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BROADCASTING SERVICES ACT 1992 - SCHEDULE 7

Content services definitions

   

Note:       See section 216D.

1   Purpose of this Schedule

                   The purpose of this Schedule is to enable:

                     (a)  other Acts; and

                     (b)  other provisions of this Act;

to define certain expressions as having the same meaning as in this Schedule.

2   Definitions

                   In this Schedule:

"access" includes:

                     (a)  access that is subject to a pre-condition (for example, the use of a password); and

                     (b)  access by way of push technology; and

                     (c)  access by way of a standing request.

"adult chat service" means a chat service where, having regard to any or all of the following:

                     (a)  the name of the chat service;

                     (b)  the way in which the chat service is advertised or promoted;

                     (c)  the reputation of the chat service;

it would be concluded that the majority of the content accessed by end-users of the chat service is reasonably likely to be content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021 .

"carriage service" has the same meaning as in the Telecommunications Act 1997 .

class 1 material has the same meaning as in the Online Safety Act 2021 .

class 2 material has the same meaning as in the Online Safety Act 2021 .

"commercial content service" means a content service that:

                     (a)  is operated for profit or as part of a profit-making enterprise; and

                     (b)  is provided to the public but only on payment of a fee (whether periodical or otherwise).

"content" means content:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

                     (c)  whether in the form of speech, music or other sounds; or

                     (d)  whether in the form of visual images (animated or otherwise); or

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms.

"content service" means:

                     (a)  a service that delivers content to persons having equipment appropriate for receiving that content, where the delivery of the service is by means of a carriage service; or

                     (b)  a service that allows end-users to access content using a carriage service;

but does not include:

                     (c)  a licensed broadcasting service; or

                     (d)  a national broadcasting service; or

                     (e)  a re-transmitted broadcasting service; or

                      (f)  a licensed datacasting service; or

                     (g)  a re-transmitted datacasting service; or

                     (h)  an exempt Parliamentary content service; or

                      (i)  an exempt court/tribunal content service; or

                      (j)  an exempt official-inquiry content service; or

                     (k)  an exempt point-to-point content service; or

                      (l)  an exempt internet directory service; or

                    (m)  an exempt internet search engine service; or

                     (n)  a service that enables end-users to communicate, by means of voice calls, with other end-users; or

                     (o)  a service that enables end-users to communicate, by means of video calls, with other end-users; or

                     (p)  a service that enables end-users to communicate, by means of email, with other end-users; or

                     (q)  an instant messaging service that:

                              (i)  enables end-users to communicate with other end-users; and

                             (ii)  is not an adult chat service; or

                      (r)  an SMS service that:

                              (i)  enables end-users to communicate with other end-users; and

                             (ii)  is not an adult chat service; or

                      (s)  an MMS service that:

                              (i)  enables end-users to communicate with other end-users; and

                             (ii)  is not an adult chat service; or

                      (t)  a service that delivers content by fax; or

                     (u)  an exempt data storage service; or

                     (v)  an exempt back-up service; or

                     (x)  a service specified in the regulations.

Note 1:       SMS is short for short message service.

Note 2:       MMS is short for multimedia message service.

Note 3:       For specification by class, see subsection 13(3) of the Legislation Act 2003 .

"content service provider" means a person who provides a content service.

Note:          See clause 5.

"court/tribunal proceedings" means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a court or a tribunal, and includes:

                     (a)  evidence given before the court or tribunal; and

                     (b)  a document presented or submitted to the court or tribunal; and

                     (c)  a document issued or published by, or with the authority of, the court or tribunal.

"exempt back-up service" means a back-up service, where each end-user's access is restricted to the end-user's backed-up content.

"exempt court/tribunal content service" means a service to the extent to which it delivers, or provides access to, content that consists of court/tribunal proceedings.

"exempt data storage service" means a data storage service, where each end-user's access is restricted to the end-user's stored content.

"exempt internet directory service" means an internet directory service that:

                     (a)  does not specialise in providing links to, or information about, websites that specialise in content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021 ; and

                     (b)  is not a service specified in the regulations; and

                     (c)  complies with such other requirements (if any) as are specified in the regulations.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

"exempt internet search engine service" means an internet search engine service that:

                     (a)  does not specialise in providing links to, or information about, websites that specialise in content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021 ; and

                     (b)  is not a service specified in the regulations; and

                     (c)  complies with such other requirements (if any) as are specified in the regulations.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

"exempt official-inquiry content service" means a service to the extent to which it delivers, or provides access to, content that consists of official-inquiry proceedings.

