Home > Media and Analysts > Speeches and Presentations > 2006 > Jun > European Parliament

22|06|06

European Parliament - Public Hearing on the Audiovisual Media Services Directive: 1 June 2006

Session 1: Scope: A vision of the future

Ofcom’s view: Tim Suter, Partner, Content & Standards

Ladies and Gentlemen:

I am delighted to be here this afternoon to discuss this important and far-reaching proposal.

Let me begin by explaining a little about Ofcom, and my role in it.

The Office of Communications is the converged independent regulatory authority for communications markets in the UK. Our remit covers broadcasting, telecoms and new media and we are responsible for both content and economic regulation.

I lead Ofcom’s activities in relation to content regulation. That includes the positive obligations, such as independent production quotas, that we place on UK broadcasters, as well as drafting and enforcing detailed codes covering editorial standards, protection of minors, advertising and right of reply. Increasingly, we also have responsibilities in relation to other forms of media, though as I will explain in more detail later, the form of regulatory intervention in those markets is significantly different to that in broadcasting.

As the product ourselves of a legislative response to convergence, we have a special interest in the AVMS Directive. And we believe we have some practical insights to offer on how to achieve regulatory policy objectives in the communications sector in an effective and successful manner.

The Directive

I’m sure it is well known by now that the UK Government has expressed significant reservations about the Commission’s proposals.

Ofcom shares those reservations. But let me emphasise that there is much in the proposals that we welcome:

We agree that the definition of broadcasting needs to be modernised to reflect new technological realities. It makes no sense to regulate broadcasting in different ways on different delivery platforms.
We also welcome the removal of outdated controls on television advertising and the Commission’s intention to provide more commercial flexibility to broadcasters. This is why we are surprised with the Commission proposal to further restrict interruptions for certain programmes from 30 to 35 minutes.
Finally, we support the retention of the country of origin principle to ensure that television broadcasters come under the jurisdiction of only one Member State. It is Ofcom’s view that this remains the only sensible way of addressing the regulation of broadcasting at the EU level.

Concerns

But let me turn to our central concern – and the subject of your first session. In our view, the extension of scope implied by the Commission’s current proposal goes well beyond what is required to modernise the directive to account for new technological forms of broadcasting. It goes well beyond anything that would be required to capture even the most imaginatively defined ‘TV-like’ services:

It would catch videoblogs. Many blogs now include AV content and take advertising, thus ‘commercialising’ the site and placing it within the AVMS definition used by the Commission. For context, there are 800,000 bloggers active in the UK today, and the number is growing exponentially. As broadband penetration increases, it is likely that the amount of video content in these blogs will increase too.
It would catch online video games, bringing a new, exciting and important industry within the scope of regulation designed for an entirely different purpose and (perversely in our view) setting a different regulatory regime for the online and offline versions of the same game.
It would bring the thousand of individuals creating so-called ‘user generated content’ – for example, clips recorded on mobile phones and uploaded to sites such as YouTube and MySpace – within the scope of regulation.

All of these services are almost the diametrical opposite of the mass media which is our claimed target. The special considerations which called for the regulation of broadcast content –that combination of reach, of inherent persuasive power of the content and a relative lack of consumer control – simply do not apply to these services.

Arguments in response

We have aired these concerns for some time now. It’s fair to say that not everyone agrees with, or understands our concerns. I thought it would be helpful to explain some of the counter-arguments that have been put to us.

1. These are issues of detail, which can be worked out through the process of national implementation.

In Ofcom we feel particularly strongly about this. The question of whether thousands of bloggers are in or out of scope is more than a mere detail. We should be aiming to clearly establish at the outset the scope of the Directive in a way which business and consumers can understand. The idea that national authorities should try and resolve scope during the implementation phase would cause confusion and anxiety, and critically would undermine the very single market benefits which this directive claims to achieve.

2. That we are misunderstanding the Commission’s text which is not intended to catch these services.

As always, there is scope for different interpretations of the same text, but I believe a careful reading of the Commission’s helpful paper confirms what I have said regarding scope. If this was not the intention, and if you agree that services I have described should not be caught, then you in the Parliament can help us by proposing amendments which would put the matter beyond doubt, in order to ensure that there is legal certainty both for European business and for consumers.

3. That Ofcom is right that such services are caught – but the practical effect is minimal.

Finally, it has been suggested that Ofcom is overstating the need for additional regulation to implement these proposals. It has also been suggested that, even if additional regulation is needed, the impact will be minimal because it is a “light touch” regime.

As you will know, the core basic tier requirements relate to the protection of minors, the prohibition of expressions of hatred on various grounds (including new ones like age and disability), and the establishment of qualitative requirements of the like that currently apply to broadcasting (for example, a prohibition of tobacco advertising or advertising of alcoholic beverages aimed at minors).

All of these are policy aims that no one will disagree with.

The first question that we need to ask ourselves as legislators is how these rules can be implemented at national level.

