Act of Parliament, for example.
Why we regulate
There are longstanding principles about why we regulate communications services, including the dependence of some services on public radiofrequency spectrum and the perceived influence of mass media. As you’re probably guessing by now, these principles are themselves challenged by changes in technology, industry practices and participants, and audience preferences. But understanding why we regulate ‘legacy’ services is important in working out how we should regulate in the future.
The textbook (Rodrick et al) readings for this topic take you through some of the history and background, while the extract from the Napoli book applies some of this thinking about the rationale for regulation to social media services.
Regulatory actors and instruments
The law in this area is mostly federal. And in fact it starts at the top as there is a ‘communications power’ in the Constitution. S 51(v) is the head of power for ‘postal, telegraphic, telephonic and other like services’. Yes, it’s pre-radio and pre-TV as well as pre-Google! But it’s a very wide power. A series of cases in the 20th century established its application to radio, TV and the internet, including aspects like ownership and control as well as content regulation.
From there, we have a series of headline Acts (see below) including the Broadcasting Services Act 1992 (Cth) which is the subject of the reading in the textbook; various off-shoot and related Acts; Ministerial determinations; regulations issued by the various regulators; codes of practice developed by industry and then registered with and enforced by the regulator; and voluntary industry codes and guidelines.
The main Commonwealth department in this area is the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, although some other departments also have functions. The Communications Minster (Anika Wells, although until the election in May it was Michelle Rowland, now the Attorney-General) has responsibility for broadcasting services, but Arts Minister (Tony Burke) has overseen work on regulation of SVOD services, while the Assistant Treasurer (Daniel Mulino) has responsibility for the News Media Bargaining Code.
The key regulators are:
The Australian Communications and Media Authority (ACMA)
The Australian Competition and Consumer Authority (ACCC)
The Office of the eSafety Commissioner (eSafety).
The Office of the Australian Information Commissioner (OIAC
) is also a key agency in relation to privacy protection, with the Attorney-General’s Department responsible for a long-running Privacy Act Review that resulted in a Bill being introduced into Parliament in September 2024 and some legislative reform commencing in 2025. And the Department of Industry, Science and Technology is overseeing coordination of AI policy, including the publication of a Voluntary AI Safety Standard in September 2024. The Productivity Commission released its much-maligned interim report Harnessing Data and Digital Technology in August 2025 and is expected to deliver its final report in December. While these initiatives intersect with our interests, we don’t cover them directly in this subject.
Week 1 - Topic 2: Forms of regulation
Forms of regulation
Forms of regulation
This topic is less about specific instances of media, telecommunications and online regulation, and more about the types or forms of regulation used. This is more than just a theoretical issue; understanding forms of regulation helps when selecting the best method for an emerging problem. In addition, there is a direct connection between the form of regulation used and the enforcement action that can be taken
Many people are sceptical of industry-based self-regulation - and there are many examples of ineffective self-regulation - but this is not always the case, and sometimes there are other public policy objectives to consider. For example, self-regulation might help to avoid other problems that can arise when governments step in. Regulation of print media has long been devolved to industry as a way of avoiding the risks of governments taking action against those whose function is to hold them to account. There are similar free speech concerns with regulating mis- and disinformation, although this varies across jurisdictions.
While there are different ways of understanding forms of regulation - and we’ll see this in the readings - in this subject we adopt a three-part approach that is commonly used in media and communications policy in Australia. This involves separating direct (government) regulation from co-regulation and (industry-based) self-regulation. To this we’ll a fourth term which has increasing relevance in relation to digital platforms - governance - although we won’t regard that as form of ‘regulation’ as such.
By the end of this topic you should be able to distinguish between these various approaches to regulation. It’s not always easy to tell what form of regulation a particular instrument falls into, but with the tools acquired in this module you should be able to work it out.
Direct (ie government) regulation
‘Direct regulation’ encompasses legislation, regulations and any regulatory instruments issued under delegation by government ministers or regulators. The major Act and some of their off-shoots were listed in the previous module. We’ll look at some examples of Ministerial determinations when we start on our specific topics in January. Regulators can be empowered or even required under Acts to develop some regulatory instruments, and sometimes the authority is shared. For example, certain overall broadcast quotas for Australian content are imposed on commercial FTA broadcasters directly under the BSA, but the Act also requires the ACMA to develop a program standard that deals with some specific aspects such as drama quotas.
Co-regulation
‘Co-regulation’ covers arrangements where industry participants, usually through their intermediary bodies, develop the rules set out in a code of practice or other instrument which is then registered with a regulator under a statutory power and enforced by the regulator.
