Creating a Level Playing Field or Expanding the Nanny State?: Regulating the content of premium rate SMS/MMS and walled-garden services in Australia

Abstract

The deployment of SMS (Short Message Services) and MMS (Multimedia Message Services) technology now enables mobile phone users to access a wide variety of text and visual content, including video clips and still images. Content providers have capitalised on the new technology and are offering a variety of premium rate services whereby subscribers pay the cost of accessing text and visual content via their mobile phone bills or other means. Mobile carriage service providers are also offering Intranet or walled-garden services which can be accessed via mobile phones. This article discusses how the content of these services is regulated in Australia. It traces the development of the regulatory framework for the content of these services and then evaluates the policy and practical implications of the Australian approach. It argues that the prohibition of material classified as X18+ on SMS/MMS and walled-garden services is overly prescriptive. It questions the government's decision to prohibit X18+ material on the basis of "content neutrality" in light of differences in the treatment of content accessed via different media platforms. Finally, it highlights a principal weakness of the current regulatory framework — the absence of any controls on the deployment of location-based services — and deals with some of the practical difficulties of the Australian approach.