Films, Videos, and Publications Classification (Commercial Video on-Demand) Amendment Bill

Films, Videos, and Publications Classification (Commercial Video on-Demand) Amendment Bill

Government Bill

201—1

Explanatory note

General policy statement

The objective of this Bill is to reduce the potential for harm to consumers from viewing inappropriate content. The Bill will do this by requiring that commercial video on-demand (CVoD) content that is made available in New Zealand display appropriate and consistent labelling, if the provider is specified in the Schedule to the Bill. This labelling will provide information about that content’s rating and a description so that consumers can make an informed decision on whether to view it.

Providers of commercial (subscription and transactional) video on-demand content are displaying inconsistent ratings and descriptive notes (or no ratings at all) for content available on their platforms. This is because of the gap in current legislation where on-demand online content in New Zealand is not subject to mandatory rating requirements, as films for cinematic or DVD release are. This Bill will ensure that consumers see more consistent ratings and descriptive notes across the main CVoD platforms in New Zealand.

The Bill will amend the Films, Videos, and Publications Classification Act 1993 (the Act) to clearly address the identified regulatory gap. Key changes that the Bill will implement are set out below.

Requirements for specified CVoD providers to label content before it is available in New Zealand

Providers of CVoD content will be required to comply by—

  • following the current process for the labelling of a film. This involves providing content to the Film and Video Labelling Body (the labelling body) for rating and labelling. The labelling body will refer certain content to the Office of Film and Literature Classification (the Classification Office) for classification, before issuing a label; or

  • self-rating content that they make available using systems that have been approved by the Classification Office. This can be achieved either by using the Classification Office’s rating tool or using their own system, with approval from the Classification Office.

Once content is labelled under the Act, that label must be used by any other provider providing that content. These labelling decisions can be reconsidered by the Classification Office where necessary.

Establishment of criteria and process to identify and list regulated providers

Providers that are required to comply under the new requirements will be listed in a schedule of the Act. The schedule can be amended by an Order in Council, with the final decision being made by the Governor-General on the recommendation of the Minister of Internal Affairs.

The Minister will need to consult the Chief Censor before making a recommendation to amend the schedule. The Minister’s recommendation will be based on an assessment of the potential risk of harm to consumers from CVoD content being made available without appropriate labels.

The Bill sets the following criteria that the Minister must consider in determining the potential risk of harm:

  • market presence—the share of the New Zealand market that a provider currently has or is expected to have; and

  • nature of content—the nature of content being offered by a provider, or intended to be offered by a provider, and the potential of that content to cause harm to consumers; and

  • compliance with and commitment to another recognised classification framework in New Zealand—whether a provider is using a classification framework that is recognised as being effective in ensuring that consistent and appropriate information is provided to consumers, and the extent and reliability of the provider’s commitment to that framework.

Updated functions of Classification Office

The Bill will update the functions of the Classification Office to ensure that the new requirements for CVoD content are clearly within the scope of its operational work. The Classification Office will have the following new functions and powers:

  • providing an online rating tool that specified CVoD providers may use to rate and label content they make available; and

  • approving self-rating systems that are developed by specified CVoD providers to rate and label their content; and

  • reviewing and monitoring the operation and outputs of both the online rating tool and any self-rating systems.

Amendment to definition of film to clarify that it includes video on-demand content

Video on-demand content falls within the existing definition of a publication, but does not clearly fall within the definition of a film (which is a subset of publications).

The Bill replaces the definition of film in the Act to clarify that it includes video on-demand content. (CVoD is a subset of video on-demand content that is made available to consumers on a subscription or transaction basis.)

Clarifying that video on-demand content is a film means that the requirements in relation to classifying and rating films will apply to any video on-demand content that is not specifically exempted from those requirements (eg, video on-demand content that is not provided by a specified CVoD provider is exempted through an amendment to section 8). The Classification Office’s powers in respect of publications (eg, complaints process, enforcement provisions, and offences and penalties) will also apply.

Anticipated introduction of new fees for use of CVoD rating and labelling tools

The new regime introduced by the Bill will also permit new fees to be set for the use and review of CVoD rating and labelling tools.