Co-regulation has a long history in the Australian communications sector, more so than in many other jurisdictions. It began when the BSA was introduced in 1992 and the regulator was no longer empowered to develop rules about aspects such as classification of programs; instead, the broadcasting industry would develop codes of practices for its various sectors (eg, commercial FTA broadcasts, commercial radio broadcasters) which could be submitted to the regulator for registration, provided they met certain requirements. It would be the regulator’s responsibility to enforce them.
This approach was in turn applied to telecommunications in 1997 as part of the introduction of competition, and then to online services in 1999.
Probably the leading media code is the Commercial Television Industry Code of Practice, while the leading telco code is the Consumer Protections Code.
Self regulation
‘Self-regulation’ covers industry-based schemes where industry is responsible for rule-making as well as any enforcement (ie, there is no formal role for a government regulator). It’s important that we distinguish ‘organised’, industry-based self-regulation like this from company-specific initiatives.
Examples of industry-based self-regulation are:
the scheme run by the Australian Press Council, including the administration of its General Principles and Specific Standards
the scheme run by Ad Standards, based on a code developed by the Australian Association of National Advertisers
the scheme run by DIGI (Digital Industry Group Inc) in relation to its code on disinformation and misinformation.
The first of these applies to news publishers like News Corp Australia and Nine Entertainment as well as some smaller publishers like Crikey. The second applies to advertisers - large corporates like Toyota as well as smaller advertisers. The third applies to a smaller number of digital platform companies including Google, Meta and Twitter. All of them include a complaint-handling mechanism.
Governance
This is bit more complicated because there’s a lot of variation in understandings of governance. It’s often used in explaining the ‘platformization’ of the internet. In international scholarly work on digital platforms, the concept of ‘platform governance’ often covers the range of different domains, actors and tools that will be called into operation by public policy. We’ll look at this more closely in Topic 4 when we read a chapter on this topic by the leading Australian scholar, Terry Flew.
For our purposes, the most practical way of understanding governance is to see it as an umbrella term that covers the three types of regulation listed above as well as … other things. By this we mean other ways of achieving some policy objective. It’s something that is not direct, co- or self-regulation - keeping in mind that our understanding of self-regulation is limited to organised, industry-based self-regulatory schemes that apply to more than one company. Governance, then, might describe the in-house community standards adopted by Google as well as the Facebook Oversight Board operated by Meta.
In class
Regulation to protect children: TV vs social media
Commercial free-to-air TV
Classification Act + Broadcasting Services Act
Commercial Television Code of Practice
Social media
Online Safety Act (including Minimum Age amendment)
Social Media Services Online Safety Code (Class 1A and 1B Material)
Phase 1 industry codes and standards deal with class 1a and 1b material
Class 1A material is material that is seriously harmful, including child sexual abuse material, pro-terror material, and extreme crime and violence
Digital platforms
Facebook , Apple, Amazon, Netflix, Google, Microsoft
ACCC digital Platform Services Inquiry 2020-2025 - digital platforms covered
Internet search engine services
Social media services
Online private messaging services
Digital content aggregation platform services
Media referral services and electronic marketplace services
What can be regulated
Constitution s 51(v) - postal, telegraphic, telephonic, and other like services
Underlying reasons for regulation
Spectrum scarcity
Public resources
Role in democratic society - public trust/public good
Pervasiveness/influence
‘Reasonably ancillary’ (US)
In class - Topic 2: Forms of regulation
Forms of regulation in the communications sector
The policy process
Broadcasting Services Act - objects
Objects of the Act s 3
(b) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive, and responsive to audience needs
Types of regulation media
Government regulation
Laws set by parliament
Rules developed by ACMA or the Minister and enforced by ACMA eg, program standards, determinations
Co-regulation
Codes of practice developed by industry and enforced by ACMA
Self-regulation
Minimum age requirement: core provision
63D Civil penalty for failing to take reasonable steps to prevent age-restricted users having accounts
A provider of an age - restricted social media platform must take reasonable steps to prevent age - restricted users having accounts with the age - restricted social media platform.
Civil penalty: 30,000 penalty units.
Week 2 - Topic 3: Broadcasting, telecommunications and internet service providers
Broadcasting, telecommunications and internet service providers
Key definitions - categories of broadcasting service
The explanation of what constitutes a commercial broadcasting service (reproduced below) is found in s19(1) of the BSA. See ss 13-18A for similar explanations of the other categories.
(1) Commercial broadcasting services are broadcasting services:
(a) that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and
(b) that provide programs that:
(i) are able to be received by commonly available equipment; and
(ii) are made available free to the general public; and
(c) that are usually funded by advertising revenue; and
(d) that are operated for profit or as part of a profit-making enterprise; and
(e) that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.
