The connected citizenA disruptive concept informing ACMAperspectives

Occasional paper

February 2016

Contents

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Chairmans foreword1

Introduction4

About the research5

researchacma5

Characterising the citizen and citizen interests6

Background6

A recap on citizen concepts6

The citizen and the consumerthree characterisations of the relationship7

The citizen and the public interest7

Some further developments8

International developments8

The Australian context10

The citizen in regulatory practice13

Citizen perspectives in public interest assessments14

Empowering citizens through information and advice15

Enhancing citizen engagementservice delivery16

Enhancing citizen engagementcontributing to the regulatory process17

Evidence gathering and research20

An evolving analytical frame22

Broken concepts22

Applying broken concepts analysis23

Enduring concepts23

Applying the enduring concepts analysis26

Connected citizens27

Applying the connected citizens analysis28

Emerging citizen challenges for regulatory practice29

Citizens as the connectors in a mass connectivity environment29

Citizens as creators, sharers and curators of content31

Citizens as standards-developers and arbiters of the sharing economy33

Citizens and trust33

Engaging with the disengaged citizen34

Conclusion36

Contents (Continued)

Contents (Continued)

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Chairmans foreword

When I started as the inaugural Chair of the Australian Communications and Media Authority (the ACMA) in 2006, it pretty quickly became evident that digital convergence was going to be the big dial shifter. In a variety of guises, it has continued to cast a sometimes harsh spotlight on the spaghetti-like knot of regulatory regimes and different legislative arrangements to which the ACMA is required to respond. These differing regulatory toolkits, imperatives and legislative history date back to a time when regulation centred on the delivery platform (and there were only several), content was linearand Australian citizens only crossed borders at a Customs line.

So early on, it was my intuition that the concept of the citizen would be a vital part of the unifying glue or narrative the ACMA could (must) weave to act as a bridge between the broken concepts of a regulatory regime under pressure then, and one which would atrophy; continue to support those enduring public interest matters; and find the right regulatory means (or indeed, non-regulatory means) to support citizens in their increasingly complex connections in a rapidly-evolving networked society.

At that time, the relationship of the ACMA to citizens was most evident in our broadcasting work, upholding community standards to protect citizens as audiences. However, the inexorable waves of innovation in the communications world have meant that citizens are connected and connecting in many novel ways, therefore extending the ACMAs points of contact with citizens. In response to these several observations, the ACMA has worked to make the citizen central to our work (as the previous 2010 version of this 'Citizens' and the ACMA paper foreshadowed and as this updated iteration again demonstrates).

However, I have observed that since the initial work in 2010, any perceived neat distinction between the citizen and the consumer has been, and continues to be blurred, thus, as with many other elements of society being recast by digital change, disrupting the very notion of citizen. This is happening in a way analogous to how we have come to realise that the layers used to describe network operations at the heart of the contemporary world of communication are no longer, as the engineering origin of the concept might suggest, neat and clearly delineated functional constructs or markers for regulatory intervention. The distinctions between network layers are not quite the bright lines we may have optimistically ascribed to them back in 2010. Todays networks are instead increasingly permeable, interconnected and virtualised, meaning that much of what functions as infrastructure is software-defined and many content layer applications can deliver an infrastructure-like connection or service.

In a similar fashion, in the highly connected online world, citizens are interacting much more intensely with each other and with government and they have many more interactions with business while wearing their citizen hat (for example, using internet search tools and interfacing with internet content). At the same time, consumers in their marketplace activities find themselves confronted with and more concerned about the citizen aspects and implications of their transactions (for example, information security and privacy). This blurring of the lines between citizen and consumer does not mean the end of the utility of either concept to assist our understanding of the changing nature of the interactions of the individual in society, any more than the network layers construct ceases to have utility to aid our navigation and understanding of the networked world. However, our thinking can and must evolve to meet the complexity and disruption to well-established concepts, brought about by the ongoing development of this connected world.

This theme emerged in our Reconnecting the Customer (RTC) public inquiry, which is detailed as a case study in this paper. An important element of the inquiry was the examination, from a citizen-consumer perspective, of telecommunications service problems that arose from an increasingly complex communications services market offering multiple network, product and pricing choices. The ACMA drew insights from work in the field of behavioural economics that were useful in considering ways to assist individuals navigate this complexity. This examination of the customer problem in terms of citizen/consumer and commercial responses to an ever more complex communications world was an early but comprehensive investigation of the impact of disruptive forces that have continued to emerge and play out. The exploration of this issue was informative of the perspective that the complexity in communications (as encountered by consumers) cannot be divorced from that experienced by citizens. The behavioural consequences flowing from the networked complexity exhibited by the contemporary communications environment are relevant to both guises of the individual and will likely become even more so as disruptive change continues unabated.

This theme was further explored in our Contemporary community safeguards inquiry, also presented as a case study here. One major challenge for the ACMA (and the community generally) in the contemporary media world is the enormous input of user (citizen) generated content, often using platforms provided by large commercial entities (which makes the users also consumers). This content is immediately accessible and un-moderated; independent of industry, networks and devices. An important initial ACMA response to the question of future community confidence and trust in content safeguards has been to ask questions about the boundaries for future regulation, reviewing compliance strategies to adopt a risk control approach to regulation, re-focusing on the role of industry in the co-regulatory scheme and uplifting the role of the citizen (to that of a shared responsibility).

I have also come to appreciate that as a user, as a consumer and/or as a member of an audience, the citizens confidence in the regulatory system (broadly embodying the operation of the marketplace, self- and co-regulation and other more black-letter prescriptions) is critical. In this regard, our enduring concepts analysis demonstrated the attribute of Confidence as an important, indeed foundational, notion for the digital communications regulatory environment.

The concept of the citizen makes a powerful contemporary contribution to understanding this context of trust and confidence. The paper observes that negative experiences for individuals and organisations may undermine the confidence with which people engage with emerging technologies, and inhibit the potential of new industries.

While in the recently emerged digitally-enabled sharing economy citizens are using ratings and reviews to build trust using the various platforms, it is also clear that in other emerging domains, the lack of citizen trust can act as a market inhibitor. For example, with regard to the Internet of Things (IoT), there are undoubtedly a number of challenges to be resolved before the future imagined by many can come to substantive fruition. Standards must be settled, spectrum needs to be available, and citizen and consumer concerns need to be addressed.

Consulting firm Accenture, in a January 2016 report titled Igniting growth in consumer technology, noted that, the growth in demand for IoT devices is much slower than initially hoped forthere has been virtually no increase in purchase intent over last year.

Accenture suggests that price, security and ease of use remain barriers to the adoption by consumers of IoT devices and services. Of course, the ACMA perspective is that the more contemporary approach (built on the discussion above about the intertwining of the consumer/citizen perspective) is to read the reference to consumer as also a reference to citizen. On the issue with perhaps most relevance to the regulator, Accenture observes a global concern that:

Overall, nearly half (47 per cent) of [citizen-]consumers cited privacy risk/security concerns as a barrier to adoption This indicates that the consumer technology industry does not have the fundamentals in placeand the [citizen-]consumer trust establishedto push into more personalized and sensitive areas as it searches for the next wave of innovation.[footnoteRef:1] [1: Accenture, Igniting growth in consumer technology, 2016.]

This is where I sense that the regulator may well continue to have an integral roleto facilitate the establishment and stability of the market and the successful interaction of citizens and consumers with it, and thereby create the pre-conditions for deeper and more extensive industry self and co-regulation to operate successfully.

It is essential that Australians can make informed decisions and maintain confidence and trust as their communications services develop and change in the face of various disruptive business models and technologies. I see an important role for the ACMA, working with all sectors of the communications industry, to ensure that in the transition to the new networked information economy, we have well-informed individual participants (as citizens or as consumers) and that industry offers appropriate information and protections.