Fees under the Act are set in the Films, Videos, and Publications Classification (Fees) Regulations 1994. Work is underway to update the fees framework, including the level of the CVoD fees for specified CVoD providers.

Departmental disclosure statement

The Department of Internal Affairs is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Department of Internal Affairs produced a regulatory impact assessment on 25 November 2019 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 sets out when the Bill will come into force. The substantive amendments that create the new requirements to rate and label commercial video on-demand content made available by specified CVoD providers will come into force on 1 January 2021. However, the following provisions come into force earlier, on 1 July 2020:

  • the machinery clauses that set out the title, commencement, and principal Act details:

  • the amendments to the interpretation provision set out in clause 4(1) that insert new defined terms relating to video on-demand:

  • the new provisions that insert a schedule of transitional provisions (which provides for rating decisions made under the broadcasting codes to be treated as ratings made under new Part 3A):

  • the provisions that insert new Schedule 4 (which lists specified CVoD providers), and that enable that schedule to be amended by Order in Council.

Clause 3 states that the Bill amends the Films, Videos, and Publications Classification Act 1993 (the principal Act).

Part 1New rating and labelling requirements for specified providers’ commercial video on-demand content

Clause 4 amends section 2 (which defines terms used in the Act) to insert new definitions of approved self-rating system, CVoD online rating tool, commercial video on-demand content, self-rating tool, specified CVoD provider, and video on-demand content. It also amends the definition of film to provide that video on-demand content comes within the definition. This will have the effect that the existing requirements that apply in relation to classifying and rating films apply to video on-demand content (unless an exemption applies).

The definition of specified CVoD provider refers to new Schedule 4 (inserted by clause 10). That schedule lists the companies to whom the new requirements will apply. The definition ensures that subsidiaries and affiliated companies of the listed companies are also specified CVoD providers if they provide commercial video on-demand content in New Zealand. The companies listed in new Schedule 4 are—

  • Alphabet Inc., a company registered and based in the United States of America (which is the parent company of Google LLC which provides the Google Play service):

  • Amazon.com, Inc., a company registered and based in the United States of America (which provides Amazon Prime Video through an affiliate):

  • Apple Inc., a company registered and based in the United States of America (which provides Apple TV+ and iTunes services);

  • Lightbox New Zealand Limited, a company registered and based in New Zealand:

  • Microsoft Corp, a company registered and based in the United States of America (which provides Microsoft Films and Television):

  • Netflix, Inc., a company registered and based in the United States of America:

  • Sky Network Television Limited, a company registered and based in New Zealand (which includes its division that provides NEON):

  • Sony Interactive Entertainment Europe Limited, a company registered and based in the United Kingdom (which provides the PlayStation Store service):

  • The Walt Disney Company, a company registered and based in the United States of America (which includes its business unit that provides Disney+).

Clause 5 inserts new section 4A, which is about new Schedule 1AA (transitional, savings, and related provisions) inserted by clause 9.

Clause 6 amends section 8, which lists certain types of film that are exempt from labelling requirements. The amendment adds to that list any video on-demand content made available by a person who is not a specified CVoD provider. The effect of this amendment is that the requirements to rate and label video on-demand content will only apply to the providers listed in new Schedule 4. Section 8(2) currently provides that the Chief Censor may require films that would otherwise be exempt to be labelled. An amendment is also made to that subsection to clarify how it applies in the case of video on-demand content. If video on-demand content is made available, or proposed to be made available, in New Zealand by a person who is not listed in new Schedule 4, the Chief Censor may require the person to apply for the issue of a label in respect of that content.

Clause 7 inserts new Part 3A, which deals with rating and labelling commercial video on-demand content made available by specified providers.

New section 46A provides that the requirements in the Act and regulations apply in respect of commercial video on-demand content that is made available in New Zealand by specified CVoD providers, even if those providers are not resident or incorporated in New Zealand.

New section 46B imposes a duty on specified CVoD providers to rate and label the commercial video on-demand content that they make available in New Zealand. It sets out the following 3 methods that a CVoD provider may use to comply:

  • rating and labelling the content using an approved self-rating system; or

  • rating and labelling the content using the CVoD online rating tool provided by the Classification Office; or

  • applying to the labelling body for the issue of a label.