Communications regulation
Licensing and authorisation
Some services are unregulated (or at least largely unregulated), while others are quite heavily regulated and require an individual licence. And some services sit in between; they’re subject to certain rules but they don’t require the provider to obtain a licence from the ACMA.
Broadcasting services
At present, SVOD (like Netflix and Stan), BVOD (broadcast video-on-demand - the streamed catch-up services of the FTA broadcasters), and AVOD (advertiser video-on-demand like YouTube channels) services fall into this category. While the broadcast version of a Channel Nine news program is subject to rules about accuracy etc and the provider of the service must have a licence issued by the ACMA to provide the broadcasting service, the catch-up version of that same program is not subject to content rules or licensing requirements.
So this describes the unregulated and the heavily regulated. In between, some others need to follow certain rules but don’t need an individual licence. The tourist information radio services you encounter (or at least see signs for) when you drive into regional towns and cities, for example, don’t need to apply to the ACMA for a specific licence to provide that service. These are called ‘narrowcasting services’ and are treated differently, because they are seen to be less impactful than commercial services, and because their reception is limited in some way (eg geographically, or in not being of broad appeal to the general public, or in being issued for a limited time).
This distinction can be understood in terms of the difference between licensing and authorisation. Whereas some services require an individual licence, some types of services have a kind of standing authority to operate, provided they comply with rules set out in the Act or in other regulatory instruments.
Having said all that, there’s an exception! The national broadcasters - the ABC and SBS - are quite heavily regulated for both their TV and radio services, but they don’t have individual licences issues by the ACMA. They have their own Acts of Parliament - the Australian Broadcasting Corporation Act 1983 (Cth) and the Special Broadcasting Services Act 1991 (Cth).
Service licences and spectrum licences
One further distinction to keep in mind is that between service licences and spectrum licences. This only applies to services using the radiofrequency spectrum - so, FTA TV, radio, mobile phone, mobile broadband etc. The party that operates transmitters, receivers, satellites, base stations etc must have a separate licence issued by the ACMA under the Radiocommunications Act. For broadcasters, a special arrangement in the BSA has provided a spectrum licence along with a service licence.
Telecommunications service providers, carriers, and ISPs
This same distinction applies in telecommunications, where the providers of telecommunications infrastructure like mobile phone networks are referred to as ‘carriers’ and must have an individual licence, while providers of retail services who do not own the infrastructure but pay a carrier to do this, are referred to as ‘carriage service providers’. This is also how we characterise ISPs in the law - they are ‘internet service providers’. It’s important to note, however, that the one company (like Telstra, Optus, TPG) can be both a carrier and a service provider. All of this is established in the Telecommunications Act.
In telecommunications, as well as in broadcasting, spectrum licences will be required for the use of the radiofrequency spectrum. There are different types of spectrum licences, but our main concern is with the service licences, especially those issued for broadcasting services.
Categories of broadcasting services
In broadcasting, the foundational point for what is covered by the BSA and what sits outside the Act is the definition of ‘broadcasting service’. This is covered by the textbook reading, and we’ll look at it in class. For now, just note that once a service does qualify as a broadcasting service, it will be classified into one of several types of service. These are called the ‘categories of broadcasting service’ and they determine the licensing requirements and the content rules that apply. They also set up some important differences in the penalties that might apply for breach of these rules, which we’ll look at further in class.
Section 11 of the BSA sets out these categories:
(a) national broadcasting services;
(b) commercial broadcasting services;
(c) community broadcasting services;
(d) subscription broadcasting services;
(e) subscription narrowcasting services;
(f) open narrowcasting services;
(fa) international broadcasting services.
Competition regulation
All of the above is sector-specific in that it’s law and regulation created specifically for the communications sector. In contrast - as you’ve probably encountered before - competition law is cross-sector. At least in principle, rules that limit anti-competitive conduct and limitations on mergers of competitors are universal and apply across different industries. That said, some particular problems encountered in some industries have required an adjustment of general competition laws.
This is perhaps best understood with reference to the telecommunications sector. In the mid-1980s, domestic telephone services were provided by one government-owned operator, Telecom Australia, while overseas telephone services were provided by OTC (also a government entity). Then public policy changed and the decision was made to introduce competition in the market and to privatise the government operators. But competition didn’t just appear, and the market was dominated by the ‘incumbent’ Telstra (formerly Telecom). As a result, special provisions were introduced into competition law to assist in the development of competition. Part XIB provided addition rules governing anti-competitive conduct, while Part XIC introduced an access regime to help new providers negotiate access to Telstra’s existing services.
Much more recently, Part IVBA was introduced in 2021 to assist news businesses to negotiate with Google and Meta. We’ll look at the background to this in Topic 4, then the scheme itself in Topic 8.