"exempt Parliamentary content service" means a service to the extent to which it delivers, or provides access to, content that consists of Parliamentary proceedings.

"exempt point-to-point content service" means a service that:

                     (a)  delivers content by:

                              (i)  email; or

                             (ii)  instant messaging; or

                            (iii)  SMS; or

                            (iv)  MMS;

                            where the content is produced or packaged by the provider of the service; and

                     (b)  does not specialise in content that is content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021 ; and

                     (c)  is not an adult chat service; and

                     (d)  is not provided on payment of a fee (whether periodical or otherwise); and

                     (e)  is not a service specified in the regulations; and

                      (f)  complies with such other requirements (if any) as are specified in the regulations.

Note 1:       SMS is short for short message service.

Note 2:       MMS is short for multimedia message service.

Note 3:       For specification by class, see subsection 13(3) of the Legislation Act 2003 .

"licensed broadcasting service" means a broadcasting service provided in accordance with:

                     (a)  a licence allocated by the ACMA under this Act; or

                     (b)  a class licence determined by the ACMA under this Act.

"licensed datacasting service" means a datacasting service provided by the holder of a datacasting licence that authorises the provision of that service.

"official-inquiry proceedings" means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of:

                     (a)  a Royal Commission; or

                     (b)  an official inquiry;

and includes:

                     (c)  evidence given before the Royal Commission or official inquiry; and

                     (d)  a document presented or submitted to the Royal Commission or official inquiry; and

                     (e)  a document issued or published by, or with the authority of, the Royal Commission or official inquiry.

"Parliamentary proceedings" means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of:

                     (a)  a Parliament; or

                     (b)  a legislature; or

                     (c)  a committee of a Parliament or legislature;

and includes:

                     (d)  evidence given before the Parliament, legislature or committee; and

                     (e)  a document presented or submitted to the Parliament, legislature or committee; and

                      (f)  a document issued or published by, or with the authority of, the Parliament, legislature or committee.

"re-transmitted broadcasting service" has the meaning given by clause 12.

"re-transmitted datacasting service" has the meaning given by clause 13.

"service" includes a website or a distinct part of a website.

"voice call" includes:

                     (a)  if a voice call is not practical for a particular end-user with a disability--a call that is equivalent to a voice call; and

                     (b)  a call that involves a recorded or synthetic voice.

5   Content service provider

             (1)  For the purposes of this Schedule, a person does not provide a content service merely because the person supplies a carriage service that enables content to be delivered or accessed.

             (2)  For the purposes of this Schedule, a person does not provide a content service merely because the person provides a billing service, or a fee collection service, in relation to a content service.

7   When content service is provided to the public etc.

             (1)  For the purposes of this Schedule, a content service is provided to the public if, and only if, the service is provided to at least one person outside the immediate circle of the person who provides the service.

             (2)  For the purposes of this Schedule, a content service that is provided to the public is taken to be different from a content service that is not provided to the public, even if the content provided by the services is identical.

9   Services supplied by way of a voice call or video call

                   If a service is supplied by way of:

                     (a)  a voice call made using a carriage service; or

                     (b)  a video call made using a carriage service;

the service is taken, for the purposes of this Schedule, to be a content service that allows end-users to access the relevant content using the carriage service.

12   Re-transmitted broadcasting services

             (1)  For the purposes of this Schedule, a service is a re-transmitted broadcasting service if the service does no more than:

                     (a)  re-transmit programs that have been previously transmitted by a licensed broadcasting service; or

                     (b)  re-transmit programs that have been previously transmitted by a national broadcasting service.

             (2)  In determining whether a service is a re-transmitted broadcasting service:

                     (a)  ignore any changes to the format in which the programs are transmitted; and

                     (b)  ignore any advertising or sponsorship matter; and

                     (c)  ignore such other matters (if any) as are specified in the regulations.

13   Re-transmitted datacasting services

             (1)  For the purposes of this Schedule, a service is a re-transmitted datacasting service if the service does no more than re-transmit datacasting content that has been previously transmitted by a licensed datacasting service.

             (2)  In determining whether a service is a re-transmitted datacasting service:

                     (a)  ignore any changes to the format in which the datacasting content is transmitted; and

                     (b)  ignore any advertising or sponsorship matter; and

                     (c)  ignore such other matters (if any) as are specified in the regulations.

17   Extended meaning of use

                   Unless the contrary intention appears, a reference in this Schedule to the use of a thing is a reference to the use of the thing either:

                     (a)  in isolation; or

                     (b)  in conjunction with one or more other things.



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