New section 46C applies if commercial video on-demand content has previously been rated. It requires specified CVoD providers and the labelling body to apply the same rating, classification, and description to the content.

New section 46D requires a specified CVoD provider who is self-rating video on-demand content that has not previously been rated to—

  • label the content in accordance with the rating generated by the self-rating tool; or

  • if the tool identifies the content as potentially being objectionable, refer the content to the Classification Office for classification.

New section 46E provides for specified CVoD providers to apply to the Chief Censor for approval of a system to rate and label commercial video on-demand content. The Chief Censor may enter into an agreement with a specified CVoD provider that sets out the terms and conditions on which the provider is approved to use their own system to rate and label the content they make available in New Zealand.

New section 46F requires the Classification Office to annually review specified CVoD providers’ use of self-rating systems, and enables regulations to prescribe fees to be paid by the providers to meet the cost of those reviews.

New section 46G provides that any person may complain to the Chief Censor about the rating that a specified CVoD provider has assigned to commercial video on-demand content. The Chief Censor may refer a complaint to the provider, or classify the content, or refuse to take action if the Chief Censor considers the content has been correctly rated.

Clause 8 inserts a new provision that allows the list of persons who are specified CVoD providers in new Schedule 4 to be amended by Order in Council, made on the recommendation of the Minister. Before making an Order in Council, the Minister must consult the Chief Censor. The main criterion for recommending an order amending new Schedule 4 is whether the deletion or addition of a person’s name will increase or reduce the risk of harm to viewers of commercial video on-demand content made available by the person.

Clause 9 inserts new Schedule 1AA (transitional, savings, and related provisions). See also new section 4A inserted by clause 5.

Clause 10 inserts new Schedule 4, which lists the commercial video on-demand providers to whom the new rating and labelling requirements will apply.

Part 2Related amendments

Clause 11 amends section 6, which deals with labelling of films. The amendment clarifies that the section applies to video on-demand content that is made available to persons in New Zealand.

Clause 12 amends section 9, which deals with applications to the labelling body for the issue of a label. The amendment clarifies that the section does not apply to commercial video on-demand content that a specified CVoD provider has already rated using a self-rating tool.

Clause 13 replaces section 36(2), which deals with the issue of labels in cases where the Classification Office has examined a film. The amendment makes it possible for the Classification Office to direct a specified CVoD provider to issue a label.

Clause 14 amends section 77 to add the following new functions of the Classification Office:

  • to develop, provide, and maintain the CVoD online rating tool for use by specified CVoD providers:

  • to approve self-rating systems developed by specified CVoD providers:

  • to review the use of self-rating tools by specified CVoD providers.

Clause 15 amends section 121, which creates an offence for issuing labels that may cause a person to believe they were issued under this Act when they were not. The amendment ensures that specified CVoD providers using approved self-rating systems are excluded from the offence provision.

Clause 16 amends section 122, which defines the term “distribute”. The amendment is to an example and is designed to make it clear that the terms “provide access” and “make available”, when used in the Act, mean the same thing.

Hon Tracey Martin

Films, Videos, and Publications Classification (Commercial Video on-Demand) Amendment Bill

Government Bill

201—1

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Films, Videos, and Publications Classification (Commercial Video on-Demand) Amendment Act 2020.

2 Commencement

(1)

Sections 4(2), 6, 7, and 11 to 16 come into force on 1 January 2021.

(2)

The rest of this Act comes into force on 1 July 2020.

3 Principal Act

This Act amends the Films, Videos, and Publications Classification Act 1993 (the principal Act).

Part 1 New rating and labelling requirements for specified CVoD providers’ commercial video on-demand content

4 Section 2 amended (Interpretation)

(1)

In section 2, insert in their appropriate alphabetical order:

approved self-rating system means a system approved by the Classification Office under section 46E that is to be used by a specified CVoD provider to rate and label the provider’s commercial video on-demand content

commercial video on-demand content means video on-demand content that is made available to persons in New Zealand for a fee or other consideration, whether or not it is packaged with another service

Examples

A movie that can be downloaded from the Internet by a person who pays a one-off fee to access that movie.