In contrast, media is generally subject to the same competition rules as other industries. While the general test of a substantial lessening of competition in a market (found in s 50 of the Competition and Consumer Act) applies, the ACCC has established a set of guidelines for application to media mergers. We’ll look at this aspect in this topic, then in Topic 7, we’ll come back to sector-specific rules that are applied to media ownership and control
Week 2 - Topic 4: Digital Platforms
Digital platforms
Digital platforms
Some aspects of online services have been regulated since the late 1990s. In particular, a scheme for restricting ‘adult’ and other types on internet content was first introduced in 1999 but has been added to and adapted as technology has evolved, including new rules for mobile phone content in the mid-2000s. The internet content scheme was then overhauled with the introduction of the Online Safety Act in 2021, which we’ll examine in Topic 6.
But some of the most prominent regulatory questions over the last few years have involved digital platforms. The term ‘digital platform’ is both useful and evasive in that different companies offer quite different services (eg, the difference between search and social media) and a single company can have many different products and services. We’ll look at this definitional issue in class.
In this topic, we’ll start by looking at the different regulatory domains in which questions of digital platform regulation arise and we’ll look in some more detail at the findings of the ACCC in the Digital Platforms Inquiry, which has provided the launching pad for several regulatory initiatives.
By the end of this topic you should be able to separate out the different strands of regulation that involve digital platforms, even though there are some we won’t cover in any detail in this subject. You’ll also have an understanding of the importance of recognising ‘market power’ or ‘bargaining power’ as a basis for digital platform regulation, at least in Australia.
Overview of platform regulation
There isn’t a single source that takes us through all the dimensions of platform regulation, but we can try to understand the motivations and rationale for new laws, and we can start to piece together a map or chart of the different domains of regulation. The picture below shows some of the main areas of platform regulation in Australia, but it’s important to recognise this is evolving and that other jurisdictions have taken a different approach. In the EU, for example, some attempts to regulate digital platforms have been based on competition law.
Online Platforms: Domains of Regulation - Australia
Competition law
Regulator: Australian Competition and Consumer Commission (ACCC)
News Media Bargaining Code resulted from the Digital Platforms Inquiry
Current: Digital Platforms Services Inquiry 2020-2025
Consumer protection
Regulator: Australian Competition and Consumer Commission (ACCC)
Interest in online scams, claims made on review sites, dark patters etc
Online Safety
Regulator: eSafety Commissioner
Online Safety Act 2021 brought together image-based abuse, cyber-bullying and adult cyber abuse, ‘violent abhorrent material’ and industry codes for online content
Media Regulation
Regulator: Australian Communications and Media Authority (ACMA)
Informal oversight (reporting to government) on voluntary Disinformation Code
Privacy
Regulator: Office of the Australian Privacy Commissioner (OAIC)
Current action against Meta over Cambridge Analytica
ACCC Digital Platforms Inquiry and Digital Platform Services Inquiry
The original Digital Platforms Inquiry commenced in late 2017. It was wide-ranging with considerable consultation and a very lengthy final report. We’ll look at some of the areas of inquiry in class, but it’s important you read the extract from the executive summary to get a sense of what the inquiry covered.
At the end of the inquiry, the ACCC made findings that Google and Meta both have market power in certain markets and that they have bargaining power over news media businesses. For news media, the platforms were considered to be unavoidable trading partners.
The most prominent result of these findings - generating a lot of attention internationally - was the News Media Bargaining Code that was finally passed as amendments to the Competition and Consumer Act in 2021. But the ACCC’s report covers a lot of ground, including an attempt to show how legacy services are regulated in a variety of ways, in contrast to platforms.
In the course of this work, the ACCC traversed competition law, media regulation, privacy, consumer protection and copyright. In this subject we’re interested in the first two of these, and we’ll look at how the government at the time responded.
Importantly, the DPI was not the end of the ACCC’s work on digital platforms. A new division of the organisation was created, with a follow-on investigation of advertising practices, and then a five-year program of work known as the Digital Platforms Services Inquiry which ran from February 2020 to March 2025. The matters covered by the DPSI are as follows:
the intensity of competition in markets for the supply of digital platform services, with particular regard to the concentration of power, the behaviour of suppliers, mergers and acquisitions, barriers to entry or expansion and changes in the range of services offered by suppliers of digital platform services
practices of suppliers in digital platform services markets which may result in consumer harm
market trends that may affect the nature and characteristics of digital platform services
developments in markets for the supply of digital platform services outside Australia.
