Australian Government Investigation into Hardcore Satellite Television

For a number of years the UK has been fighting attempts by European based TV channels to broadcast hardcore content into the county. 

Australia did not have such a problem until late 2003 when the issue came to the attention of Senator Brian Harradine. The Adult Channels that broadcast on Pay-TV have limited popularity because of the restrictions that they can only screen censored R18+ rated sex films. If Australian channels were allowed to show X18+ OFLC approved porn then there would be little market demand for these foreign stations. 

At the time of the complaint there were three different companies broadcasting into the country. These being: 

BLUE KISS TV 
www.bluekiss.tv
bluekiss and bluekiss express
two great channels for the price of one
bluekiss is the first channel to provide sophisticated adult entertainment across Asia. The two channels schedules comprises of the very best and latest adult programming sourced from around the world. Featuring full length films on bluekiss tv and continuous clips on bluekiss express.
bluekiss showcases exclusive adult content never before seen on satellite television across Asia. This same content is featured on the following premium channels and networks: Sky, Canal+, Direct TV, Playboy and Spice.
bluekiss and bluekiss express are now broadcast throughout Australia on NSS 6 KU-BAND.

SEXZ TV
www.sexz.tv
Sexz.tv beams 24 hours per day, 7 days per week XXX adult movies. We have 4 new movies per day, 12 movies per day total.
- Sexz.tv is broadcasting from the NSS6 satellite
- Irdeto 2 encryption
- Only a 65cm dish will be needed in most parts, a 90cm dish will be needed elsewhere

FREE-XTV
www.free-xtv.com
The first 24/7 free access adult channel.
Free-X TV now offers 24 hours a day of hardcore movies for all tastes: straight, bi-sexual, gays, fetishism, orgies, etc…
You can watch up to 15 XXX action films per day and at least one NEW film every day shown at 9 pm (GMT). The movies are played in 3 blocks of about 8 hours.
Movies are shown in the language they were filmed in for more cultural pleasures. Free-X TV is more than ever the 24/7 pleasure channel.
FREE-X TV also part of the InXWorld network in New Caledonia/New Zealand/Australia beam on NSS 6 with 2 channels: Backroom (a gay channel) & Free-xtv.

On February 16th 2004, the smut obsessed, Senator Brian Harradine (as part of the  Senate Environment, Communications, Information Technology and the Arts Legislation Committee) put the following Questions on Notice to the ABA.

91. Is the Department aware that there are a number of satellite-based pornography channels broadcasting into Australia, including Free XTV (www.free-xtv-r.us), Sexz TV (www.sexz.tv) and Blue Kiss (www.bluekiss.tv)?

92. Are these pornography channels free of Australian ratings restrictions?

93. Does the Australian Government have any regulatory control over the operation of satellite pornography channels, which reach Australia?

94. Do these channels have Australian owners or operators? If so, does this give the Government the opportunity to regulate the activities of these broadcasters?

95. Given the pornography is broadcast via satellites including the Newskies NSS6 satellite, does the Government have the opportunity to negotiate with satellite owners to ensure that Australian ratings restrictions are complied with?

96.Is the Department investigating what to do about these pornography channels? What are the options?

***

On March 25th 2004 The Sydney Morning Herald published a piece titled  Hardcore satellite TV skirts legal loopholes. The article deliberately exaggerates the situation. A Perth based distributor is quoted as saying:

"We are telling our customers that it's the same as watching an X-rated video at home. You can watch it in privacy, provided it is not shown publicly or to minors.

"We have been dealing with the ACA and ABA and the censorship board says it doesn't fall within their jurisdiction."

The OFLC says:

".......that because the services were broadcast rather than on film, they did not fall within its jurisdiction."

Whilst the Australian Communications Authority says:

"We license the carrier, but not in terms of content."

The first actions of the Australian Broadcasting Authority are reported:

"........ the board had discussed the issue last Thursday, had sought legal advice and was about to launch an investigation: "We are aware of these services and have decided to instigate an investigation. We have legal advice that the services, though broadcast from overseas, still fall within the Broadcasting Services Act."

******

On April 19th 2004 the ABA issued a News Release, and its Terms of Reference.