A series made available to a person who paid a subscription fee for access to a catalogue of content to be accessed through a computer or other electronic device.

A short film made available to a person who has been given access to a catalogue of online content as part of a package of services supplied by an Internet provider.

CVoD online rating tool means the online rating tool provided by the Classification Office for use by specified CVoD providers to rate their commercial video on-demand content

self-rating tool means—

(a)

an approved self-rating system:

(b)

the CVoD online rating tool

specified CVoD provider means—

(a)

a company listed in Schedule 4, to the extent that the company makes commercial video on-demand content available in New Zealand whether directly (including through a division of the company) or indirectly through a subsidiary or an affiliated company; and

(b)

a subsidiary or affiliated company of a company listed in Schedule 4, if that subsidiary or affiliate makes commercial video on-demand content available in New Zealand

video on-demand content means content, in the form of visual images produced electronically and shown as a moving picture, that is made available to persons on-demand using a computer or other electronic device

(2)

In section 2, replace the definition of film with:

film

(a)

means a cinematograph film, a video recording, and any other material record of visual moving images that is capable of being used for the subsequent display of those images, and includes any part of any film, and any copy or part of a copy of the whole or any part of a film; and

(b)

includes video on-demand content

5 New section 4A inserted (Transitional, savings, and related provisions)

After section 4, insert:

4A Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

6 Section 8 amended (Films exempt from labelling requirements)

(1)

After section 8(1)(q), insert:

(r)

any video on-demand content made available by a person who is not a specified CVoD provider.

(2)

Replace section 8(2) with:

(2)

The Chief Censor may, at any time, require any person to make an application under section 9 for the issue of a label in respect of a film of a class mentioned in subsection (1) if,—

(a)

in the case of video on-demand content, the person has made the content available to persons in New Zealand, or proposes to do so; or

(b)

in any other case, the person has exhibited or supplied the film to the public, or proposes to do so.

7 New Part 3A inserted

After section 46, insert:

Part 3A Rating and labelling requirements for specified CVoD providers’ commercial video on-demand content

46A Extraterritorial application to specified CVoD providers

This Act, and any regulations made under it, apply in respect of commercial video on-demand content that is made available in New Zealand by a specified CVoD provider, regardless of whether the provider is resident or incorporated in New Zealand or outside New Zealand.

46B Duty to rate and label commercial video on-demand content

(1)

Before making commercial video on-demand content available to persons in New Zealand, a specified CVoD provider must ensure that the content has been—

(a)

rated in accordance with this Act; and

(b)

labelled in accordance with section 6 and subsection (2).

(2)

The label must be in the prescribed form and must contain—

(a)

the rating assigned to the content; and

(b)

any description assigned to the content under this Act.

(3)

A specified CVoD provider must comply with subsection (1) by one of the following methods:

(a)

rating and labelling the commercial video on-demand content using the provider’s approved self-rating system in accordance with section 46D:

(b)

rating and labelling the commercial video on-demand content using the CVoD online rating tool in accordance with section 46D:

(c)

rating and labelling the commercial video on-demand content by applying to the labelling body under section 9(1) for the issue of a label in respect of that content.

(4)

Subsection (3) is subject to section 46C.

46C Content previously rated or classified

(1)

If a specified CVoD provider intends to make commercial video on-demand content available to persons in New Zealand and that content has previously been rated under this Act, the provider (or the labelling body in the case of content referred to it under section 9(1)) must apply the same rating and the same description (if any) to the content.

(2)

If a specified CVoD provider intends to make commercial video on-demand content available to persons in New Zealand and that content has previously been classified under this Act, the provider (or the labelling body in the case of content referred to it under section 9(1)) must apply the same classification and the same description (if any) to the content.

(3)

Subsections (1) and (2) apply irrespective of whether the content is in the same technical format or a different technical format.

46D Self-rating by specified CVoD provider

(1)

Subsections (2) and (3) apply to a specified CVoD provider who intends to make available in New Zealand commercial video on-demand content that has not previously been rated.

(2)

Unless the self-rating tool used by the provider identifies the commercial video on-demand content as potentially being objectionable, the provider must apply the label generated by the self-rating tool.

