Regulation of audio-visual media

Licensing of broadcasting

The key regulatory framework is the licensing and regulation of broadcasting by the Australian Communications and Media Authority (ACMA) under the Broadcasting Services Act 1992 (Cth) (BSA). There are various licences, for example, commercial free-toair television and radio and international broadcasting services delivered from Australia.

Radiofrequency spectrum is regulated separately by the ACMA primarily under the Radiocommunications Act 1992 (Cth).

Licence conditions vary and they regulate matters such as Australian content quotas, classification and advertising.

The BSA also regulates cross-ownership of television, radio and newspaper assets. A person cannot currently have control of:

The BSA also regulates cross-ownership of television, radio and newspaper assets. A person cannot currently have control of:

  • commercial television broadcasting licences reaching more than 75% of the Australian population (75% rule);
  • more than one commercial television broadcasting licence in a licence area;
  • more than two commercial radio broadcasting licences in a single radio licence area; or
  • a commercial television licence, a commercial radio licence and an associated newspaper in the one commercial radio licence area (2/3 rule).

Amendments to the BSA

 The Senate recently passed reforms to the BSA under the Broadcasting Legislation Amendment

(Broadcasting Reform) Bill 2017 (BSA Reforms) which will change key aspects of the crossownership of television, radio and newspaper assets.

The 75% rule and the 2/3 rule will be repealed when the BSA Reforms take effect. We anticipate that these reforms will come into effect sometime in the next 12 months.

Regulation of telecommunication, information and data

Licence authorisations

The Australian telecommunications licensing regulation distinguishes between:

  • carriers – being entities that own telecommunications infrastructure (generally, line links or certain radiocommunication facilities);
  • carriage Service Providers (CSPs) – being entities that supply carriage services using another carrier’s infrastructure; and
  • content service providers.

Carriers must be individually licensed by the ACMA. CSPs and content service providers are not required to be licensed – but must comply with certain regulatory obligations, most of which are set out in the Telecommunications Act 1997 (Cth) (Telecommunications Act). For example, carriers and CSPs must give “reasonably necessary” assistance to authorities for law enforcement and national security purposes and CSPs who supply a standard telephone service must provide itemised billing.

Carriers and CSPs also have obligations under the Telecommunications (Interception and Access) Act 1979 (TIA) to ensure that their networks and facilities have interception capabilities to assist law enforcement agencies to execute warrants issued under the TIA.

If your business owns or operates telco infrastructure in Australia, it might require a licence. If your business is using a third party’s infrastructure to provide services, then various regulatory obligations will still apply.

Amendments to the Telecommunications Act

The Federal Government has passed amendments to the Telecommunications Act to strengthen the

current framework for managing national security risks to Australia’s telecommunications networks, including introducing an obligation on carriers and CSPs to “do their best” to protect their networks

from interference and to inform the Government about network changes and procurement intentions.

The amendments will likely take effect in the next 12 months.

Data breach notification

If your business has a turn-over of more than A$3 million per year, the new data-breach regime will apply

(expected to come into effect on 22 February 2018).Under the regime, an entity is required to notify the Privacy Commissioner and affected individuals if there is a data breach that is likely to result in serious harm (subject to certain exemptions). Notices must include details about the organisation, information about the breach and the records affected, and recommendations for affected individuals to protect themselves from harm.

Australian entities disclosing to an offshore recipient may be liable to prepare a notice for an eligible data breach that occurs in respect of the offshore recipient.

Data retention

The TIA requires carriers and CSPs to retain a prescribed set of telecommunications data (including information about the communication such as source, destination, date, time, type of communication but not including the contents or the substance of the communication) for at least two years. Data relating to web-browsing history is not required to be retained.

Comms information

Carriers and CSPs are subject to regulation around how they can use and disclose information about their customers and the substance of communications under Part 13 of the Telecommunications Act. This sort of information may only be used and disclosed in limited circumstances set out in the Telecommunications Act.