ABA commences investigation into adult satellite services

The Australian Broadcasting Authority has released terms of reference for an investigation into ‘adult services’ being broadcast into Australia from overseas via satellite. The ABA has received complaints concerning the apparent availability of ‘pornography’ on these adult services.

‘The broadcasting of program material that has been refused classification, or has been classified as ‘X’ by the Office of Film and Literature Classification is prohibited,’ said Professor David Flint, ABA Chairman. ‘A formal investigation will enable the ABA to consider all relevant material and reach a view on whether there has been a breach of the Broadcasting Services Act.’

The ‘adult services’ being investigated include: Free-XTV and Backroom, Sexz.TV and BlueKiss.

The investigation will be conducted into the following matters:

The ABA will seek further information from service providers before finalising a report.

The Australian Broadcasting Authority has released terms of reference for an investigation into ‘adult services’ being broadcast into Australia from overseas via satellite. The ABA has received complaints concerning the apparent availability of ‘pornography’ on these adult services.

TERMS OF REFERENCE

Terms of Reference for investigation by the Australian Broadcasting Authority into ‘adult services’ broadcast by satellite in Australia from overseas locations

A. Notice of investigation

1. The Australian Broadcasting Authority (the ABA) has decided to conduct an investigation under Division 2 of Part 13 of the Broadcasting Services Act 1992 (‘the Act’) into the matters described in Part C of these terms of reference.

2. The investigation is conducted for the purposes of the performance or exercise of the functions and powers of the ABA under the Act, including the following:

Primary functions of the ABA – section 158

(a) to monitor compliance with codes of practice

(b) to monitor and investigate complaints concerning broadcasting services

(c) to take enforcement action under the Act

(d) to monitor, and to report to the Minister on, the operation of the Act.

Additional function of the ABA – sections 159 and 120

(a) to impose licence conditions on any relevant licence, including a class licence.

B. Background – legislation

3. The Act includes the following objects.

(a) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs

(b) to encourage the provision of means for addressing complaints about broadcasting services

(c) to encourage providers of broadcasting services to respect community standards in the provision of program material

(d) to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them.

4. The Act also

(a) charges the ABA with the responsibility for monitoring the broadcasting industry; and

(b) confers upon the ABA a range of functions and powers that are to be used by the ABA in a manner that, in its opinion, will produce regulatory arrangements that are stable and predictable and deal effectively with breaches of the rules established by the Act.

C. Matters to be investigated

Interpretation
5. In Part C of this notice, reference to the ‘adult services’ includes a reference to the following services:

(a) Free XTV and Backroom, both advertised on the internet at URL http://www.free-xtv.com/

(b) Sexz.TV advertised on the Internet at URL www.sexz.tv

(c) BlueKiss advertised on the Internet at URL www.bluekiss.tv.

Investigation

6. The investigation will be conducted into the following matters:

(a) Into which category of broadcasting service, listed in section 11 of the Act, do these adult services fall?

(b) What person or persons provide these adult services?

(c) Do these services comply with the Act and any applicable licence conditions and codes of practice, or any international cooperative agreements, particularly with regard to program content?

(d) What action, if any, should the ABA take in relation to its findings on the matters listed in paragraphs (a) to (c) above?

D. Conduct of the investigation

7. In conducting the investigation, the ABA will consider such other matters as are necessary to address the issues identified in these terms of reference and may, if it is considered desirable and appropriate to do so, amend these terms of reference to include any additional issues that arise in the course of the investigation.

8. The investigation will be conducted using the ABA’s powers under the Act.

E. Relevant provisions

9. The provisions in the Act relevant to this investigation include: Sections 3, 4, 5, 6, 11, 16, 17, 158, 159 Part 8 Part 10 Divisions 1, 2 and 4 of Part 13 Schedule 2, Parts 1, 2, 6 and 7.

Dated: 15 April 2004.

***

ABA turns sights on satellite porn. The Age 19.04.04

ABA investigator Jenny Brigg is quoted as saying:

"It's a test in that the legislation is clear, this sort of content is prohibited, but the question is, who is providing that content into Australia?"

"They look like they have got European bases but they are distributed in Australia and people are selling the cards and marketing them."

***

(ARCHIVED) Hardcore porn from a satellite near you. The Australian 29.04.04 

 ABA chief information officer Jenny Brigg is quoted as saying"

"......the ABA was made aware of the adult services after Senator Brian Harradine raised the subject in the Senate Estimates Committee in February. It was at about that time that the three services appear to have started their marketing push in Australia and begun setting up distribution networks to sell the smartcards that allow the satellite signal, which arrives scrambled, to be decrypted."