ACCC inquiries into digital platforms:
ACCC Digital Platforms Inquiry: completed, ran from December 2017 to July 2019
Government Response and Implementation Roadmap: (‘Regulating in the Digital Age’): December 2018
ACCC Digital Advertising Services Inquiry: completed, ran from February 2020 to September 2021
ACCC Digital Platform Services Inquiry: current, runs from 2020 to 2025
Flew’s Regulatory Taxonomy
Week 3 - Topic 5: Media content regulation
Media content regulation
Introduction to content regulation
We have already discussed how rules can be found in legislation; other forms of direct (government) regulation like ACMA’s program standards; co-regulatory codes of practice that are registered with and enforced by ACMA; and self-regulatory codes that have no direct involvement by government. The BSA itself includes an assortment of rules such as those about Australian content on commercial and pay TV, sports programs on commercial and pay TV, and local content on commercial TV and radio in regional areas. There are also restrictions imposed via the licence conditions in Schedule 2 that affect political matter including elections ads, ads for tobacco and medicines etc.
We’ll see in this topic that some regulatory issues are split between these different sources. The source itself is important not just on account of who makes the rules, but also because enforcement options differ. As we’ve noted in previous topics, the consequences of breaching a licence condition in Schedule 2 of the BSA are much greater than those for breaching a rule in a code of practice.
The requirements for disclosure of commercial arrangements is a good example of how the source of regulation evolves. The Australian Broadcasting Authority (ACMA’s predecessor) conducted a public inquiry in 1999/2000 and found that commercial radio current affairs hosts had been making confidential commercial agreements with certain businesses and then endorsing them in editorial comments without disclosing the existence of the commercial agreement. The ABA first imposed licence conditions on the licensees of the radio stations involved, then made an industry-wide program standard that imposed disclosure rules along with a requirement for advertisements to be readily distinguishable from editorial material. This Disclosure Standard is still in operation (see link below) but over time it was thought there was no longer a need for a standard on distinguishing editorial from ads, so that rule was moved back to the code of practice.
Disclosure rules also exist for commercial television, but they are located in that sector’s code of practice, not in a program standards. This means that the enforcement options available to ACMA if there’s a breach of the radio disclosure rules are much greater than if there’s a breach of the TV disclosure rules.
Classification: film, broadcasting and online content
Classification involves the application of ratings (‘G’, ‘PG’ etc) to some content as well as advice on the classifiable elements it contains, with some content restricted according to age and some prohibited. There are three main sources of regulation relating to classification of content:
Films, computer games and publications are classified under the National Classification Scheme, applying the Classification (Publications, Films and Computer Games) Act 1995 (and various state and territory enforcement Acts). There is a Classification Board and a Classification Review Board, although assessors perform some of this work, and more recently classification tools have been authorised for streaming services.
Television content is classified by the television networks themselves under the Commercial Television Industry Code of Practice. Section 2 of the code adapts for broadcast the ratings system used in the National Classification Scheme, including the setting of timezones that restrict when some content can be broadcast. Complaints about the classification of TV content go to the broadcasters and then to ACMA, as for other complaints under the code.
There is an ‘online content scheme’ that was originally inserted into the Broadcasting Services Act and administered by ACMA. It was based on the National Classification Scheme with some adaptation for the online environment that involved the identification of prohibited and potentially prohibited material, rather than the classification of all online content. The online content scheme moved from ACMA to eSafety in 2015 and, as we’ll see in Topic 6, from the BSA to the Online Safety Act in 2021. New codes of practice have been developed based on the distinction between ‘Class 1’ and ‘Class 2’ content.
The classification scheme has been the subject of seemingly endless review. After an inquiry by the Australian Law Reform Commission that concluded in 2012, the former Coalition government commissioned a review by Neville Stephens that reported in 2020, although the report was not released until 2023.
The current government has embarked on a two-stage reform process, with some changes commencing in September 2024. The second stage is the subject of another round of consultation which has not yet concluded. The Department issued its Public Consultation Paper: Modernising Australia’s Classification Scheme - Stage 2 Reforms in April 2024, stating that ‘the Government is looking at making comprehensive changes to the Scheme so that it is fit for purpose in a modern media environment’ (p.6).
Sport and the Anti-Siphoning List
‘Anti-siphoning’ is a term first applied in the 1990s when pay TV was introduced in Australia. It describes the perceived threat of popular sports programs being siphoned off free-to-air TV and only made available to audiences who could afford to pay for subscription services. It has long been thought that the public interest in access to these programs justified regulatory intervention, even if that involved some market distortion.