In this respect, I suspect this early and continued work by the ACMA can provide a valuable lead for the Australian Government in general, using digital platforms and technologies to engage with, communicate to and better serve Australian citizens.

Chris Chapman

Chairman

Introduction

The ACMAs purpose is to make media and communications work in Australias public interest.

The citizens capacity to engage effectively with digital communications and media is one crucial element of making communications and media work in the public interest. The different dimensions of citizen interests are also reflected through the ease of citizen engagement with regulatory process and service delivery, and through the information and advice that improves the way that media and communications work for individual citizens.

In 2010, the ACMA explored the development of a citizen-centric approach to its regulatory practice, by its provision of public services as well as through the discharge of its legislative obligations.[footnoteRef:2] As a conclusion to this examination, the ACMA undertook to embed citizen considerations into its work in a structured and considered manner. [2: ACMA, 'Citizens' and the ACMAexploring concepts within communications and media regulation, June 2010.]

While the legislative construct of citizen interests has remained relatively static during this period, the embedding of citizen considerations in the ACMAs regulatory practice continued to develop and adjust in light of citizens changing digital communications practices.

Increasingly, the rise of active digital citizens who, in an environment of expanded digital interaction between themselves and other citizens and with greater opportunities for such interaction with business, engage more directly with regulatory processes and with government. There are heightened expectations that citizens should form part of collaborative approaches to regulatory problem-solving, an approach that is proving more necessary in such a highly connected and networked communications environment.

In this paper, the ACMA:

reviews the concepts of citizen and citizen interests in the context of recent developments in international regulatory practice and the Australian Government and regulatory context

reflects on how the ACMAs regulatory practice has adapted as it has embedded citizen considerations in its work

looks at what it means to be a digital citizen in the context of contemporary communications regulation through a developing analytical approach used by the ACMA to inform its understanding about this changing citizen interest. It points to where regulation can be recalibrated to remove outdated and unnecessary obligations, while continuing to target regulation to areas of risk and harm

identifies a range of emerging/future citizen challenges and opportunities for change in communications and media regulatory practice.

About the researchresearchacma

Our research programresearchacmaunderpins the ACMAs work and decision-making as an evidence-informed regulator. It contributes to the ACMAs strategic policy development, regulatory reviews and investigations, and helps to make media and communications work for all Australians.

researchacma has five broad areas of interest:

market developments

media content and culture

social and economic participation

citizen and consumer safeguards

regulatory best practice and development.

This research contributes to the ACMAs regulatory best practice and development research theme.

Characterising the citizen and citizen interestsBackground

In the 2010 paper 'Citizens' and the ACMAexploring concepts in communications and media regulation, the ACMA explored two main drivers that informed the approach to addressing citizen interests as part of regulatory decision-making. These two strands concerned:

communications and media regulation (the ACMA seeking to develop its citizen-centric approach to the discharge of its regulatory activities)

developments in public administration (placing the citizen at the centre of public services at the commonwealth level in Australia).

Rapid change and innovation in the digital communications environment, along with continued developments in public sector administration practices that have occurred in the period since 2010, has necessitated an evolving approach to the way the ACMA has embedded citizen considerations in its regulatory practice. However, these two drivers remain highly relevant in the contemporary communications environment climate, and the ACMA has continued to draw on them as it shapes and updates such practice.

A recap on citizen concepts

In the 2010 paper, the ACMA noted that there was no single definition of citizen that captured all aspects of how the term and concept was used in regulation and public administration, noting that the term had different emphases depending on the particular context. For example, in the media and communications sector, the public may be referred to in a number of ways specific to a particular activity, including community, society, participant, people, Australians, contributor, viewer, audience, family, household, parent, youth, user, end-user, consumer, customer or client.

The 2010 analysis of the terms used to describe stakeholders in the ACMAs primary legislation reveals that the term citizen appears only four times in the Broadcasting Services Act 1992; once in the Radiocommunications Act 1992 (in both Acts, it refers to the legal status of an individual on all occasions; that is, Australian citizens); and does not appear at all in the Telecommunications Act 1997, Telecommunications (Consumer Protection and Service Standards) Act 1999 or Australian Communications and Media Authority Act 2005. A variety of other terms are used to define stakeholders.[footnoteRef:3] [3: The most commonly used terms to describe stakeholders in the Broadcasting Services Act 1992 are person (1,457 references), licensee (1486), broadcaster (358), end-user (77), community (24) and the public (55). In the Telecommunications Act 1997, the most frequently used terms are person (1,314 references), customer (336), end-user (119), consumer (116), individual (58) and community (35). In the Telecommunications (Consumer Protection and Service Standards) Act 1999, person (288 references), customer (204), the public (19) and people (16) are the most frequently used terms. Person is also the most commonly used term to describe stakeholders in the Radiocommunications Act 1992 (appearing 787 times), followed by licensee (522), broadcaster (49) and the public (31).]

From this analysis, two varying but useful characterisations were distilled for policy-makers, reflecting the following concepts:

The citizen as an individualan individual member of a community exercising a range of citizenship rights. These rights are often thought of as constituting three strands: civil, political and social.[footnoteRef:4] [4: T H Marshall (1992) Citizenship and Social Class, as discussed in L. Buckmaster and M. Thomas (2009) Social inclusion and social citizenship towards a truly inclusive society, Parliament of Australia Parliamentary Library, research paper no. 8, p. 11.]

The vulnerable citizenmembers of society who are disadvantaged and may be more dependent on government intervention to protect their interests, provide them with services or make available specific opportunities.

The citizen and the consumerthree characterisations of the relationship

A further important distinction, particularly as noted in the communications and media regulatory context, is the relationship between citizens and consumers. These separate characterisations reflect changes in the emphasis of regulatory practice over time, as regulatory frameworks evolved to deliver a range of different public policy outcomes such as facilitation of markets, protection of market operations, consumer protections and/or addressing specific market failures. The key characterisations reflect the following distinctions:

Citizen versus consumerthe citizen and the consumer represent a series of binary distinctions. These polarisations have highlighted the differences between a market-based, commoditised and individualistic depiction of consumer interests compared with the public, de-commodified and collective rights of what is referred to as citizen interests.

Citizen-consumer hybridin this characterisation, there is no clear-cut distinction between citizens and consumers but rather the reality of an individual as a consumer is part of a broader reality of the individual as a citizen.

Citizen interests as encompassing all interests of Australiansin this characterisation there is an acknowledgement that consumer and consumer interests as currently reflected in Australian media and communications legislation[footnoteRef:5], leaves the term consumer open to representing more than individual, market or commodified interests. [5: For example, Telecommunications (Consumer Protection and Services Standards) Act 1999, Broadcasting Services Act 1992.]

The citizen and the public interest

The ACMAs stated purpose is to make media and communications work in Australias public interest. In its regulatory practice, the ACMA has viewed the citizen interest was a way of amplifying and testing the public interest objectives of the communications and media regulatory framework.

By viewing existing public interest objectives relevant to the ACMA through the citizen lens, it can be seen that the citizen interest may either correspond with, or elaborate upon, existing public interest concepts as expressed in legislation and regulation:

ACMA activities that are in the public interesta broad spectrum of regulatory activity that falls into the category of public interest or citizen-related issues. These include the emergency call service, diversity of voices, program standards and codes of practice, and unsolicited communications.

Making regulatory decisions in the public interestthe ACMA is required to make decisions in accordance with public interest objectives set out in legislation. There is often considerable discretion in the application of these objectives, and the ACMA has used a range of measures to incorporate citizen perspectives through research and evidence gathering, undertaking detailed cost-benefit impact assessments of regulation and through consultation processes.