"The guts of the investigation is, is it really X and RC material that is being broadcast, as has been alleged? ... If it is X or RC, we know we're dealing with prohibited content.

"And the other thing is, who is providing the service? If it is someone overseas ... It doesn't mean we can't stop it, it just means we may have to look at what international agreements we have in place."

***

On May 25th 2004, Brian Harradine used Senate Estimates to question the ABA about the progress of the investigation.

Communications, Information Technology and the Arts Portfolio: Australian Broadcasting Authority
Date: 25 May, 2004
Department: Communications, Information Technology and the Arts Portfolio
Database: Estimates Comm.
Committee name: ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS LEGISLATION COMMITTEE
Program: Australian Broadcasting Authority
Proof: Yes

Senator HARRADINE —I want to now go to the issue of satellite delivered pornography of various types, including hardcore pornography. I raised this matter in the last meeting of the estimates. Where is this all up to?

Ms Wright —My understanding is that it was raised with the department at the last estimates. I am able to advise you that since that time the ABA have initiated an investigation in that area and that we have issued notices under the Broadcasting Services Act to require certain information which is to be provided to us by Friday, 28 May, which is the end of this week. The information goes to establishing whether the service provider of those satellite services is an offshore entity and, if so, whether those in the intermediary chain may also be construed for the purposes of our act as a service provider.

Senator HARRADINE —Under the Broadcasting Services Act, is it not the duty of the ABA and its employees to know whether there has been a breach of the legislation or the provisions of the act? Should you not immediately have been able to determine that?

Mr Tanner —This is an exceptions based regime. The ABA's role is typically triggered by a complaint, although that was not the case here. We commenced investigation once the ABA itself became aware of the issue. It also is a regime which imposes only light regulatory requirements on what are seen as the least influential broadcasters. So, for example, for any service which fits the definition of open narrowcasting or subscription narrowcasting, there is no requirement to get a licence from the ABA. Their content is authorised by class licence. That means that the ABA is not even aware who that person is necessarily until it receives a complaint. So there is no inconsistency with the ABA's role in our not knowing that people are commencing narrowcasting services until we become aware of a problem. That is the way the exceptions based regulatory regime works.

Back before 1992 you could not broadcast without a piece of paper from the government. Since 1992 there has been a different regime and a number of things are authorised under class licences, which means the regulator does not know who is doing it. Having become aware of the problem, the proper thing for the ABA to do is to determine who is doing the elements of providing a broadcasting service, because they are the people that the Broadcasting Services Act regulates and imposes conditions on. We know people who are involved in this business, and they are the ones we are making inquiries of. The purpose of those inquiries is to establish who and also in what jurisdiction the people or entities are that are providing a broadcasting service, because they are the ones that the Broadcasting Services Act allows us to regulate. They are the ones on whom there is a set of conditions bearing on classified or unclassified material.

Senator HARRADINE —What will occur in the end? Will there be a determination or what?

Mr Tanner —There is a number of possibilities.

Senator HARRADINE —Like what?

Mr Tanner —I cannot pre-empt that.

Senator HARRADINE —No, you can tell us what the possibilities are.

Mr Tanner —Yes.

Senator HARRADINE —Can you do that?

Mr Tanner —We need to establish who is providing a broadcasting service. If the entity is an offshore entity, and we are pretty sure offshore entities are involved, if any of the onshore people or entities are also doing actions that would mean that they are providing a broadcasting service in the terms of our legislation, we would then be able to—and we are doing this in parallel—establish the relevant category of licence with greater certainty than we have now, although we have a pretty fair idea, and therefore what the applicable rules are and whether there is a breach of those rules. We can then consider what our options are for taking action if there is a breach of rules. If any inadequacy is shown in the regulatory regime, that is another group of issues we will either be able to fix or be able to take up with other people.

Without a broadcasting service, we have no jurisdiction. If the only entities we can find that are actually providing a broadcasting service are entirely offshore based, that may also pose some practical problems in terms of a certain jurisdiction. But the point is when we have a fix on which entities are providing the service—and it is very often the case when you have a service brought in from overseas that there is someone in Australia who can be held to be providing a broadcasting service because of their role in onselling, marketing or whatever that service—then we know whom we are dealing with and we can work out whether they are complying with the rules. So that is what we are endeavouring to do, and we are doing that as promptly as we can.