The anti-siphoning list of events is set by the Minister, not by the ACMA. In effect, the scheme has prevented a subscription broadcaster (pay TV provider) from acquiring the rights to listed events until a free-to-air broadcaster has acquired that right. These rights are usually acquired well in advance, but there is an automatic ‘delisting’ six months before the event takes place: if no free-to-air broadcaster has acquired the rights by that time, a subscription broadcaster is entitled to acquire them. ‘Anti-hoarding’ provisions allow for the sale of rights to the national broadcasters if commercial networks who buy the rights do not intend to use them.
The anti-siphoning scheme has always been contentious, with subscription broadcasters and others regarding it as giving the commercial sector an unfair advantage in access to some of the most popular broadcast content. More recently, it raised new concerns as its application to ‘broadcasting services’ meant that it did not prevent streamers and other online content services from acquiring rights.
In July 2024, Parliament passed amendments to the Broadcasting Services Act that extend its operation beyond pay TV (subscription broadcasting services). The changes mean that streamers and other digital services - along with pay TV providers - can’t acquire the rights to listed services until one of the commercial or national broadcasters has had the opportunity to acquire them for its free-to-air service. The legislative changes were made by the insertion of a new Part 10B into the BSA.
In class we’ll look at the latest attempt to tackle this policy issue.
Australian content: broadcast content and proposed SVOD regulation
Rules to promote and protect Australian content - particularly drama - have been a part of broadcasting regulation even longer than the anti-siphoning scheme. While there is a rule about Australian content in the Commercial Radio Code of Practice, a much more elaborate scheme applies to commercial television, where the rules are split between the BSA itself and a program standards developed by the ACMA. This scheme is based on a yearly transmission requirement of 55% Australian, and a collective broadcast quota for some genres programs. A parallel scheme for pay TV - the ‘New Eligible Drama Expenditure’ scheme - is based on financial investment rather than broadcast hours.
There was a significant change in the Australian Content Standard from the start of 2021 that attempted to provide more flexibility to commercial TV licensees but did not address the lingering problem of what to do about streaming services that attract large audiences but do not have any formal regulation in the way that free-to-air TV does.
The previous Coalition government worked on the streamer issue until the work was taken over by the Labor government in 2022. Several policy proposals were issued during this time. Finally, in November 2025 a bill was introduced into Parliament. The proposal is to introduce an investment scheme that would require streamers to invest a minimum level in certain types of Australian programs each year.
Key pieces of legislation and other forms of regulation
Classification
Classification (Publications, Films and Computer Games) Act 1995
National Classification Code
Commercial Television Industry Code of Practice
Online Safety Act 2021
Anti-siphoning
BSA - see Part 10B (anti-siphoning); Part 10A (anti-hoarding)
Broadcasting Services (Events) Notice 2023
2024 amending Act and EM: Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2024
Australian content
BSA - see sections 121G, 121H, 122
Broadcasting Services (Australian Content and Children’s Television) Standards 2020
Broadcasting Services (Australian Content in Advertising) Standard 2018
Other
Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2018
Week 4 - Topic 6: Online safety
Online safety
‘Online safety’
is a term that has emerged to cover law and regulation (and other interventions) that address online harms. The term is imprecise and varies in application across jurisdictions. Here is Australia there are five matters dealt with in our Online Safety Act passed in 2021. The Act does not include aspects such as hate speech and misinformation, which might be dealt with under other legislation, even though protection from hate speech at least is often thought of as an element of online safety.
While this module will provide some indication of the approach taken in other jurisdictions, your main focus will be on understanding the matters covered by the OSA, including some approaches adopted by the eSafety Commissioner that we don’t see in use in more traditional areas of media regulation.
The Australian Online Safety Act
Government regulation, co-regulation and self-regulation have all be used to tackle online harms in Australia. Even within the one category, approaches have evolved over the last few years. When the Australian Parliament first responded to the problem of live streaming of the mass shootings in Christchurch in 2019, it inserted new provisions into the Criminal Code, with additional provisions when the Online Safety Act was developed a year later.
The five matters covered by the Online Safety Act are:
image-based abuse (‘non-consensual sharing of intimate images’, sometimes referred to as revenge porn)
cyber-bullying (this relates to children)
adult cyber abuse
‘abhorrent violent material’ (the expression used to capture, among other things, live streamed violent content)
other illegal and restricted online content.
The last of these matters covers the online content scheme - the latest version of longstanding attempts to develop for online content an approach similar to the classification of content on TV and in films and computer games. We touched on this is Topic 5, and in this class we’ll look at how codes of practice have been developed by different sections of the industry in Australia.
Different approaches
In the European Union, online safety is a part of the relatively new Digital Services Act that came into force in late 2022. Instead of using specific schemes and giving regulatory take-down powers, the DSA relies on higher level ‘due diligence’ obligations on digital platforms to address systemic risks, with some codes and guidelines to supplement these more general obligations.