(3)

If the self-rating tool used by the provider identifies the commercial video on-demand content as potentially being objectionable, the provider must refer that content to the Classification Office for classification.

46E Approval of providers’ self-rating systems

(1)

A specified CVoD provider may apply to the Chief Censor for approval of a system to be used to rate and label the provider’s commercial video on-demand content.

(2)

Every application must contain the prescribed information and be accompanied by the prescribed fee (if any).

(3)

After considering the application, the Chief Censor may enter into an agreement with the specified CVoD provider that sets out the terms and conditions on which the provider is approved to use the system to rate and label the provider’s commercial video on-demand content.

(4)

The Chief Censor may cancel an agreement under subsection (3) at any time if the specified CVoD provider fails to comply with the terms and conditions of the agreement.

(5)

If an agreement is cancelled under subsection (4), the system to which the agreement relates is not an approved self-rating system from the date of the cancellation of the agreement.

46F Classification Office must annually review use of approved self-rating systems

(1)

The Chief Censor must annually review each specified CVoD provider’s use of the provider’s approved self-rating system or the CVoD online rating tool (as applicable).

(2)

After a review, the Chief Censor may suspend approval of a provider’s self-rating system until amendments are made to that system or to the agreement that sets out the terms and conditions of its use.

(3)

If an approval is suspended under subsection (2), the system to which the approval relates is not an approved self-rating system for the duration of the suspension.

(4)

Regulations under section 149 may prescribe fees that must be paid by providers to meet the costs of the Chief Censor’s annual review.

46G Complaints process

(1)

Any person may complain to the Chief Censor about the rating assigned by a specified CVoD provider to commercial video on-demand content.

(2)

After receiving a complaint, the Chief Censor may—

(a)

refer the complaint to the provider and require the provider to consider the complaint and respond to the complainant; or

(b)

classify the content under section 13(3); or

(c)

decline to take further action, if the Chief Censor considers that the content has been correctly rated.

(3)

After making a decision in accordance with subsection (2), the Chief Censor must advise the person who made the complaint of the decision and the reasons for the decision.

8 New section 150A inserted (Amendment of Schedule 4 by Order in Council)

After section 150, insert:

150A Amendment of Schedule 4 by Order in Council

(1)

The Governor-General, by Order in Council made on the recommendation of the Minister, may amend Schedule 4 by—

(a)

adding the name of any person; or

(b)

deleting the name of any person.

(2)

The Minister must not recommend that an order be made under subsection (1)(a) unless—

(a)

the Minister has consulted the Chief Censor on the proposal that the order be made; and

(b)

the Minister is satisfied, on reasonable grounds, that adding the name of the person will reduce the risk of harm to viewers of commercial video on-demand content;

(3)

The Minister must not recommend that an order be made under subsection (1)(b) unless—

(a)

the Minister has consulted the Chief Censor on the proposal that the order be made; and

(b)

the Minister is satisfied, on reasonable grounds, that deleting the name of the person will not materially increase the risk of harm to viewers of commercial video on-demand content.

(4)

For the purposes of subsections (2)(b) and (3)(b), the Minister—

(a)

must consider—

(i)

available evidence of the current or likely extent of public subscriptions to, or use of, commercial video on-demand services and products provided by the person; and

(ii)

available evidence of the nature of the commercial video on-demand content made available, or intended to be made available, by the person and the potential of that content to cause harm; and

(iii)

available evidence of the person’s commitment to a classification framework recognised in New Zealand as being effective in ensuring that persons in New Zealand who are likely to be harmed by viewing the commercial video on-demand content are warned of the nature of that content by means of clear and consistent labelling; and

(b)

may consider any other factors that the Minister thinks relevant.

(5)

An order under subsection (1)(a) must not come into force earlier than 3 months after the date on which it is published.

(6)

An order made under subsection (1) is a legislative instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

9 New Schedule 1AA inserted

Insert the Schedule 1AA set out in Schedule 1 of this Act as the first schedule to appear after the last section of the principal Act.

10 New Schedule 4 inserted

After Schedule 3, insert the Schedule 4 set out in Schedule 2 of this Act.

Part 2 Related amendments

11 Section 6 amended (Films to be labelled)

In section 6(1), after “offered for supply to the public”, insert “, or, in the case of video on-demand content, made available to persons in New Zealand,”.

