The recent changes to the Films and Publications Amendment Bill makes a distinction between a commercial online distributor and a non-commercial online distributor. This change helps to prevent private users from getting caught up in the regulatory machine. But it isn’t clear enough, which causes even more problems.

What is a commercial online distributor?

The updated amendment bill defines commercial online distributors as:

distributors in relation to films, games and publications which are distributed using the internet and excludes non-commercial online distributors

It goes on to define non-commercial online distributors as:

any person who distributes content using the internet, or enables content to be distributed by a user of online services, for personal or private purposes

What does this mean for us?

While the intentions are good, these definitions aren’t effective. “Commercial online distributor” is an exceptionally broad category. By default, a person distributing content online will be regarded as doing so commercially. The only way to avoid this is to prove that they are distributing the content for “personal or private purposes”.

But “personal or private purposes” are not defined terms in the bill, and are inherently vague. They also lead to many examples of grey areas, where the purpose for distributing content is partly personal, and partly commercial. The clearest example of this is hobbyist vloggers: Youtube content producers or Twitch livestreamers. Many people in these industries have content that is personal and commercial at the same time, because they are “selling” their personal viewpoints. Others may have found their content change over time – what may have started as personal could become commercial.

The definitions could feel out of place even with distributors who do fall into the commercial category. Companies that upload videos discussing their product offerings will obviously be doing so for commercial purposes. But it seems inappropriate to require them to classify these videos, or even apply for an exemption from this requirement.

Today there is a very large grey area between “commercial use” and “personal use”, particularly online. If the bill is passed with the current definitions, it will put at risk many of the various online distributors that fall into this no man’s land.