Home > Media and Analysts > Speeches and Presentations > 2005 > Sep > TWF

21|09|05

Introductory remarks at the Liverpool Conference on the review of the EU Television Without Frontiers ("TWF") Directive, 21 September 2005

David Currie, Ofcom Chairman

I am delighted to be chairing this important debate.

I think it is the most important issue before us today. It will determine the tone of the new Directive. It will demonstrate, more than anything else we might achieve, that we intend to create a framework that will foster growth and innovation, rather than clinging to the past.

Because it is so important, I want briefly to outline Ofcom’s views at the outset. I also think it will be helpful to lay out our position at the start because I suspect that it encapsulates many of the points of practice as well as principle that we will need to address this morning.

It is easy to see the attractions of revising the scope of the Directive. There are now many new technologies – albeit mostly in their early stages of commercial development – which could be used to deliver audio-visual entertainment services that will compete for viewers’ attention with traditional broadcasting.

We heard about several such services, including mobile TV and video on demand over DSL, yesterday afternoon. In some countries, these technologies are already testing the boundaries of the applicable national laws in relation to broadcasting.

However, a revision of scope will have major implications not just for regulators and regulated, but for the European economy. There is an ongoing and lively debate about the impact of broadband infrastructure on competitiveness. I suspect that the real prize for the economy comes not from the creation of the infrastructure per se, but from the utilisation of that infrastructure to create new types of content and new types of content business, as is now happening in South Korea and Japan.

We in Ofcom start from the position that is doubtful whether the best way to promote such new content and new business models in Europe is through more regulation. So, a first request on our part has been for the Commission to assess carefully the costs and benefits of regulating content delivered over non-broadcast platforms – looking at the full range of services potentially affected, and at both the indirect and direct compliance costs of new regulation. I was interested to hear Senor Balsemao make a similar point in his thoughtful speech last night.

And in addressing the costs and benefits, we would urge the Commission to consider the extent to which harmonisation of regulation is a real as opposed to theoretical benefit, particularly given that this is a minimum harmonisation measure which leaves Member States free to impose additional rules on service providers located in their territory. This issue needs careful empirical examination.

Ofcom’s concern is that the practical benefits to producers of a harmonised regime may be finely balanced in comparison with the costs of additional regulation, particularly in Member States like the UK which do not currently regulate within this ‘extended’ territory. And while the core principles outlined by the Commission in relation to the basic tier of regulation, including protection of minors and the safeguarding of human dignity, in principle confer significant benefits to citizens and consumers, nevertheless, as the Commission itself has repeatedly acknowledged, many, possibly all, of these benefits can be achieved through the empowerment of consumers to protect themselves through mechanisms such as rating, filtering and parental controls, coupled with effective industry initiatives to block access to some forms of material. We need to avoid regulatory double-banking.

This debate of course operates in parallel to the debate about potential tightening of the criminal law, where the UK Government has now identified possible scope to extend criminal penalties for possession of certain forms of electronic image beyond the established remit of the law in relation to child pornography, to include certain other forms of extreme pornography. We start from a belief that such a combination of tightened criminal law, coupled with action by service providers to empower consumers to protect themselves and their loved ones from harmful, but not necessarily illegal content, could go a long way to deliver the benefits claimed for extending the scope of TWF.

Conversely, we have real concern as to whether it is feasible to adopt a traditional, broadcast-type regulatory model for content delivered on new media platforms. In broadcasting, it is possible to impose additional rules beyond the straightforward criminal law because broadcasters require regulators’ permission to operate – there is, in the form of an operating or spectrum licence, a peg on which to hang regulatory rules. For some forms of new media distribution, similar pegs might be found – for instance for mobile content. But for pure, internet-delivered content it is difficult to see how any meaningful licensing controls could be imposed and hence how any sanction could be enforced. These problems arise even if the regulatory instrument of choice is a co-regulatory scheme in which industry operates against a long-stop of possible enforcement action by the regulator.

And it would be a terrible irony if the act of trying to impose top-down rules on those who can be reached via traditional regulation has the perverse effect of rewarding distribution across platforms which we cannot reach.

We accept that, even with no extension of scope, it is necessary to draw the line between those services that will attract regulation, and those that won’t. And we have no illusion that this line will prove increasingly difficult to draw as services and platforms converge. Nevertheless, we are not confident that the proposed split between linear and non-linear will prove sufficiently durable or future-proofed, though it may be that the Commission’s detailed proposals will move this debate on further.

On this issue, we believe it is important that before proceeding to the point of drafting a Directive, the Commission should convene a panel of experts from regulators and governments to consider the practicality of whatever split is agreed; they are, after all, the people who will have to do the job.

So Ofcom’s view, boiled down to its essential, is one of scepticism about the case made for the extension of scope, in so far as it seeks to extend regulation to services currently in their infancy, and concern about the practicalities involved. We also, as the statutory body charged with the promotion of media literacy in the UK, start with a preference for finding solutions rooted in consumer empowerment through the exercise of informed choice.

I note that this view is close to that expressed by some of yesterday afternoon’s panellists – typically those representing the newer platforms and service providers.

But I also note from yesterday afternoon the statement from Director-General Colasante – the very clear and welcome statement – that there was no intention to extend regulation to the internet. I believe this should therefore be our starting point today, and I suggest that we should begin by inviting Jean-Eric de Cockbourne to amplify those comments, and in particular, to address the practical questions which flow from it. Amongst the other questions, it would be good for us to answer this morning, I suggest that in particular we need to understand:

• how extending the scope of the directive to cover non-linear content will be achieved without imposing regulation on the internet;
• what are the practical benefits of harmonisation when it is minimum harmonisation, given that there is already a basic level of protection in place;
• whether, in those countries where this protection is afforded by self and co-regulation, we can realistically avoid this being an increase in regulation; and
• whether the current proposals can be achieved without requiring some form of licensing regime to those providing non-linear content.

Thank you.

Back to top