Additional comments from Senator David Pocock

1.1I welcome the opportunity to provide additional comments to the Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023.

1.2The opportunity to consider this Bill has provided an intriguing look at the complex web of interests that govern what people see on their TVs and when they see it.

1.3The nature of TVs has clearly changed. TV manufacturers no longer just make hardware, they sell the real estate that appears on their screens, with every inch increasingly being commercialised and monetised.

1.4From evidence given to the Committee, it seems that even the preloading of an app on a TV or the ability to find it in an app store has become commercial in nature. According to ABC Managing Director David Anderson:

In 2021, we lost preloading of our app on a major manufacturer and were asked for payment to restore it. And that’s not the first time that has happened to us. On principle, we haven’t paid.[1]

1.5Free TV broadcasters, including our public broadcasters, generally do not have the same funds as the large multinational subscription or streaming services, and as such they have become less visible and less discoverable as they are priced out of the market.

1.6Free TV broadcasters provide services in the public interest. Among other things, they provide Australians with vital news programming, local stories and content that promotes and reflects our evolving national personality. We also pay for much of the content that appears on our public broadcasters.

1.7I agree with the Committee that market intervention is justified to protect the public interest and ensure Australians can continue to access free programming on their TVs.

1.8I have also not been convinced by the evidence from TV manufacturers that this Bill would put an exceptional burden on manufacturers to deliver Australian‑specific requirements on their TVs. Manufacturers already have Australian-specific obligations that they must meet, such as the parental lock standard—a technical standard made by the ACMA under the Broadcasting Services Act 1992.

1.9I support the Bill and concur with the Committee’s recommendations. If the recommendations are accepted by the Government, and the Bill is amended accordingly, I believe it will have achieved a good outcome in protecting the public interest while intervening into the market as lightly as is necessary.

1.10Below I make some additional comments and recommendations both supporting the Committee’s recommendations and highlighting additional areas of concern.

Extension of the free TV codes of practice to BVODs

1.11I commend the Committee for recognising the need to extend the free TV codes of practice to BVOD apps, including 10Play, 7plus, 9Now and SBS On Demand.

1.12The Bill offers market protection to these apps, in recognition that more Australians are watching free TV via these apps.

1.13However, unlike with linear channels, these apps are not subject to any public interest requirements. Indeed, as the Broadcasting Services Act 1992 only regulates broadcast signals across the terrestrial network, there is no requirement that even livestreams on these apps mirror what is shown on linear channels.

1.14If we are to offer market protection to these apps in the public interest, then these apps should also carry the same public interest obligations as the linear channels, as outlined in the codes of practice. These requirements aren’t frivolous, covering quite serious matters related to editorial integrity and the broadcasting of content that is likely to offend or distress, among other things.

1.15One of the glaring differences is the advertising requirements. While the requirements for gambling ads are the same, courtesy of recent reforms in this area, the differences for alcohol advertising between linear channels and BVODs are stark.

1.16There are no rules or guardrails governing what time an alcohol ad can be shown on a BVOD. This means alcohol ads can—and have—been viewed during programs, and at times, where children and young Australians are likely to be watching.

1.17To give one example, in 2021, the Alcohol Beverages Advertising Code (ABAC) Adjudication Panel (the Panel) were referred three complaints about alcohol ads that were shown during The Voice on 7plus.[2]The Voice is a PG program and one of the complainants noted that they and their children had seen the ad at around 6 pm.

1.18The Panel, the industry self-regulatory body, was unable to find that the ads had breached standards, as among other things, advertising shown on a BVOD is not subject to the Free TV Code of Practice and therefore not subject to any time‑based restrictions.

1.19If the Free TV Code of Practice had applied, these ads would not have been able to be shown, as the Code functionally prohibits advertising of alcoholic drinks prior to 8.30 pm in the evening (some exceptions apply).

1.20I commend the recommendation of the Committee to extend the codes of practice to BVODs and believe this represents a sensible mechanism to extend some very basic guardrails to these apps that facilitate programming that meets community standards.

1.21There are other differences in requirements between BVODs and linear channels that will not be addressed through the extension of the codes of practice to BVODs, however I am satisfied these differences are being addressed through other reforms.

1.22To give an example, the election blackout rules, which prohibit election ads being broadcast for three days prior to an election, are different between linear channels and BVODs. I recognise that this issue is larger than just BVODs and that the Joint Standing Committee on Electoral Matters has recommended the removal of media blackout laws altogether, contingent on the Australian Government introducing truth in political advertising laws.

Radio prominence

1.23Like free TV, radio is also at-risk of being deplatformed over the decade.

1.24Changing consumer behaviours will be what they will be, and the radio industry has shown it’s capable of keeping up, but we must ensure that consumers can still find the stations they want to listen to; that they’re still presented as options.

