Restricted access systems in relation to R 18+ content require proof of age and, in any event, must apply to the content itself and not to a link to the content.

After ACMA issued a final link-deletion notice to EFA in relation to the AbortionTV website, it came out that the Classification Board had classified the relevant page R 18+. A number of people have suggested that you could still link to the AbortionTV website if you made the link subject to a restricted access system.

There are two problems with this under the current system in Schedule 7 of the Broadcasting Services Act 1992 (Cth).

First, a restricted access system in relation to R 18+ content must require applicants for access to that content to provide proof of their age, not merely a declaration. Users aren’t going to hand out valid credit card numbers or copies of their birth certificates just to view links.

Second, the restricted access system must apply to the R 18+ content itself, and not to the link to the R 18+ content. That is, R 18+ content that’s not subject to a restricted access system is prohibited content. A link that’s subject to a restricted access system that points to R 18+ content that’s not subject to a restricted access system is still a link to prohibited content.

The test that ACMA applies when determining whether to issue a link-deletion notice is whether there is a link hosted in Australia that points to prohibited content. It’s not relevant whether the link itself is subject to a restricted access system or not.

I have provided details below.

Proof of Age

Under clause 14, ACMA has power to declare what is a ‘restricted access system’ in relation to particular classes of content. The most recent declaration is the Restricted Access System Declaration 2007.

Among seven requirements for restricted access systems in relation to R 18+ content, clause 13 provides—

• (1) Unless subsection 14(2) or (3) applies, the access-control system must verify that the applicant is at least 18 years of age by:
  • (a) requiring the applicant to provide evidence that the applicant is at least 18 years of age; and
  • (b) applying the risk analysis described in section 15.

So, a restricted access system in relation to R 18+ content must require proof of age, not merely a declaration. Note that subsections 14(2) and (3) merely provide that the access-control system need not verify the applicant’s age more than once.

What types of evidence? Clause 15(2) provides—

• The risk analysis must identify and assess the risk that a kind of evidence of age submitted to the access-control system could be held or used by:
  • (a) a person other than the person it purports to identify; or
  • (b) a person who is younger than the age which the form of evidence attributes to the person being identified.

Examples of sufficient evidence might include valid credit card numbers or copies of birth certificates, which, of course, users won’t be willing to provide to just any website.

Restricted Access Systems Don’t Relate to Links

Clause 20(1) states that content is ‘prohibited content’ if, among other alternatives—

• (b) both:
  • (i) the content has been classified R 18+ by the Classification Board; and
  • (ii) access to the content is not subject to a restricted access system

From this, it’s clear that R 18+ content is prohibited content only if it’s not subject to a restricted access system. Division 5 then requires ACMA to issue link-deletion notices where—

• (a) end-users in Australia can access content using a link provided by a links service; and
• (b) the content is prohibited content; and
• (c) the links service has an Australian connection

So, the test is whether the content that is linked to is prohibited content, not whether the link itself is prohibited content.

If the content linked to were classified R 18+ and were subject to a restricted access system, then it wouldn’t be prohibited content and no link-deletion notice would be issued for the link.

However, if the content linked to were classified R 18+ but weren’t subject to a restricted access system, then it would be prohibited content and a link-deletion notice would be issued for the link. Here, it’s irrelevant whether the link itself is subject to any restricted access system.

In other words, the test for issuing a link-deletion notice is not whether you have a link that’s not subject to a restricted access system to R 18+ content. It’s whether you have a link to R 18+ content that’s not subject to a restricted access system.

There are only two scenarios for linking to the AbortionTV content that won’t risk a link-deletion notice. First, you can host the link itself outside of Australia. Then, the links service won’t have an ‘Australian connection’. Second, you can ask AbortionTV to require visitors to prove that they’re over 18. That won’t happen.