Some further developments

These characterisations of the citizen and citizen interest continue to be highly relevant in the current regulatory climate. However, there have been a number of changes in both the communications and media environment and in the directions of public administration that mean citizens are becoming increasingly connected by digital communications and have different types of opportunities for engagement in regulatory decision-making processes.

The fresh challenge for regulators, however, is to create mechanisms through the use of communications technologies and digital content, through which a digitally connected citizen can actively contribute to regulatory processes as well as broaden their civic engagement.

International developments

Given the global nature of contemporary communications and digital content, it is also useful to reflect on the policy developments that signal continuing shifts in how the concept of citizen interests is being addressed in other jurisdictions

The United Kingdom

In its 2010 paper, the ACMA explored in considerable depth the United Kingdom (UK) communications regulator Ofcoms approach to incorporation of citizen interests in its regulatory processes. Unlike the ACMAs regulatory framework, Ofcom is mandated under its legislation to maintain a distinction between citizens on the one hand and consumers on the other.[footnoteRef:6] This point is evident in publications and statements it has made on the issue, which maintain a sharp distinction between these two terms. [6: Clause 3 of the Communications Act 2003 states: It shall be the principal duty of Ofcom, in carrying out their functions; (a) to further the interests of citizens in relation to communications matters; and (b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.]

The most recent Ofcom publication focusing on the concept of the digital citizen was Citizens and communications servicesEnsuring that communications services work in the interests of UK citizens, published in January 2015. Its focus was on the availability, accessibility and affordability of communications services in the UK. It highlighted the progress made in the preceding 10 years in ensuring communications services had kept pace with the changing needs of UK citizens, as well as developments in technology. In addition, it sought to assess the challenges facing government and industry in ensuring the benefits of the communications market are shared across society, and that the growing expectations of citizens are met. It identified a number of key goals in ensuring that these targets are met, including delivering wider availability of quality broadband services, improving mobile coverage and reliability, and protecting the interests of disabled consumers.

Ofcoms update has received support for acknowledging a set of valuable policy considerations identified as beneficial for most citizens. However, the approach has come under criticism, most notably from some academics and commentators, for its limited exploration of the issues concerning citizenship in the digital communications context.

Most notably, Sonia Livingstone from the London School of Economics and Political Science and Peter Lunt from the University of Leicester have asserted that Ofcoms update concentrated too heavily on promoting consumer choice while failing to regulate in the public interest; ignoring prevalent contemporary issues relating to citizens rights such as privacy and identity. The consumer interest, they argue, tends to prioritise short-term considerations over long-term ones, and individuals private self-interest at the expense of the wider public interest.[footnoteRef:7] Livingstone and Lunt highlight the need for a genuine strategy relating to citizens, including possible goals in relation to participation and citizenship, and an indication of what citizen detriment would follow should these goals not be met. This, according to Livingstone and Lunt, constitutes an approach with the interests of the long-term public good at its heart, and a broader vision of the social infrastructure on which citizen participation fundamentally depends in a technologically networked society.[footnoteRef:8] [7: S. Livingstone and P. Lunt, the London School of Economics, Media Policy Project Blog, Ofcoms plans to promote participation, but whose and in what?, 2014.] [8: S. Livingstone and P. Lunt, the London School of Economics, Media Policy Project Blog, Ofcoms plans to promote participation, but whose and in what?, 2014.]

Broadly, the recommended approach is one of encouraging participation on the part of citizens, as opposed to the mere provision of services. Ofcoms approach is characterised as conflating media use with use of media to participate in society. This, it is claimed, ignores the interactive element in participation that differentiates it from usethe fact that you can use something alone but you cannot participate in something by yourself. A better question to ask, they suggest, is: of all the ways that people use media and communications, which uses does a regulator consider contribute most to the citizen interest? It is in these areas that a regulator ought to focus its energies and resources.[footnoteRef:9] [9: S. Livingstone and P. Lunt, the London School of Economics, Media Policy Project Blog, Ofcoms plans to promote participation, but whose and in what?, 2014.]

The European Union

The European Union (EU) adopts a rights-based approach in communications regulation. The Unions Communication Policy outlines its obligation to be bound by the Charter of Fundamental Rights of the EU, which guarantees the right of all citizens to be informed about European issues.

During the past 10 years, the EU has taken a series of measures intended to improve communication between citizens and its various institutions. These projects have had the stated goal of enabling European citizens to exercise their right to participate in the democratic life of the Union, in which decisions are supposed to be taken as openly as possible and as closely as possible to the citizens, observing the principles of pluralism, participation, openness and transparency.[footnoteRef:10] The most notable project in this regard is the Digital Agenda for Europea Europe 2020 initiative aimed at developing a digital single market in order to generate smart, sustainable and inclusive growth in Europe. It features a number of broad strategies with the rights of citizens in the digital sphere at their heart, including strengthening online trust and security, providing fast internet access for all and attempting to address unequal access to digital literacy. In addition, a number of consumer protection directives in the digital space have been implemented as part of the agenda. [10: European Parliament, Communications Policy Fact Sheet. ]

The most recent key development in this regard was the Agreement on Data Protection Rules, arrived at in December 2015. This will ensure that all Europeans have the same data protection rights across the EU, regardless of where their data is processed.

The United States

While the United States (US) has similarly not stated its formal policy on the issue of digital citizenship, it adopts a more consumer-centric, market-based approach than Australia, the UK or the EU. In recent times, to meet the challenges that the rapidly evolving technological landscape has thrown up, it has unveiled a series of projects with the intent of protecting consumers digital rights more vigorously. These include:

The release of the draft Consumer Privacy Bill of Rights Act in 2015, which seeks to embrace big data technologies while at the same time protecting fundamental values like privacy, fairness, and self-determination.[footnoteRef:11] [11: Executive Office of the President, Big data: Seizing opportunities, preserving values, 2014, foreword.]

New laws having been incorporated into the Consumer Rights Act 2015 allowing consumers redress when digital content they have purchased is faulty or when digital services have not been adequately rendered.

The Organisation for Economic Cooperation and Development

The Organisation for Economic Cooperation and Developments (OECDs) July 2014 Recommendation on Digital Government Strategies[footnoteRef:12] advocates a shift from governments anticipating citizens and businesss needs (citizen-centric approaches) to citizens and businesses determining their own needs and addressing them in partnership with governments (citizen-driven approaches). [12: OECD, Recommendation of the Council on Digital Government Strategies, 2014.]

Proposed steps to achieve this include:

adopting a risk management approach in addressing digital security and privacy issues

strengthening the ties between digital government and broader public governance agendas

reviewing legal and regulatory frameworks to allow digital opportunities to be seized.

The Australian context

Many of the issues being faced by regulatory bodies in other jurisdictions are also being experienced in Australia. This broader context has confirmed the original hypothesis by which the ACMA set out to incorporate the citizen perspective more fully into its work. It has also informed the ACMA as it has adapted its approach to citizen interests in the evolving Australian communications and media environment.

Public administration

There have been a number of public sector-wide initiatives adopting a citizen-centric focus for public administration at the Commonwealth level in Australia. This public sector reform aims to ensure the citizen voice is included in all parts of the policy-making cycle to increase efficiency and accessibility. It includes the intent of key Australian Public Service (APS) agencies, such as the Australian Public Service Commission (APSC), the Department of Prime Minister and Cabinet (PM&C) and the Department of Parliamentary Services (DPS).

A milestone was the July 2011 report Citizens engagement in policymaking and the design of public services[footnoteRef:13] published by the DPS. This paper explores the concept of citizenship at considerable length. It seeks to place the citizen at the forefront of policy-makers considerations, not just as target, but also agent. It surmises that the public should not be viewed as mere consumers, but rather as citizens, whose agency matters and whose right to participate directly or indirectly in decisions that affect them should be actively facilitated. [13: Department of Parliamentary Services, Citizens engagement in policymaking and the design of public services, 2011.]