1.25We should not forget that radio also provides services in the public interest. They have quotas to play Australian music, and in the shrinking pool of news media, radio are among the last to still be providing local content and news bulletins in regional and remote areas. As taxpayers, we help to subsidise these public interest functions through relatively cheap access to the airwaves—a public asset.

1.26The entertainment systems in cars are changing quickly, with many of us now listening to radio, streaming services and audiobooks through connected devices, meaning the gatekeepers of content in the car are now OS providers, including Apple and Google.

1.27Commercial Radio & Audio has submitted that the consequences of changing technologies, both in cars and by way of smart speakers, is only just beginning to emerge, with different providers requiring pay for play arrangements for stations or apps to be surfaced.

1.28This mirrors the issues with TV, and if we accept that radio also provides a public interest function, then I believe intervention should be considered to ensure Australians can continue to easily access their local station.

1.29I feel this is particularly important for the community radio sector, which lacks the financial resources to bargain with multinational technology providers, like Apple and Google.

1.30While a prominence regime could be easily implemented for smart speakers, I recognise the issue of cars is more complicated, involving significantly more interests and touchpoints. Further policy development is needed, and therefore I am supportive of the Committee’s recommendation for the Minister to ask the Department to treat this as a priority, noting a previous commitment from the Minister to undertake a consultation on this matter.

1.31While the recommendation highlights smart speakers, I feel the issues with access to radio in cars is equally as pressing and should form part of that consultation.

1.32That the Australian Government prioritise the implementation of a radio prominence scheme for both smart speakers and vehicles.

Implementation timeframe

1.33Similar to the Committee, I am also not convinced by the evidence presented from manufacturers that an 18-month transition period is required, when some of the changes could clearly be made effectively overnight through a server update.

1.34I therefore concur with the Committee’s recommendation for the Minister and the ACMA to provide options for a phased approach or a reduction to a 12‑month timeframe, if not shorter.

Extension of prominence requirements to search

1.35The Bill unfortunately does not resolve the issues that have been raised in relation to the discoverability of free content via search functions.

1.36The quintessential example is Bluey. This is a show that we have already paid for through our taxes and is freely available to us all through the ABC iView app. Despite evidence given at the Inquiry, if you search for Bluey on a TV, you may not receive ABC iView as an option, and instead may only receive links to YouTube or AppleTV where you have to pay for play. It depends on the TV you have.

1.37RMIT has exhaustively researched and tested the discoverability and visibility of free TV content on smart TVs, including via the search function. To cite their conclusion on this, offered in a submission to this inquiry:

We found that major smart TV brands are either not including Australian BVODs and their content in recommendations, or are only featuring content from partnered apps. This exacerbates the visibility challenge for Australian free TV on BVODs.[3]

1.38This is an issue that should be addressed. If there’s a free option, it shouldn’t be hidden from view, even if it is not preferenced.

1.39By not addressing this issue, I suggest we will be entrenching a situation where large global commercial arrangements dictate what is surfaced in search results, rather than what is relevant. This will inevitably lead to free TV broadcasters, including the ABC and SBS, being priced out, limiting the discoverability of their content.

1.40However, I recognise that this is complex and that there are valid reasons from a consumer-perspective for search results to not return a free result. The example that was given at the Inquiry was Fisk, which is available on both Netflix and ABC iView.

1.41If you ask your TV to play Fisk, it is a better consumer experience if it can identify which service you may have already been watching it on and to return that result—so you can resume playing, rather than having to restart it on a different service. Simply, if you had started watching Fisk on Netflix, you would want it to just return—and start playing—the Netflix result. That is appropriate, and is one example of where any intervention needs to be calibrated so it doesn’t impact on consumer experience.

1.42Given how rapidly technology evolves in this space, it is unlikely that any reforms to search on connected TVs would be expressed in primary legislation. Standards related to search are more likely to be expressed in delegated legislation, so they can be updated more quickly to keep pace with tech developments. Therefore, I suggest it’s not necessary for the Government to return to the Parliament with legislation at a later time to just give the Government a power to create that delegated legislation. If it is accepted that this is an issue that needs to be resolved, I suggest a power could be added to this Bill to allow the Government to create standards in relation to search, with the Parliament providing scrutiny and oversight through its standard disallowance processes.

1.43That the Australian Government consult on options to address recommendation bias against free TV broadcasters in search results and that the Bill be amended to grant the Minister a disallowable rule-making power to introduce minimum requirements relating to search.

Senator David Pocock

Participating member

Footnotes

[1]Mr David Anderson, Managing Director, Australian Broadcasting Company (ABC), Committee Hansard, 23 February 2024, p. 2.

[2]Alcohol Beverages Advertising Code, Adjudication Panel Determination Nos 214, 221 & 226/21, 11October 2021.

[3]RMIT University, Submission 6, p. 23.