Senator HARRADINE —If they are entirely overseas based, you can recommend to the relevant minister amendments to the legislation.

Mr Tanner —We will exhaust everything within our power if we find there is a problem. If there is an inadequacy in the class licence conditions, for example, we could make a new class licence condition. But, if there are things that are outside our power to rectify, we would have to come back to the government.

Senator HARRADINE —When is this likely to be concluded? When are you wrapping this up?

Ms Wright —As I said, the information we have asked for by notice is due at the end of this week. Then we would need to consider that information, draft a report and provide that to the board for consideration. So I would think that we are a couple of months away from an outcome on that investigation. But it depends on the degree of difficulty that the material that we are provided with throws up for us. As Mr Tanner said, there are issues if the service provider is an offshore entity, and this is an area I think which is internationally recognised as a problem, which is the regulation of satellite services. It is certainly something that the European Union is turning its attention to. For example, if it were being broadcast effectively from Europe, if it is not illegal in the country of origin nothing could be done in that country to deal with that situation regardless of whether it was illegal here.

You may be aware that Australia has been active in this area and that we set in place transborder television broadcast principles as part of the Asia Pacific Forum in the late 1990s which meant that, if we were transmitting material from Australia into another country, that country could come to us if they had a problem with material. Also, following on from that,  the Broadcasting Services (International Broadcasting) Guidelines in 2002 substantially targeted that area to give it a legal status. But not all countries have reciprocated. They do not extend to us formally or legislatively the same rights as we are necessarily offering them. So the purpose of this investigation would be to establish who the service provider is, who the other providers are in the chain, if that is relevant, and the countries that those service providers are operating from.

Senator HARRADINE —And what you can do about it?

Ms Wright —Then the conclusion will be whether, if they are located within Australia or part of a chain, we can take action in that regard. If they are located internationally and there is no provision in place for us to take action, then that is going to be, I presume, a broader matter for government of international liaison and turning attention to how these problems can be resolved. As I said, I know it is a problem that the European Union is endeavouring to grapple with currently. So it is something that is on the international drawing board, but not all instances are covered. So our investigation will be to ascertain where the primary service provider is located.

Senator HARRADINE —Are you working with the Australian Communications Authority, the ACA, on this matter—for example, as to what physical methods can be utilised to prevent these images coming across?

Ms Wright —I understand that we have had some preliminary discussions with the Communications Authority, but it is not yet clear how they would be able to assist us or work with us further on this until we have the information that we are seeking from notices.

Senator HARRADINE —I will put the rest on notice.

***

After nearly a year of investigation the ABA finally released the findings.

News Release

NR 25/2005
30 March 2005

ABA concludes investigation into adult satellite services

The ABA has completed its investigations into Free XTV, Backroom and Sexz. TV, adult services broadcast by satellite into Australia from overseas.

The ABA found that Canal Europe Audiovisual S.A, a Luxembourg based corporation, breached the class licence conditions and code of practice for subscription narrowcasting television services by broadcasting ‘X’ classified programs on Free XTV and Backroom.

It also found that Magnetic Enterprises Ltd, a company based in Vanuatu, breached the code of practice for subscription narrowcasting television services by broadcasting adult programs on Sexz. TV that would be likely to be classified as ‘X’ by the Classification Board.

As all of these services have now ceased broadcasting into Australia, following the commencement of the ABA’s investigations, the ABA considers the matters to be concluded.

Under class licence conditions and codes of practice for subscription narrowcasting television services, programs classified as ‘X’ or ‘RC’ by the Classification Board are prohibited from being broadcast in Australia.

The origin of the programming in another country, and its transmission via satellite from overseas, does not take a broadcasting service outside the operation of the Broadcasting Services Act 1992.

As long as the ‘broadcasting service’ is received within Australian Territory, and the person in control of the service intends to provide it here, the licensing provisions of the Act can be enforced against foreign persons who broadcast from outside Australia.

The ABA’s investigation reports are available on its website.

Media contact: Donald Robertson, ABA Manager Media and PR on (02) 9334 7980.