The DPS report acknowledges a growing expectations of citizens to be more effectively involved in policy-making and service design. It makes a number of recommendations, including the provision of information to citizens from a diverse range of sources. More fundamentally, however, the report places a heavy emphasis on increased consultation and public participation in the processes of government. As a result, public servants are encouraged to collaborate, not merely consult; to reach out, not merely respond.

Another mechanism by which this modern, participatory approach has begun to be realised in public administration has been the creation of the Digital Transformation Office (DTO) in July 2015. The DTO has been described as a citizen-facing organisation[footnoteRef:14], encouraging a more outward, consultative view from government, as well as more active engagement with citizens. This involves not only the moving online of a number of services and interactions with government, but also synthesising online services across a number of different agencies and creating something of a one-stop-shop for citizens. It has implemented a number of schemes with the specific aim of consulting with the community, suggesting a collaborative approach and a genuine willingness to engage with and listen to the public. These include the proposed Trusted Digital Identity Framework, a method for citizens and businesses to transact with public services simply and securely. [14: i-scoop, Government: the Digital Transformation Office case, 2015. ]

Communications and media regulation

The 2010 paper, Citizens and the ACMA, outlined the way the ACMA sought to develop its stated citizen-centric approach to its activities and functions, within the context of public sector-wide initiatives to place the citizen at the centre of public services.

In the years since the publication of the original 2010 analysis, the increasing rise of active digital citizens has driven many changes in the way the regulator undertakes its activities. These changes have blurred previously neat distinctions between the citizen and the consumer. In the connected online world, citizens are interacting much more intensely with each other and they have many more interactions with business while wearing their citizen hatfor example, using internet search tools and interfacing with internet content. At the same time, consumers in their marketplace activities find themselves confronted with and more concerned about the citizen aspects and implications of their transactionsfor example, information security and privacy.

The expanded opportunities for digital interaction by individual citizens is also bringing greater opportunities for more direct citizen engagement with government and regulatory processes, including a collaborative role in regulatory problem-solving, and ways of informing and being informed by the regulator. While the legislative context that was present in 2010 has remained largely unaltered, the ACMA has continued to evolve its regulatory practice within this legislative framework, to respond to changing opportunities arising from communications technologies and varying citizen communications behaviours.

By way of example, whereas once the citizens role was as the complainant in regulatory processes, a citizens activities can now reflect multiple roles in their interaction with the ACMA:

as a participant through faster complaint resolution

as a contributor to the regulatory debate about review processes

in citizen conversations about the scope of the ACMAs regulatory remit

as part of engagement in social media and in authoring user-generated content.

In light of these changing communications practices, the ACMA has undertaken significant work to bring the citizen into regulatory processes in a meaningful way. This is discussed further in the next chapter. The result of this has been the ACMA shifting away from a process-driven, reactive approach to being a lighter-touch, harms-focused regulator.

The citizen in regulatory practice

In concluding its 2010 review of citizen considerations in communications and media regulation, the ACMA undertook to embed citizen considerations into its work in a structured and considered manner.

In 2010, the ACMA adopted a citizen interest framework that responded to the legislative, policy and government-wide initiatives that categorised the citizen-focused activities into:

service delivery and engagement initiatives

public interest considerations

the ACMAs regulatory role to provide information and advice to citizens about communications and media regulation. See Figure 1 below.

The ACMA citizen interest framework within the broader scheme of considerations

As the ACMA embedded citizen considerations through its work program, another operational practice emerged, which included being the central role of the citizen in evidence-gathering and research to inform regulatory decision-making.

This section explores how the different dimensions of regulatory practice have evolved since 2010, reflecting citizen considerations in:

public interest assessments

information and advice about citizen rights and responsibilities under communications and media regulation

process improvements to enhance citizen engagement with the regulator, such as:

service delivery improvements

contributions to regulatory processes

the integral role of evidence-gathering and research, as an operational underpinning for each of these areas of regulatory activity.

Citizen perspectives in public interest assessments

Specific aspects of regulation administered by the ACMA have citizens as members of the community central to the underlying policy objectives, compared to citizens as consumers participating in commercial transactions. Whereas the latter may be concerned with issues such as product reliability and safety, information disclosure, and fostering competition in markets, the former may deal with public benefits like national security, community safety, personal privacy, or cultural standards relating to taste and decency of broadcast content. For these areas of regulation, the notion of citizen interest is a natural focal point for deliberations about achieving a balance between the primary goal intended by the regulations and the reasonable needs of industry or public organisations.

Matters such as emergency call service arrangements, protection from unsolicited communications, and the broadcasting codes of conduct are examples of this field of work. The arrangements for the Do Not Call Register, for example, place limits on direct marketing activities of commercial entities, but recognise the need for some reasonable exemptions in relation to legitimate conduct of research by educational and political organisations, or activities of registered charities. As distinct from the notion of private individual, this reflects a broader concept of citizen interest that accommodates a more targeted solution to a regulatory problem.

The ACMAs work in relation to revised broadcasting codes of conduct provides another recent case study of its commitment to embed the concept of citizen into its regulatory practice. The Contemporary community safeguards inquiry demonstrates the ACMAs approach to evidence gathering, using research and outreach to seek the views of citizens, in the case where broadcasting codes are required to respect appropriate community standards for programming material.

Case study: The centrality of the citizen to the ACMAs role in identifying content standardsthe Contemporary community safeguards inquiry

Broadcasting codes of practice are intended to provide a flexible and responsive means of co-regulation for various content related public interest issues. They cover obligations such as the promotion of accuracy and fairness in news and current affairs and privacy protections. Codes are developed by industry participants, and are then reviewed and registered by the ACMA.

In the registration process, the ACMAs role is to ensure the codes provide appropriate community safeguards for citizens. This requires demonstrating the appropriate community standards for programming material are endorsed by a majority of providers of broadcasting services in that industry, and that the public has had the opportunity to comment on them.[footnoteRef:15] [15: Broadcasting Services Act 1992 - s123(4)(b).]

The ACMAs approach and principles are transparent and widely disseminated through the publication of its decisions and the Investigations concepts series of papers[footnoteRef:16], Citizen conversation forums and social media engagement. The informed citizen audience does the monitoring work, industry works towards compliance and, where a breach is found, proportionate remedial responses are negotiated with the broadcaster. [16: ACMA, Investigation concepts series. ]

The ACMA conducts regular research into community standards and discusses what those standards are in its decision-making. It acknowledges that these standards are not hard and fast, they change over time and that citizens understand material that is appropriate for one audience may not be appropriate for anotherbut that also the ACMA remains informed by evidence. In the course of reviewing the codes before registering them, it has conducted attitudinal research around community standards. This has tended to be code-specific, but over time has also paid close attention to convergence pressures.

The broadcasting Contemporary community safeguards inquiry[footnoteRef:17] was the ACMAs most recent endeavour to bring a contemporary, citizen-centred, but nevertheless holistic perspective to its broadcasting content related work. It set out to examine the matters that should be appropriately addressed in broadcasting codes of practice, taking into account community experiences and current-day citizen expectations, and changes in broadcast technologies and business models over the last few years. This work drew on the framework undertaken by the ACMA to incorporate citizen interests into its regulatory practice (see the following chapter: An evolving analytical frame). [17: ACMA, Contemporary community safeguards inquiry.]

The inquiry also addressed one major challenge for the ACMA (and the community generally) in the contemporary media worldthe enormous input of user (citizen) generated content, often using platforms provided by large commercial entities (which makes the users also consumers). This content is immediately accessible and un-moderated, independent of industry, networks and devices. An important initial ACMA response to the question of future community confidence and trust in content safeguards has been to ask questions about the boundaries for future regulation, review compliance strategies to adopt a risk control approach to regulation, re-focus on the role of industry in the co-regulatory scheme and uplift the role of the citizen (to that of a shared responsibility).