12 Section 9 amended (Applications for issue of label)

Replace section 9(2) with:

(2)

Subsection (1) does not apply to—

(a)

any film in respect of which a label has already been issued under this Act (including any commercial video on-demand content that a specified CVoD provider has rated and labelled using a self-rating tool); or

(b)

any film that has been classified under this Act as objectionable.

13 Section 36 amended (Issue of labels in respect of films)

Replace section 36(2) with:

(2)

If the Classification Office has examined and classified a film submitted to it under section 13 or 42, or referred to it under section 29(1) or 41(3), the Classification Office may,—

(a)

in the case of commercial video on-demand content made available, or intended to be made available, by a specified CVoD provider, direct the provider to issue a label in respect of that content; or

(b)

in any other case, if the Classification Office is satisfied that the film is available for public supply or public exhibition, or is intended to be made available for public supply or public exhibition, direct the labelling body to issue a label in respect of that film.

(2A)

Subsection (2) is subject to section 34(b).

14 Section 77 amended (Functions of Classification Office)

After section 77(1)(a), insert:

(aa)

to develop, provide, and maintain the CVoD online rating tool for use by specified CVoD providers to self-rate and label commercial video on-demand content in accordance with Part 3A:

(ab)

to approve self-rating systems developed by specified CVoD providers for their use to self-rate and label commercial video on-demand content:

(ac)

to review the use of self-rating tools by specified CVoD providers:

15 Section 121 amended (Unlawful issue of labels)

In section 121(1), replace “not being the labelling body,” with “not being the labelling body or a specified CVoD provider using an approved self-rating system”.

16 Section 122 amended (Meaning of distribute in sections 123 to 132)

In section 122(1)(b), replace “(for example, to provide access by means of a public data network to digital content that is or includes the publication)” with “(for example, to make available digital content that is or includes the publication by means of a public data network)”.

Schedule 1 New Schedule 1AA inserted

s 9

Schedule 1AA Transitional, savings, and related provisions

s 4A

Part 1 Provisions relating to Films, Videos, and Publications Classification (Commercial Video on-Demand) Amendment Act 2019

1 Classifications made under code before 1 July 2020

(1)

If, before 1 July 2020, a specified CVoD provider rated commercial video on-demand content in accordance with a code of broadcasting practice issued or approved by the Broadcasting Standards Authority under section 21(1) of the Broadcasting Act 1989, that rating must be treated as if it were a rating made by the provider using the CVoD online rating tool.

(2)

A reference to a rating using the CVoD online rating tool must be treated as if it also included a reference to a rating described in subclause (1).

(3)

However, despite subclause (1), content referred to in that subclause has not been rated under this Act for the purposes of section 46C.

2 Unrated commercial video on-demand content made available before 1 January 2021

(1)

This clause applies to commercial video on-demand content made available in New Zealand by a specified CVoD provider before 1 January 2021 without—

(a)

a rating under this Act; or

(b)

a rating determined in accordance with a code of broadcasting practice issued or approved by the Broadcasting Standards Authority under section 21(1) of the Broadcasting Act 1989.

(2)

The requirements in sections 6 and 46B to rate and label commercial video on-demand content do not apply to commercial video on-demand content referred to in subclause (1) until 1 July 2021.

(3)

However, despite subclause (2), the Chief Censor may require a specified CVoD provider to issue a label in respect of commercial video on-demand content referred to in subclause (1) before 1 July 2021.

Schedule 2 New Schedule 4 inserted

s 10

Schedule 4 Specified CVoD providers

s 2, 150A

Alphabet Inc., a company registered and based in the United States of America

Amazon.com, Inc., a company registered and based in the United States of America

Apple Inc., a company registered and based in the United States of America

Lightbox New Zealand Limited, a company registered and based in New Zealand

Microsoft Corp, a company registered and based in the United States of America

Netflix, Inc., a company registered and based in the United States of America

Sky Network Television Limited, a company registered and based in New Zealand

Sony Interactive Entertainment Europe Limited, a company registered and based in the United Kingdom

The Walt Disney Company, a company registered and based in the United States of America