Backgrounder

Class licence condition and codes of practice

Subscription narrowcasting television services operate under a class licence. Class licences are for non-mainstream broadcasting service categories and do not require individual licences. Class licences are standing authorisation for anyone to provide a broadcasting service, subject to their complying with the conditions of the relevant class licence.

The class licence condition for subscription narrowcasting services in the Broadcasting Services Act 1992 prohibits the broadcast of ‘a program that has been classified ‘RC’ or ‘X’ by the Classification Board’ (Schedule 2 Part 7 Clause 11(4) refers).

The Australian Subscription Television and Radio Association (ASTRA) Codes of Practice Subscription Narrowcast Television Revised July 2003 (Code Number 3.3) states that ‘[p]rograms that are either classified X or are refused classification (or would be if presented for classification) by the OFLC will not be broadcast by television subscription narrowcasters’.

Chronology

On 18 March 2004 the ABA initiated an investigation into adult satellite services broadcasting into Australia from overseas locations.

On 15 April 2004 formal terms of reference for the ABA investigation were released.

On 6 May 2004 the ABA sent notices to parties it believes could assist the ABA.

10 June 2004 the ‘adult service’Sexz. TV ceased broadcasting on New Skies Satellites NV’s NSS6 in Australia.

By September 2004 the ‘adult service’Backroom ceased broadcasting on New Skies Satellites NV’s NSS6 in Australia.

By October 2004 the ‘adult services’ BlueKiss and BlueKiss Express ceased broadcasting on New Skies Satellites NV’s NSS6 in Australia.

On 23 November 2004 the ABA sent its preliminary investigation reports into adult satellite services to affected overseas broadcasting service providers. In keeping with the ABA’s practice of observing administrative law principles of procedural fairness to those affected by a decision, the broadcasting service providers were given until COB Friday 14 January 2005 to make comment on the ABA’s preliminary investigation findings.

On 3 February 2005 the ABA sent copies of the final investigation report to Canal (Free XTV/ Backroom), and to other affected parties for comment on the ABA’s findings by 25 February 2005. A revised preliminary investigation report for Magnetic Enterprises Ltd (Sexz. TV) was also sent to affected parties for comment by 25 February 2005.

In February 2005 the ‘adult service’ Free XTV ceased broadcasting on New Skies Satellites NV’s NSS6 in Australia.

***

The two full reports are listed below.

Investigation into Free XTV and Backroom, ‘Adult Services’ Broadcast by Satellite into Australia from Overseas Locations (227k)

Investigation into Sexz. TV, an ‘Adult Service’ Broadcast by Satellite into Australia from Overseas Locations (124k)

***

July 25th 2005

Just four months after the ABA report was released, and hardcore satellite TV was again beaming into Australia.

www.sanctum.tv
The Inner Sanctum XXX Adult Channel featuring Hustler and the best XXX content sourced from around the world available in Australia via NSS6 satellite with a 65cm satellite dish and decoder you can have hundreds of XXX uncut movies each week on your TV at home.

***

August 22nd 2006

The www.sanctum.tv site no longer works. The Inner Sanctum channel has changed to  . It seems to have been re-launched around June 2006.

www.sanctumxxx.com
INNER Sanctum featuring PRIVATE
Australia's PREMIUM XXX CHANNEL
The Inner Sanctum is Australia's Premium provider of high quality XXX programming. All viewable from the comfort of your own living room. At only around $4 per week ($199 per year) you'll gain access to some of the most sought after adult programming from the world's leading producer of Adult content.

With a 65cm Satellite dish and decoder you can have hundred of XXX uncut movies each week on your TV at home.

Q When do you show movies?
A The Inner Sanctum adult channel shows movies 24 hours a day, 7 days a weeks.

Q What rating are the movies
A All the movies are uncut rated XXX

Q What movies do you show?
A All the movies are from Private the worlds leading producer of Adult content. The movies are all new or recent releases and the content is constantly being updated. Most titles are still selling in Adult stores for $40 to $60.

Q What do I need to receive the channel?
A You will need an access card, a 65cm satellite dish and a digital decoder.

Q Where can the channel be received?
A Anywhere in Australia, New Zealand and South Pacific Islands. We have associations with professional installers in every region of Australia and can install equipment anywhere in Australia.

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