Australian Communications Authority (Service Provider Determination) Direction 2004 (No. 2)

Overview

The Australian Communications Authority (Service Provider Determination) Direction 2004 (No. 2) was enacted to address issues surrounding the provision of adult services through premium SMS or MMS services, and to prevent the supply of prohibited content via such services. This Direction was issued by Daryl Robert Williams, the Minister for Communications, Information Technology and the Arts, under the authority of the Australian Communications Authority Act 1997. The policy objective is to regulate the telecommunications industry to ensure that services that may be deemed inappropriate, particularly for minors, are appropriately classified and restricted through the implementation of specific service provider rules. These rules include requiring adult services supplied via premium SMS or MMS services to be accessible only through designated prefixes, prohibiting the supply of prohibited content via these services, and implementing measures to restrict access to adult services on premium SMS or MMS and proprietary network services.

Scope and Application

The Australian Communications Authority (Service Provider Determination) Direction 2004 (No. 2), made under the Australian Communications Authority Act 1997, applies to service providers engaged in the provision of premium SMS or MMS services, proprietary network services, adult audio-visual services, and adult text services. The Direction imposes obligations on the Australian Communications Authority (ACA) to establish rules governing these services, including the requirement for adult services provided through premium SMS or MMS services to be accessible only via numbers with specific prefixes determined by the ACA. Additionally, the Direction mandates the prohibition of prohibited content, defined as material likely to be classified as RC or X by the Classification Board, from being supplied via premium SMS or MMS services or proprietary network services. The ACA is also required to implement measures to restrict access to adult services provided through these services. The scope of the Direction is national, applying across the Commonwealth of Australia, and it extends to any service providers operating within this jurisdiction. The Direction does not explicitly state exclusions or exemptions, but it is implied that the rules apply broadly to all relevant service providers unless otherwise specified by subordinate instruments or further legislative action.

Key Provisions

The Australian Communications Authority (Service Provider Determination) Direction 2004 (No. 2) mandates that the ACA make a service provider determination under section 99 of the Australian Communications Authority Act 1997, as soon as practicable, in relation to specified matters outlined in paragraphs 3.12(3)(a), (f), (i), and (l) of the Telecommunications Regulations 2001 (paragraph 4(1)). This determination must establish rules requiring adult services provided via premium SMS or MMS services to be accessible only through numbers with specific prefixes determined by the ACA (paragraph 4(2)(a)). Additionally, the rules must prohibit the provision of prohibited content through premium SMS or MMS services or proprietary network services (paragraph 4(2)(b)). Furthermore, the ACA is required to implement measures ensuring that premium SMS or MMS services and proprietary network services restrict access to adult services (paragraph 4(2)(c)). The Act imposes specific obligations on the ACA, including the prompt establishment of rules governing the supply of adult services through premium SMS or MMS services and proprietary network services, ensuring they are only accessible via designated prefixes (paragraph 4(1)). The ACA must also ensure that prohibited content is not provided through these services and that appropriate measures are in place to restrict access to adult services (paragraph 4(2)). These obligations are designed to regulate the content accessible through these services, ensuring they comply with classification standards and restrictions. Violations of the rules established under this Direction may result in both civil and criminal consequences. For instance, providing prohibited content through premium SMS or MMS services or proprietary network services can lead to significant penalties. Under the Telecommunications (Consumer Protection and Service Standards) Act 1999, an entity found guilty of supplying prohibited content may incur penalties, including fines and imprisonment. The exact penalties depend on the nature and severity of the offence, but they underscore the seriousness with which the legislation treats breaches of these content restrictions.