Empowering citizens through information and advice

The evolution of communications and media technology has extended the role of communications and media products beyond merely being the tools through which citizens interact with each other in the real world. The internet has enabled the creation of online realms where people interact with each other and with organisations, either as themselves, as pseudonyms or alter egos. This could manifest as carrying out an online version of a relatively mundane activity, like shopping for groceries, to engaging in an internet discussion forum, or participating in a virtualised world with its own set of properties and social norms distinct from real-world existence. Communications and media products and services have also become data gathering mechanisms, collecting, sharing and selling increasingly large amounts of detailed information about their users.

This technological development has given rise to reinvented versions of familiar harms, with accompanying challenges about how to address them. Cyberbullying, online fraud and unauthorised use of personal information by social media networks are just some examples of conventional problems recast by technology, but with familiar real-world consequences. To the extent these harms create negative experiences for individuals and organisations, they may undermine the confidence with which people engage with emerging technology, and inhibit the potential of new industries.

Where there is less direct incentive for industry to implement in-house remedies in protection of commercial financial interests, one significant contribution a regulator can make is to act as an impartial source of information, education and advice as a means of addressing merging harms.

The ACMAs work on Cybersmart programs and digital citizenship principles (which now reside with the Office of the Childrens e-Safety Commissioner) is an example of where the concerns of the citizen took a central place in the development of a non-regulatory response based on the provision of advice and educational materials. The Cybersmart program evolved out of a need to respond to the escalating problem of cyberbullying occurring among school-aged children, and drew upon research and community outreach conducted by the ACMA over a number of years as the program evolved. It now offers a number of resources to schools, parents and the community, which assist people to address issues that can arise as children and young people gain experience with the internet and communications and media technology.

Drawing on its experience from the Cybersmart program, the ACMA undertook the development of digital citizenship principles, aimed at a broader audience of internet users and recognising the increasing integration of online activity into everyday lives of Australians. Community research supported the development of a Digital Citizens Guide (released July 2013). The general community and ACMA stakeholders understood, and were generally positive about, the concept of digital citizenship and the three underlying digital citizen principles identified in the guide.

The Digital Citizens Guide moved away from proscriptive or fear-based approaches by focusing on how to foster positive online engagement. The views received from individuals, industry and not-for-profit organisations that participated in the research assisted the ACMA to formulate a set of high-level principles that were well received by the communityEngage positively, Know your online world, Choose consciously.

Enhancing citizen engagementservice delivery

Enhancing citizen engagement in one sense is captured by efforts the ACMA is making to improve the ease with which the community can complete administrative transactions that represent the operational end of various regulatory frameworks. Making it easier and more efficient to lodge a licence application, seek an approval, or make an enquiry are examples of improved service delivery to enhance the ways the ACMA engages with citizens.

One way the ACMA has sought to improve its processes is evidenced by the way it has embraced government initiatives to partner with industry on the delivery of regulatory services. For example, some accreditations and certifications required under legislation, such as those relating to maritime and amateur radio operations or telecommunications cabling, are now delivered by industry bodies like the Australian Maritime College and the Wireless Institute of Australia.

The recent rebuild of the Do Not Call Register represents another example of the ACMA leveraging the expertise and efficiency available through partnering with industry to improve on an important and popular service to citizens. The transfer of the register to the new provider, Salmat, was launched successfully in September of 2015, with over 2,000 new telephone numbers added to the register within the first eight hours of operations. The revised register will provide better information about the types of telemarketing calls citizens complain about, enhancing the ACMAs ability to identify concerns of citizens, and target compliance and education activities more effectively.

Enhancing citizen engagementcontributing to the regulatory process

A key element of ensuring that a given regulatory framework remains fit-for-purpose is to test whether it still provides its intended benefit to its intended beneficiaries, and even more fundamentally, whether the community continues to need or want the protections the regulation provides. Finding ways to encourage the contribution of citizens to the regulatory process therefore becomes a central element of the ACMAs regulatory practice, in order to determine this fundamental point of what measures the community want regulators to take. The ACMAs communication strategy illustrates various channels through which this contribution is facilitated (see Figure 2 below).

For example, advisory committees and forums the ACMA convenes, whose membership includes individuals from the community, or those who act as advocates for consumers and citizens, provide an ongoing source of citizen input into ACMA considerations. The Emergency Call Service Advisory Committee and the Consumer Consultative Forum are examples of standing advisory groups that assist the ACMA to understand citizen concerns in relation to regulatory arrangements.

The ACMA stakeholder relations strategy

Public inquiries, such as the Reconnecting the Customer (RTC) inquiry is another example of where the ACMA actively sought the participation of Australian citizens in the process of addressing a regulatory problem. The RTC inquiry was prompted by a significant and sustained rise in complaints to the Telecommunications Industry Ombudsman, over the period from 20072010, about customer service and complaint mechanisms in the telecommunications industry. The ACMA recognised the importance of gaining a thorough understanding of citizen concerns about customer service and complaints-handlings practices in telecommunications in order to understand the scope of the problem and to identify relevant solutionsas stated by the Chair of the ACMA upon the launch of the inquiry:

We want to understand what the problems arethe way the telecommunications industry is dealing with its customers and the root causes of those problems. And critically, we want to identify enduring solutions that will improve customer service and complaints-handling, both now and into the foreseeable future.

The focus of the RTC inquiry concerned the communications experience of citizen-consumers. In addition to publishing a written consultation, the ACMA held a series of five public hearings in various locations across Australia to obtain detailed input from citizens about their experiences. The insights gathered from these exercises informed the ACMAs collaboration with industry on a substantially revised Telecommunications Consumer Protection Code that came into effect in July 2012 (see the case study below).

Case study: Inquiring into communications complexity for citizens as consumersthe Reconnecting the Customer inquiry

The ACMAs Reconnecting the Customer (RTC) public inquiry was conducted in 201011 against the backdrop of a significant rise in telecommunications consumer complaints (see Figure 3 below).

Trend in complaints to the TIO

The RTC inquiry into customer service and complaints-handling practices within the Australian telecommunications industry was, in its scope and process, an unprecedented initiative to tackle widely recognised and longstanding consumer issues. An important element of the RTC inquiry was the examination of the problem in terms of citizen/consumer and commercial responses to an ever more complex communications world.

In the RTC inquiry, the ACMA observed great complexity in the packages or bundles offered by service providers, as well as their pricing. Even from a single service provider, the task of deciding the bundle that best matched a consumers individual preferences for the type of service, quality, speed, handset and volume of usage was complex. Comparing packages across service providers became concomitantly more complicated. Not only did a number of packages from each of a number of service providers have to be compared, but the information about essentially the same service was provided in different ways.

Although this complexity of service offerings was generated by service providers, it partly responded to consumers wants (for example, access to different services on one device) and provided potentially attractive benefits for customers, along with uncertainties and risks. The ACMA drew insights from work in the field of behavioural economics that were useful in considering ways to assist individual citizens navigate this complexity. This examination of the customer problem in terms of citizen/consumer, and commercial responses to an ever more complex communications world, was an early but comprehensive investigation of the impact of disruptive forces in the communications marketplace. The exploration of this issue was informative of the perspective that the communications complexity (as encountered by consumers) cannot be divorced from that experienced by citizens. The ACMA recognizes that the behavioural consequences flowing from the networked complexity exhibited by the contemporary communications environment are relevant to the individual both as consumer and as citizen, and will likely become even more so as disruptive change continues unabated.

The ACMA noted that decision-making can be negatively impacted by complexity, since individuals:

can only take so much product information into account and are susceptible to advertising

are likely to copy the decisions of friends, rather than make time-consuming independent enquiries

are unlikely to dig deeper into fine print

can be short-sighted in their purchasing decisions.