In the UK, the Online Safety Act was finally passed in 2023 after a long period of contentious policy proposals, including a White Paper from the UK Government. It also has high level obligations including a series of duties of care imposed on relevant digital platforms.
One key difference among these jurisdictions is the way the rules are drafted: in the UK it is the regulator itself that drafts codes of practice; in Australia, industry drafts the codes which are then registered with the regulator if they pass a form of public interest test; in the EU, the European Commission is overseeing the development of some codes of practice, with significant involvement of civil society.
Review of the OSA and the proposed digital duty of care
Although the Online Safety Act was only adopted in Australia in 2021 following a review of how to adjust the regulatory framework, the scheme has already been the subject of another review. The report for that review was completed in late 2024 but not released until early 2025. However, the Minister for Communications announced in November 2024 that the government would introduce legislation that would significantly change the way we regulate online harms, by introducing a digital duty of care:
The Digital Duty of Care will place the onus on digital platforms to proactively keep Australians safe and better prevent online harms …
The legislated duty will future-proof the Online Safety Act, and put the legal responsibility for keeping Australians safe on tech companies. It will ensure Australians continue to benefit from world-leading online safety protections under the Act.
Aligned with United Kingdom and European Union approaches, digital platforms will be required to take reasonable steps to prevent foreseeable harms on their platforms and services, with the framework to be underpinned by risk assessment and risk mitigation, and informed by safety-by-design principles.
The government has not yet released a draft of its legislation, but in November 2025 it published a survey to inform the design of the new duty.
Social media minimum age
Meanwhile - as everyone will be aware - the ‘social media ban’ for under 16s came into effect on 10 December 2025. The ‘ban’ is a requirement on some digital platforms to prevent people under 16 from holding accounts. It does not impose liability on individual users.
As this is a very recent initiative that is being implemented as we’re doing this subject, the best sources are the relevant sections on the websites of the Department of Communications and the Safety Commissioner. Here you’ll find fact sheets, regulatory guidance and other materials.
Key pieces of legislation and other forms of regulation
At the start of this subject we explored the various explanations for why the media is regulated, including how a contemporary understanding of the public interest might result in regulation applying to aspects such as the algorithmic delivery of news. At present, however, regulation designed to promote media diversity is limited to:
the presence of different types of services through the licensing or authorisation of various categories of broadcasting services (commercial television, community radio etc) and the funding of the national broadcasters
rules governing media ownership
content rules that promote media standards, such as the codes of practice that address accuracy, fairness etc.
Earlier in the subject we also looked at how sector-specific regulation works in conjunction with cross-industry competition regulation, so that the ‘media diversity’ provisions in the BSA sit alongside the law that governs mergers and acquisitions in s 50 of the Competition and Consumer Act.
In 2006 and again in 2017 major changes to the BSA resulted in the repeal of media ownership rules. We’ll look at the 2017 round of changes and how they were connected with the Digital Platforms Inquiry. Since the cross-media ownership rules were removed in 2017, there have only been three core media ownership rules in the BSA:
the rule in s 53 that prevents a person being in position to exercise control of more than one commercial television licence in a single licence area (with an accompanying rule in s 55 that concerns company directors)
the rule in s 54 that prevents a person being in position to exercise control of more than two commercial television licences in a single licence area (with an accompanying rule in s 56 that concerns company directors)
the rule in ss 61AG and 61AH that prohibits transactions that result in an ‘unacceptable media diversity situation’.
Despite there being just these three rules, there is a lot of machinery in the BSA that allows them to function, including a Register of Controlled Media Groups that allows for the calculation of the number of points in each licence area: if a licence area falls below a certain number of points, an unacceptable media diversity situation is said to exist.
We’ll explore all this in class, but there are two important points to remember at the outset:
first, the ownership and control rules only apply to commercial radio licences, commercial television licences and certain ‘associated newspapers’;
second, although we tend to focus on the concept of ‘media ownership’, when applying the law everything comes down to ‘control’ - meaning that the rules depend on more than just the ownership of shares in a company.
Measuring media diversity/pluralism
The fact that Australia’s media ownership rules only apply to commercial radio, commercial television and associated newspapers means - not surprisingly - that they have been the subject of considerable criticism as being outdated and ineffective. In an era of digital platforms, our rules do not even take into account pay TV and news websites.
Despite the limitations of the current Australian rules, there are various dimensions of media diversity - or media pluralism or media plurality as it is also known. As we’ll see, diversity can be characterised in terms of diversity of sources, diversity of content, or diversity of consumption (known as ‘exposure diversity’). The intersecting concepts were on display in Australia during the Senate Inquiry into Media Diversity in Australia which delivered its report in December 2021. Prompted by the call from former Prime Minister Kevin Rudd for a royal commission, the Inquiry heard from many participants and its findings ranged across aspects of media standards (accuracy, fairness etc) as much as ownership and control.
