Video Streaming Legislation Already Outdated articles

It has been half a decade since Netflix launched in New Zealand and the market for subscription-based, on-demand streaming services is now congested.

While few questions have been raised about the self-classifications used
by these services, the controversial French film Cuties being the most recent example, the growth in streaming services prompted Parliament to review the way services are rating their own content.

On 6 August 2020, the Films, Videos, and Publications Classification (Commercial Video on-Demand) Amendment Act 2020 passed into law. However, with most commentary being based on the need to protect younger viewers, the legislation appears to be already out-of-date when looking at how younger generations stream content.

In this article we look at how this new Act applies to streaming services.

Commercial video on-demand is referred to as CVoD throughout the Act, an abbreviation that looks familiar but is an unfortunate coincidence.The base requirement from s 4 of the Act is that CVoD services, which are provided for a fee or other consideration, set their own self-rating system. This will be reviewed yearly at the provider’s cost.

The term ‘other consideration’ presents the first issue. The Act was drafted to include CVoD providers where a subscription fee is waived because the service is part of a deal or a promotion, often bundled with other services. It does not include circumstances where the streaming service is provided as part of a pay-TV package: this is on the assumption that the material being shown would already be classified at the time it was broadcast.

No other form of consideration was provided for, such as in exchange for personal information and the opportunity to advertise to the viewer.

With companies such as Alphabet Inc (Google’s parent company) and Facebook Inc producing shows and providing them without cost to consumers, we believe they should have been included as they are receiving a benefit from providing such shows.

Live streaming by individuals is a rapidly-growing market, with the most popular content providers regularly attracting hundreds of thousands of viewers

Alphabet is, however, a specified CVoD provider and, as such, its YouTube service may be looking to follow the requirements of the Act. Facebook, with its Facebook Watch platform, is not included.

The next issue is the definition of what is excluded from the Act. Live streaming by individuals is a rapidly-growing market, with the most popular content providers regularly attracting hundreds of thousands of viewers. Such content can often be viewed as a recording. Similarly, other individuals upload videos to streaming websites such as YouTube and, in return, receive an income through a 60% share of the advertising revenue generated by their video.

Section 8 would seek to exclude such content from the Act by stating it would not cover “any video on-demand content made available by a specified CVoD provider that was uploaded by a user to the provider’s platform, and that was not commissioned by the provider.”

There is no definition of what is considered to be ‘commissioned’. Before its closure, Microsoft’s Mixer platform had exclusive deals with several content providers, requiring them to produce stream content, initially live and then provided on-demand, for that platform. Other individuals have similar deals with Facebook, YouTube and Twitch.

We believe this would then classify the uploads as being commissioned and therefore within the material covered by the Act.

Some of those services, such as Twitch, provide for members to pay a monthly subscription to the video maker so the requirement for payment under s 4 may be met. Websites like Patreon or OnlyFans will restrict streaming content only to those who have paid to access it but would fall under the requirements only if it were deemed commissioned.

Such material is often targeted at young adults and may not be suitable for children. This would create an issue under s 46DA, which looks at how ratings must be determined, including a requirement to state who is likely to access the material.

We are unsure as to why the rating should depend on who may have access, rather than the actual content of the material. For a service such as Twitch, which (in relative terms) is reasonably strict with its enforcement of guidelines but still provides a service largely aimed at adults, compliance may mean making all videos R18 by default.

The Act also fails to consider other short-form streaming video platforms, such as TikTok. This has become one of the sources of online controversy in the past few years due to trends that can be not only offensive, but also encourage harmful and/or anti-social behaviour.

While such legislation can go only so far, it appears to be a missed opportunity. The Act appears to have attempted to solve one problem that arguably may not exist in an attempt to protect the young, while not looking to cover modern streaming that the young are more likely to watch without adult supervision.

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Arran Hunt

Partner

My practice is one where I deal daily with issues that touch my clients at very personal levels.  Issues of immigration and technology are changing...

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Arran Hunt