As a consequence, each of these factors increased the likelihood that a consumer would make a choice that turned out to be a poor one in hindsight.

The resultant strategy, which culminated in the essential shape of the Telecommunications Consumer Protection Code, was designed to drive communications product offerings that are more comprehensible and help consumers avoid these and other behavioural traps.[footnoteRef:18] [18: ACMA, Reconnecting the Customer final report, 2011. ]

The announcement of the public inquiry was a prelude to the commencement of a review of the Telecommunications Consumer Protections (TCP) Code by industry association Communications Alliance, the body responsible for the development of the code. The new TCP Code was registered in July 2012 and came into force on 1September 2012. The new Code provides a comprehensive set of enforceable safeguards for Australias telecommunications consumers and is intended to facilitate a cultural shift in the way providers go about customer care.[footnoteRef:19] [19: ACMA, Telecommunications Consumer Protection Code. ]

In the period following registration of the TCP Code, there has been a clear and ongoing improvement in industry compliance, particularly with advertising requirements and enhanced consumer information provision. In 2015, the ACMA reported annual savings of $545 million accruing to telecommunications consumers.[footnoteRef:20] [20: ACMA, Reconnecting the CustomerEstimation of benefits, 2015.]

Evidence gathering and research

A fundamental element of the AMCAs application of citizen interests to regulatory practice is its strong imperative for evidence-informed decision and actions. Central to this evidence focus is the ACMAs research program, which provides information to industry, citizens and government on Australias communications and media environment, as well as the effect of new communications technologies, industry developments, and changes in consumer behaviours on the operation and effectiveness of existing regulation.

The ACMAs approach to research and evidence-gathering aims to incorporate a citizen focus in a number of ways:

assessing the costs and benefits associated with specific regulatory and non-regulatory initiatives, including impacts on citizens as individual consumers and citizens as part of a community

identifying the impact of evolving technological and market pressures on the delivery of enduring public interest regulatory policy objectives and the effectiveness of existing regulatory and non-regulatory interventions that support these public interest objectives

identifying and scoping the impact of emerging risks or harm arising for citizens in the communications and media environment

identifying opportunities for better regulation and deregulation reforms.

As part of its regulatory practice, in 2008 the ACMA confirmed its decision to integrate into its processes the Office of Best Practice Regulations recommendations regarding the use of the Total Welfare Standard when assessing regulatory proposals.[footnoteRef:21] These requirements explicitly include consideration of the potential effect of regulatory proposals on individuals and the community, in addition to businesses and organisations, and are critical to forming a properly balanced view about the feasibility and value of alternative regulatory options. [21: ACMA, Evidence-informed regulationthe ACMA approach, 2010. ]

Such rigorous regulatory impact assessments are of particular significance to decisions that can have long-term investment implications, such as those relating to management of national resources like Australias telecommunications numbers and radiofrequency spectrum. The ACMAs research into the economic impacts of mobile broadband represents one such body of work. The study sought information to assist the ACMAs valuation of a key use of Australias national spectrum resources in as comprehensive a sense as possible, which included an assessment of how the benefits of mobile broadband filter through to individual citizen households.

In a more operational sense, the ACMAs research helps it to understand where it should direct its energy and resources in fulfilment of its functions, and what kinds of information and advice the community may need from its communications and media regulator.

The ACMAs community research on informed consent, and its Digital footprints and identities research are some examples of its efforts to understand citizens experiences with new technologies, the benefits they discover and the difficulties they encounter, and in light of that information, to develop tailored advice and information that may be helpful to citizens in making productive use of communications technologies and services.

An evolving analytical frame

An important component in the evolving regulatory practice of the ACMA is the analytical framework used by the ACMA to inform its understanding of about what it means to be a digital citizen in contemporary communications and media. The framework uses this changing citizen interest to identify where regulation can be recalibrated to remove outdated and unnecessary obligations, while continuing to target regulation to those areas of risk and harm.

The ACMA has explored these questions about the future of regulation in communications and media in three major regulatory practice research pieces, all of which have significantly developed its thinking about the place of citizens in contemporary regulatory practice.

This chapter briefly reflects on the citizen dimension analysed under these three regulatory practice papers:

Broken conceptsundertook a problem analysis examining how the key conceptual building blocks of communications and media regulation were affected by convergence pressures, including the impact of the changing role of communications citizens on these legislative concepts. It explored who and what is regulated and it aimed to identify what regulatory concepts needed change or updating.

Enduring conceptsexplored the question of why regulate. It focused on the underlying public interest rationale for present and future intervention in media and communications markets. This analysis helped identify the particular public interest outcomes that needed to remain, even if the form of intervention to support those outcomes needed updating. It identified relevant citizen-related public interest outcomes.

Connected citizensexplored the question of how to regulate in a dynamic environment. It examined the suite of tools and strategies available to a regulator to allow flexible and adaptive regulatory responses to address the risks and harms of the connected, networked digital environment, not solely the risks and harms to the individual, but to citizens as a whole.

Often a logical starting position in any public policy discussion is to address the question, why intervene? or the rationale for government or regulatory interest in an industry sector. In the Australian regulatory policy context during this period, the rationale for intervention was often assumed. However, dimensioning the scope of change and its impact on regulatory concepts and structures was less understood. So the ACMA commenced its framing analysis with a problem diagnosis. That was an appropriate starting point for a regulator charged by government with developing solutions to known regulatory problems.

Looking at each of these pieces of analysis in turn reveals a developing consideration of the utility of a single, coherent regulatory framework for media and communications that both incorporates and reflects Australias digital citizens interests.

Broken concepts

The Broken conceptsThe Australian communications legislative landscape analysis provides an overview of the suite of communications and media legislation and its incremental updates over the past 15 years. The paper examined the core legislative concepts that defined who and what activities are regulated, why they are regulated and concepts defining how regulation was to be given effect.

It analysed the key building blocks of the core legislation to assess how they were affected by convergence change pressures. One of the specific sources of change identified was the role of changing consumer and/or citizen engagement as a source of pressure on the integrity of existing communications and media regulatory concepts.

The analysis sought to identify how communications and media developments were impacting on the way citizens interacted not only with communications services, but also their effect on the operation of regulation. It noted that data delivery is increasingly ubiquitous and consumers are increasingly substituting data-based communications for voice services, for example, email, short message service (SMS) and social networking applications. Content production is also shifting away from industry as users generate their own content and share it via the internet. Private and public service delivery is also shifting online. These developments are changing the way citizens interact with each other, procure services and participate in the public sphere.

It concluded that many of the current concepts in legislation were coming under strain and some concepts were already redundant, in light of the different structures of IP-delivered communications and content.

Applying broken concepts analysis

This framing analysis has proved useful in its application to the contemporary regulatory policy environment.

For example, one broken concept identified from this analysis concerned program standards and codes of practice developed under part 9 of the Broadcasting Service Act 1992. The legislative definition of a program standard did not cover all of the contemporary forms of content delivered using the internet or on-demand programs. Under current definitions, the ACMA, like many other regulators, is considering the effectiveness of existing regulation for streamed content and catch-up television programming. In the current context, broadcasting codes apply to content as broadcast but not to the same content delivered over the internet.

Having scoped the gaps and ambiguities in the regulation of content, the next logical task was to analyse which aspects of the current regime should be carried into a technology-neutral world. The ACMA does not see this solely as a technical question about platforms and devices, but a broader concern to distil those public interest safeguards that citizens would continue to expect in that environment.