Other jurisdictions have already introduced new rules or schemes to try to deal with the evolving media environment. In the EU there is a comprehensive Media Pluralism Monitor administered by the Centre for Media Pluralism and Media Freedom at the European University Institute. And in the UK, the regulator Ofcom has had in place a Measurement Framework for Media Plurality since 2015.
In Australia, while the Senate Inquiry didn’t have a direct outcome, it probably helped move along the development of a more contemporary policy agenda. At the time the Inquiry commenced, the ACMA had almost completed its own program of work on the subject of News in Australia: Diversity and Localism. Although this was put on hold after Covid-19 led to temporary relaxation in a number of areas, it eventually resulted in the development of the Media Diversity Measurement Framework that was published in late 2023. Following this, the government published its own policy, the News Media Assistance Program (News MAP) in December 2024. Finally, in March 2025, ACMA published the first of its biennial reports, News Media in Australia.
Key pieces of legislation and other forms of regulation
The media ownership and control rules are found in Part 5 of the BSA
(‘Control of Commercial Broadcasting Licences’). The limitations on the number of commercial radio and commercial TV licences in a licence area are known as the ‘statutory control rules’. There are some associated definitions in ss 6, 7 and 8 as well as some licence conditions in Schedule 2. The whole of Schedule 1 is dedicated to the concept of control and how to establish it.
ACMA publishes various registers in association with these rules. Although its Register of Controlled Media Groups is the register it is required to administer under the Act, the Media Control Database is far more useful.
Week 7 - Topic 8: News media and digital platforms
News media and digital platforms
Policy developments
As we’ve noted previously, the Digital Platforms Inquiry (DPI) was initiated after changes were made to the Broadcasting Services Act, removing the remaining cross-media rule as well as a rule that effectively prevented the metropolitan TV networks merging with the regional TV networks. Part of the basis for these changes was the effect that international media and digital platforms was having on local media companies.
In the DPI, the ACCC made findings about the market power of Google and Facebook (now Meta) in certain markets and the bargaining power they have in relation to news referrals. The ACCC recommended that codes of practice, overseen by the ACMA, be developed to address this problem.
The government responded in the Implementation Roadmap in late 2019 with a plan based on a self-regulatory approach, but changed course after six months, with the ACCC designing a statutory intervention by way of the insertion of the News Media Bargaining Code as Part IVBA in the Competition and Consumer Act.
Australia took a leading role in the use of competition law to address the problems encountered by news media companies in their dealings with digital platforms. Since then, Canada has adapted the Australian model for its own environment, and some other jurisdictions have also attempted to regulate digital platforms to support news, either by way of competition law or copyright law.
News Media Bargaining Code
The News Media Bargaining Code is part IVBA of the Competition and Consumer Act. The scheme has two main components, administered by different regulators.
There’s a scheme for registration of news media businesses. This is administered by the media regulator, the ACMA. A business needs to be on the ACMA register in order to have its negotiations with platforms brought under the regulation of the NMBC.
There’s a scheme for bargaining, mediation and arbitration of claims made by news businesses against digital platforms. This is administered by the competition regulator, the ACCC.
A crucial feature of the NMBC is that it doesn’t formally come into effect in relation to any particular digital platform until that platform company is designated by the federal Treasurer. So far, no platform company has been designated; all the deals that took place after the legislation was passed in 2021 were made as private commercial negotiations.
As part of our examination of the NMBC, we’ll look at:
the development of the NMBC
the content of the NMBC and how it works
the review conducted by Treasury, including critical evaluations of the code.
News Bargaining Incentive
Although both Google and Meta made deals with a number of Australian news businesses, in 2024 it became apparent there was a problem with the NMBC. At this time, Meta announced it would not renew its deals when they expired later that year. Meta flagged that it might withdraw news in Australian from its affected platforms if the government proceeded to designate it (which would force Meta into mandatory bargaining with news businesses).
At the end of 2024, the government announced that it would introduce a ‘news bargaining incentive’ which would essentially be a levy on applicable search and social media companies to support news; the levy would be offset by deals the platform made with news businesses. In November 2025, Treasury released a discussion paper seeking feedback on the proposed incentive. Submissions closed on 19 December, with legislation expected in the first half of 2026.
Key pieces of legislation, other forms of regulation, and policy
Competition and Consumer Act 2010 - see Part IVBA—News media and digital platforms mandatory bargaining code
Explanatory Memoranda to Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021
ACCC Concepts Paper and Exposure Draft
Review - Report by Treasury on the Code’s first year of operation