Leave streaming content out of censorship regime

Dr Eric Crampton
The National Business Review
17 December, 2017

The season for gathering the family around the television for uplifting Christmas movies is rapidly approaching. But be a little careful out there. The government’s proposed digital convergence legislation remains on hold, and so things are a little messy.

Suppose that you, like me, wanted to re-watch the greatest Christmas movie ever made, Die Hard. In that late ‘80s action thriller, Bruce Willis’s John McClane faces down what appears to be a Christmastime terrorist threat from German anarchists, but is really a more conventional heist of bearer bonds worth hundreds of millions. But while all the action plays out and McClane gets ever closer to his final two bullets, a touching story of holiday family reunification plays out. There’s something for everyone.

Neither Sky nor Freeview have yet released their Christmas programming schedules, so we do not know whether it will air.

If you watch Die Hard with the family on broadcast, you will be committing no crime. But you could be if you rent it from the video shoppe.

Broadcast television is regulated by the Broadcast Standards Authority. Adults Only content cannot air before 8.30 pm, when the kiddies are presumably to bed. But if you want to keep the kids up late, that is up to you.

DVD content, along with content that airs in cinemas, is regulated differently. The 1988 version of Die Hard that aired in cinemas is rated M, but the current 25th Anniversary Legacy Edition is rated R-13 for violence and offensive language. An R-13 rating means watching it with your twelve-year-old could send you to jail for up to three months or deliver you a fine up to $10,000. And if the video store knew your plans, they could be fined too.

Falling between
It is unlikely anyone would ever prosecuted for watching Die Hard with the kids – the provision is mostly there to keep adults from grooming children for sexual abuse. But it is at least odd that it is formally illegal to watch one version of Die Hard on Blu-Ray with the family. And there’s a surprising amount of content that would be legal to watch with the family on broadcast, but illegal to watch on DVD.

Streaming content falls between the two. When Netflix and Lightbox were getting started in New Zealand, the Censor’s Office asserted jurisdiction over streaming content.

Since then, the legal position has clarified. Streaming content does not fall under the jurisdiction of the OFLC, or at least not entirely. Streaming sites do not need to seek New Zealand ratings for their content. But the Censor’s Office can call in contentious content for classification, like Netflix’s recent 13 Reasons Why series. The outcome was reasonable. Netflix provided warnings about the show that suited a New Zealand audience.

But nobody knows quite what would happen if a smaller streaming site, based abroad, decided not to answer the phone if New Zealand’s Chief Censor asked for a chat.

The discrepancy between the legal regimes for broadcast, streaming, and cinematic content is part of the basis for the government’s digital convergence review.

But Minister Curran should think more broadly about whether there is an appropriate role for censorship regimes in digital environments. Barring cases like child pornography, does it really make sense to restrict access to digital content through regulation backed by legal penalties?

Traditional classification regimes solved a problem of their time. The BSA works for televised content. Broadcasters’ content warnings help prevent angry phone calls from parents. Watershed hours can make sense in a world where viewing is restricted to what happens to be on television at the time. Content ratings at the cinema similarly solve an information problem - viewers might otherwise find out too late that the content is not quite what they expected.

Diversity of views
Streaming content is different. The same technology that brings thousands of programmes at a mouse-click provides a host of ways for viewers to tell what is on offer. The Internet Movie Database warns me about the violence and language in Die Hard. The Common Sense Media website suggests Die Hard is great for those aged 16 and up, but parent ratings on the same site say 13 and up, and kids themselves there said it should be fine for those aged 12 and up.

But what is really interesting is the diversity of views among parents – and kids – on the appropriate viewing age. One twelve-year-old said it should be fine for those aged 8 and up; another said 13+.

Shoehorning streaming content either into the Broadcast Standards regime, or into OFLC classification, would not work well. Too many smaller niche foreign streaming sites would be frozen out of New Zealand if they had to deal with the BSA.

Imposing high classification costs on niche content through the OFLC regime risks hindering Kiwis’ access to content. And neither regime makes much sense when ample information about any film’s content is available from the streaming sites themselves, and from a host of others.

The regulations do need to be modernised. The censorship regime overall should rely more heavily on available RP ratings, which leave more room for parental discretion. But if the current regulatory hole for streaming content were not plugged, would that be so bad?

I don’t think our kids are quite ready for Die Hard. But when the time comes, we won’t be checking for permission with the Censor before we stream it. Yippekyay.

Stay in the loop: Subscribe to updates