Enduring concepts

Enduring conceptsCommunications and media in Australia considered the fundamental concepts that underlie the rationale for present and future intervention in media and communications markets (enduring concepts) or the public interest matters that shape the reasons for a converged media and communications regulator intervening in markets and society. The analysis noted that concepts endure because they are of continuing significance to markets, government and society as a whole. Enduring concepts are not ways of respondingrather, they characterise the public interest objectives that regulation of media and communications might be expected to achieve.

Many of these concepts are manifest in existing media and communications frameworks. For example, existing media ownership and control mechanisms reflect the idea that a diversity of perspectives expressed in the public sphere is important to sustaining a vibrant and healthy democracya notion at the heart of citizenship.

The analysis also reflected that these convergence pressures often required concepts from existing frameworks to be recast, or the methods to achieve them re-evaluated, to accommodate contemporary realities. For example, present media ownership and control mechanisms reflect pre-convergent circumstances in which the delivery of opinion was localised to defined geographical areas. More than ever, however, content delivery platforms are national and moving towards global platforms, and mechanisms to gauge influence in the regulatory framework may require updating to reflect these developments.

Many of the concepts that have been prominent in past policy thinking, and provide clear points of contact with existing citizen concerns for the ACMA.

For example, accuracy and fairness in media, reflected in the concept of ethical standards, is regarded as critical to ensuring that citizens are provided with fair and accurate information so they may participate constructively in Australian democracy.

A key historical objective of Australian broadcasting legislation is to promote the role of broadcasting in developing and reflecting a sense of Australian identity and character. It is considered important that citizens are able to experience Australian stories and hear Australian voices when viewing media and communications services.

While Australians have embraced an increasing range of media and content sources, participants in ACMA research were of the view that the internet allows for a greater diversity of views and provides citizens with a voicesomething that broadcast media is not so easily able to do.[footnoteRef:22] [22: ACMA, Digital AustraliansExpectations about media content in a converging media environment, 2011, p. 3.]

However, it is important that the effects of convergence on influential media and the concept of diversity of voices not be overstatedtraditional media and communications delivery platforms (and their content) remain highly influential. While diversity remains an important consideration in the medium-term, it requires calibration in the context of the choices of communication and media that are now available in Australia. It may also require a more sophisticated measure of influenceone that considers all forms of content (including user-generated content) over communications networks.

Another relevant concept is localism, which reflects the recognition that in Australia communications that enable citizen access to local social networks, services and information of importance are protected under communications and media legislation.

Localism is also an integral part of emergency warning systems and in the concept of protection of the public, there is a general community expectation that government plays a role in protecting citizens from risks to life, health and safety. A range of public interest objectives are specifically expressed in communications and media regulation, including access to emergency services, protection from harmful communications and prohibition of radio emissions likely to endanger safety.

However, through its international and user research programs, the ACMA also identified a number of developments, which include citizen empowerment, global supply chains and complexities of engagement with the digital communications environment.[footnoteRef:23] The analysis noted that convergence processes presented fresh issues in media and communications, which in many cases, are elevated the significance of concepts not explicitly expressed in existing legislative frameworks. These were characterised in Enduring concepts as convergence concepts, which are concepts that have been observed to be accentuated or highlighted by the changes brought by convergence. The concepts that are identifiable specifically as a result of the changes brought by convergence each has a definite citizen orientation and consequence. [23: ACMA, International regulatory research, May 2011.]

Digital citizenship is a significant example of this phenomenon, as were the related concepts of confidence and digital information management.

The pronounced increase in technical proficiency and digital literacy required for citizen-users to navigate their way successfully and securely online has been a developing issue in media and communications that has escalated as online activity becomes a mainstream business, government and social practice. An analysis of these developments led to the identification of an additional concept in media and communications that is not explicitly addressed in the existing legislative frameworkdigital citizenship.

The requirement for a degree of digital literacy and an understanding of individual rights and obligations in a networked communications environment is becoming an important part of effective engagement in social, economic and civic life, but this is not well recognised in existing frameworks or interventions. The ACMA has conducted specific research projects into this aspect of digital engagement (as discussed earlier in Chapter 2).

Confidence in using and engaging with the opportunities arising from new communications and media services is becoming a critical issue. Digital communications and media have changed the current focus, with a new emphasis on the role of the citizen-user in confidently engaging with converged communications and media opportunities. Digital environments often require shared responsibilitycitizens as users need to understand that (in some cases) successful outcomes will result from their own technical proficiencies and critical skills rather than solely prescribed obligations imposed on particular government bodies or industry parties.

This analysis informed the identification of confidence as an important foundational concept for the digital communications regulatory environment.

Finally, the role of digital information as a key product and transaction in a digital economy, pointed to the growing importance of digital information management as a concept within the contemporary communications environment.

From a citizen perspective, the controls service providers and other organisations place on the uses of personal data emerged as an important issue, based on ACMAs tracking of issues of community concern. Service providers can assemble personal data collected from users of their services. Public interest concerns in relation to privacy and online anonymity, safety and reputation management were identified as key issues for citizens and consumers use of digital communications services.

There are also increasing user expectations of data interoperability and portability, as network standardisation has enabled data to be transferred seamlessly between different kinds of platforms and devices. With increased industry activity evident with the Internet of Things[footnoteRef:24], digital information management has elevated in its importance over time since the Enduring concepts analysis was first undertaken. [24: ACMA, Internet of Things and the ACMA's areas of focus, November 2015.]

Although the ACMAs analysis explored the utility of these concepts, it needs to be acknowledged that there is no emerging international consensus on the best way for regulators to ensure citizen considerations are addressed. In a review of UK regulator Ofcoms 2015 report, Citizens and communications servicesEnsuring that communications services work in the interests of UK citizens, academics Sonia Livingstone and Peter Lunt have argued for a broader definition of citizen interests. They have proposed that the citizen interest encompass the concepts of media diversity, plurality and trustworthiness. They also suggest a focus on fostering citizen participation in communications matters, by promoting the value of civic, community and political communication online through support for media literacy.[footnoteRef:25] Notably these broadly defined reference points are all reflected in the ACMAs analysis of citizen considerations in the Australian communications environment. [25: Sonia Livingstone and Peter Lunt LSE Media Policy Project, The citizen interest still a thorny problem for Ofcom, November 2013.]

Applying the enduring concepts analysis

Again, the ACMA has used this framing analysis in its development, with industry, of updated co-regulatory solutions.

As part of the industry code registration obligations, the ACMA is required to assess prevailing community standards. One of the challenges has been to determine which safeguards, borne of history, precedent or prescription for a then community standard, should continue into a contemporary media environment.

In the 2014 Contemporary community safeguards inquiry, the ACMA set out to examine the matters that should be appropriately addressed in broadcasting industry codes of practice, having regard to community experiences and current day expectations, and to changes in broadcasting technologies and business models over the last few years.

The ACMA conducted research that indicated Australians were embracing an increasing range of media and content sources. Research participants considered that the internet allows for a greater diversity of views and provides citizens with a voice more readily than broadcasting does.[footnoteRef:26] [26: ACMA Digital AustraliansExpectations about media content in a converging media environment, 2011, p. 3.]

Sixty eight per cent of respondents indicated that traditional media (television, radio and print) was their main source of news.[footnoteRef:27] Four in five online Australians with children under 18 said that classification, ratings and other advisory information was quite or very important in finding suitable content for their children when watching free-to-air television. They were looking for similar information to be available in an online context.[footnoteRef:28] [27: ACMA Digital AustraliansExpectations about media content in a converging media environment, 2011, p. 37.] [28: ACMA, Digital AustraliansExpectations about media content in a converging media environment, 2011, p. 57.]

Four in five online Australians agreed that it is important for Australian news organisation to check facts before publishing a news story online and 77 per cent thought it was important for the websites of Australian television broadcasters to have the same rules about accuracy and fairness as do news items shown on television.[footnoteRef:29] [29: ACMA, Digital AustraliansExpectations about media content in a converging media environment, 2011, p. 43-4.]