Many countries, including the UK have constitutional, criminal and other general horizontal laws, covering such matters. However, our legal analysis shows that the Commission’s proposals go beyond the requirements of national criminal law or existing general horizontal laws.

This is hardly surprising: content regulation by its very nature deals largely with content that is legal but distasteful and offensive to some of the more vulnerable in society, particularly children. This means that, in order to implement the requirements of the Directive, some form of regulatory system for new audiovisual media services, which goes beyond existing law, will be needed.

It doesn’t matter whether this is in the form of individual licensing, class licensing or general authorisations overseen by Ofcom. In each case, we will need clearly established means by which complainants can enforce their legal rights under the Directive.

This raises two important issues.

The first one is who we will license. In other words, who are we trying to regulate? Is it the content creator? Is it the individual or company providing a platform for distribution? Is it the person hosting or providing access to the content (for example, the owner of the site)? We need to bear in mind that, in many cases, these intermediaries will not have editorial control over the content.

The second issue is how to assess compliance with the regime established in codes, licenses or equivalent regulatory instruments. Already, as broadcasting regulators judging content across several hundred different channels offering a wide range of different services, our most important tool is the “context” in which the content was transmitted. The questions we ask are typically: what audience was it intended for? What time was it broadcast? What access controls ensured that children would be unlikely to view? And so on.

The Commission’s proposal is effectively extending such context-based regulation now to new media. How will I apply the questions I use in relation to broadcast content to the kind of web-based services I have previously described – the likes of YouTube and MySpace? Here, the context in which the content is viewed may be either entirely in the hands of the user, or in the hands of someone other than the content creator – perhaps the internet service provider or the broadband operator or simply another website which has a link to the site on which the content was first hosted.

Solutions

Let me be clear again. We are fully in favour of concerted action to protect the vulnerable – especially our children – and to deter the dissemination of the most hateful content, whatever the medium. The question is not whether there should be action, but what form of action is best guaranteed to provide this protection.

Ofcom believes that the new media world is inherently more complex and fast-moving than traditional broadcasting. And our policy response to problematic content needs to be equally dynamic.

Let me outline briefly the kind of regulatory architecture that we envisage as the most appropriate and effective.

First, we need effective laws to criminalise the worst forms of content, whatever the medium of dissemination.

Second, we need effective statutory content regulation dealing with those services that continue to have the characteristics of television I described before.

Third, we need action from ISPs and telecoms operators to help to detect and block such content. In the UK, we have an effective self-regulatory model for this – the internet watch foundation.

Fourth, and crucially, we need consumers to be armed with the tools to protect themselves and their loved ones, through the kind of filtering and labelling which is increasingly being offered as standard by service providers, and to have the necessary skills to use such tools. Developing this ‘media literacy’ is a key part of Ofcom’s remit, and a new duty placed upon us under the Communications Act.

In summary, we believe that such combination of self-regulation and media literacy, is the most effective way to regulate content in the new media environment.

As for ‘TV-like’ services where consumers may expect some but not all of the features of traditional TV regulation, we need a customised version of our broadcasting codes, adapted to reflect the reality of a different user experience. Again, the UK has just such a scheme for video-on-demand, put in place by the industry in co-operation with the Government – the Association of TV on Demand – ATVOD for short.

This and similar self-regulatory initiatives constitute a major commitment in time and effort by government, regulators, industry and indeed consumers themselves. Our fear is that in attempting to impose a top-down regulatory solution the Commission proposals may actually threaten our ability to maintain the effective solutions which are already in place in the UK. They might also jeopardise, rather than encourage, current and planned industry initiatives in this area in other Member States.

Coda – Self- and Co- regulation

This brings me to my final point today. There is a separate session in the programme dedicated to the issue of self and co-regulation. I do not wish to intrude into that debate, but the issue of scope and the question of whether we can retain effective self-regulatory schemes are closely linked in our minds.

Whilst this is of course a legal question, for Ofcom the practical aspect is clear. We want the industry to take full responsibility for the design, organisation, funding and operation of regulatory schemes. By doing so, the industry has a clear obligation to make regulation a success and the capability to adapt to fast changing market conditions much faster than Governments or regulators can. This approach is far preferable to a hybrid model in which the scheme is effectively a creature of the government or the regulator, with the industry restricted to picking up the bills.

So if there is to be any extension of scope, it must be achievable through a form of proper ‘self-regulation’ which meets these criteria.

We are clear that the Directive as currently drafted cannot be implemented through pure self-regulation. There must be some form of backstop legislation to ensure enforcement – and this makes it a form of co-, not self-, regulation. The key question is what form that enforcement regime needs to take in order for implementation of the Directive to comply with European law.

Conclusion

As I said at the outset, there is much to commend in the Commission’s proposal. But let me leave you with a final plea. Regulating content is our day-to-day business. We want whatever comes out of this process to be practicable to implement. The Parliament has a vital role to play in ensuring that the Commission’s proposals – admirable in their aims – are truly fit for purpose in this complex and fast-moving environment.