In addition to the research, the ACMA held seven Citizen conversation forums on code topics to explore citizen experiences and we commissioned economic research.

The Contemporary community safeguards inquiry also found a high-level of consensus on matters of importance to the community. This paved the way for recalibrating and future-proofing the various codes of practice, stripping them down to address core community safeguards including:

accuracy in news and current affairs

fair treatment and privacy

transparency and balance in advertising and programing, preventing harm particularly to children

effective complaints-handling mechanisms.[footnoteRef:30] [30: ACMA, Contemporary community safeguards inquiryConsolidated report, 2014, p.579.]

The inquiry substantially informed the review of the new Commercial Television Code of Practice that was recently registered by the ACMA, effective from 1 December 2015.

Connected citizens

In Connected citizensA regulatory strategy for the networked society and information economy, the ACMA adopted a citizen-centric focus to present a strategy for rebalancing regulatory practice in an environment where the regulators role requires administration of static regulation, facilitating new technologies and services, while also addressing a changing profile of risks and harms in the connected, digital environment.

Drawing on the work of Malcolm Sparrow from the Harvard Kennedy School of Government[footnoteRef:31], the regulators role is to mitigate risk and reduce or eliminate harm. The analysis looked at the characteristics of Australias changing networked society and information economy, including the changing profile of risks and harms. In the Australian industry context, this harm minimisation and risk mitigation is often concerned with assisting businesses and citizens manage their communications and media experience, by imposing obligations on industry participants or providing assistance to individuals and business. [31: Malcolm Sparrow, The Regulatory Craft, 2000.]

With different individual capabilities and levels of confidence evident among the community, solving problems in this environment may require highly nuanced solutions reflecting different capabilities and roles of individuals, industry suppliers and government operating in a networked environment. The risk assessment also needs to consider different attitudes towards risk and expectations about consultation and collaboration in the design of solutions. The ACMAs working hypothesis in the paper was that there are different styles of regulatory tools to address different sorts of problems to meet citizens expectations about the respective roles of individuals, industry suppliers and government.

It offered the view that the balance of regulatory interventions in the future was likely to skew more towards communication and facilitation strategies in order to address digital communications and media issues, largely because this suite of strategies is inherently more flexible and adaptable in a changing environment, compared with direct regulation.

Since that paper was released, the requirement for rebalancing of regulatory effort has remained acute, to accommodate industry innovations and changes in citizen behaviours and associated risks. In addition, responding to the governments regulation reform agenda has generated a vigorous debate in Australia about where the appropriate future balance lies between direct regulation, industry co and self-regulation and non-regulatory responses.

One of the ACMAs long-standing contentions is that in the contemporary and evolving communications environment, new risks, harms and innovations are likely to require a more flexible regulatory and often non-regulatory response to address issues. That requires a regulator equipped with a flexible toolkit to apply a response proportionate to the degree of risk or harm.

Applying the connected citizens analysis

As online communications and digital content become embedded in the experience of citizens and the community, the ACMA has worked with industry to facilitate and strengthen internet security from malware infections.

The ACMA developed the Australian Internet Security Initiative (AISI) to help address the problem of compromised computers. Compromised computers are often aggregated into large groups known as 'botnets', which are used to distribute spam and malware, host 'phishing' sites or distribute denial of service (DDoS) attacks on websites. The ACMA provides daily reports of malware infections to participating Australian internet providers identifying current malware infections resident on their networks. These providerswho cover more than 95 per cent of Australian residential internet usersare expected to use the information provided through the AISI to identify, on their networks, internet users whose computers are infected, inform those users about the infection and provide them with assistance to remove it.

The AISI is an example of a program-based response built on collaborative partnerships with industry operators that is used by the ACMA as one of its strategies for mitigating the risks caused by spam.

Emerging citizen challenges for regulatory practice

Since the exploration of citizen concepts in regulation in 2010, the ACMA has continued to observe significant changes occurring in Australias communications and media marketschanging citizen and user expectations in the way they interact with digital technologies; and consequential changes in the type and scale of risks and harms being experienced by industry operators, consumers and citizens.

At the time of the ACMAs initial analysis of citizen interests in communications and media regulation, the concept of convergence brought by the digitalisation of content and carriage informed many elements of regulatory practice. Since then, convergence pressures have been compounded by further digital disruption, emerging from the rise of IP-enabled communications and content. The sector has already seen the mass connection of individuals, businesses and other service providers. Information innovation, critically enabled by broadband, is already creating disruptive effects into other sectors of the economy and social activity.

In this chapter, the ACMA identifies a range of emerging issues for regulation in the citizen interest arising from challenges for citizens as they engage with the opportunities and challenges of digital disruption.

A key point in this analysis of disruptive effects is the continuing tension that arises from balancing

regulation designed to promote public interest outcomes and facilitate the market operations of known industry participants and control points, against

fragmented and diversified models of a highly connected and IP-enabled communications environment, where individual citizens can create their own network connections and content and become the arbiters of quality standards.

This chapter explores the pressures on regulatory settings through the lens of digital disruption developments that highlight the changing role of the citizen in communications and media regulatory arrangements. These developments include:

citizens as (network) connectors in the mass connectivity that characterises the developing Internet of Things

citizens as content users and creators in the digital content environment

citizens as standards-developers and arbiters in the sharing economy

engaging with the disengaged citizen, in particular, the risks to public interest outcomes where there remains a group of citizens disengaged with digital communications.

Citizens as the connectors in a mass connectivity environment

The emergence and dominance of IP networks in the last decade has meant citizens increasingly expect to connect and communicate seamlesslyanywhere, anyhow, anytime, while content has become increasingly non-linear, interlinked and uncontained. To mark the 25th anniversary of the creation of the world wide web, the Pew Research Center looked at the future of the internet, the web, and other digital activities and canvassed 2,558 experts and technology builders to seek their views about where society will stand by the year 2025. They found striking patterns of agreement in their predictions.[footnoteRef:32] Most study participants believe there will be: [32: Pew Research Centre, Digital Life in 2025. ]

a global, immersive, invisible, ambient networked computing environment built through the continued proliferation of smart sensors, cameras, software, databases, and massive data centres in a world-spanning information fabric known as the Internet of Things (IoT)

augmented reality enhancements to real world displays that people perceive through the use of portable/wearable/implantable technologies

disruption of business models established in the 20th centurymost notably affecting finance, entertainment, publishers of all sorts, and education

tagging, data-basing, and intelligent analytical mapping of the physical and social realms.

This digital disruption is creating an even more complex communications environment where network elements can and are being emulated in software (virtualisation), leading to more sophisticated and subtle interconnection between networks, devices, services and content.

For example, smart devices in the hands of citizens can allow them to step completely out of the established communications system by using mesh networking. Mesh networking in this fashion allows users to communicate wirelessly, by bouncing a message from one phone equipped with FireChat to another using Wi-Fi or Bluetooth antennas, allowing users to send and receive text messages entirely without data or internet. The encrypted message then keeps bouncing from phone to phone without touching carrier or ISP networks, thus avoiding costs and usual interception methods, until it reaches the intended recipient. While originally designed for people to get in touch with each other at crowded events, FireChat apparently became hugely popular in Iraq in 2014, after the country faced internet use restrictions, and was an integral part of the 2014 Hong Kong protests and 2015 Ecuadorian protests.

This mesh network example confirms that contemporary networks are not, as the engineering origin of the concept might suggest, or as conceived in existing regulatory concepts, neat and clearly delineated functional constructs. They are instead increasingly permeable, interconnected and virtualised. This momentum towards mass connectivity can foreseeably create an outcome beyond the IoT, which might for convenience be called the Internet of Everything. This is a future where digital communications and connectivity are common to and enabling of everythin