New electronic media
Whilst Ofcom has clear
statutory duties over broadcast content, it would appear to have
no statutory powers over content distributed via the internet or
3G mobile phones. This effectively means that television and
radio broadcast over cable, satellite and terrestrial platforms,
or private IP (Internet Protocol) networks running for example
over ADSL, are regulated by Ofcom. Video streaming and audio
streaming over the Internet are not regulated by Ofcom.
Sections 232 and 233, 247 and 248 of the Communications Act
2003 set out the definitions of television and radio that drive
Ofcom's external sectoral content regulation. The definitions
are not technology-specific and that is why I just said
that Ofcom would appear to have no statutory powers over
content distributed via the internet or 3G mobile phones.
Television in Section 232 of the Communications Act is
defined as a service that is to be made available for
reception to members of the public, consists (wholly or
mainly) of television programmes or electronic programme
guides. That would seem possibly to capture video streaming,
especially as broadband penetration and speeds accelerate.
However, in Section 233, television is defined as not a
two-way service. Video streaming over the Internet would
normally be seen as a part of a two-way service. However, there
is an open question in the future as to whether mobile
television via 3G may end up being classified as a type of
broadcast television. Ofcom technologists tell me that, for
example, the mobile television standard DVB-H could be defined
as broadcast television.
Spending a few moments on the statutory definitions is
important. They bring to the fore one important point. The
regulation of communications should aspire to be technology and
platform neutral, as set out in the European Directives on
telecommunications regulation. Yet in practice, achieving
technology neutrality can be very difficult to do.
Television Without Frontiers TWF
This brings me neatly to the revision of the European
Television Without Frontiers Directive that is currently
beginning to be debated.
The current TWF Directive is confined to TV broadcasting
defined as the initial transmission by wire or over the air,
including by satellite of television programmes intended for
reception by the public.
TWF was born of the desire for the European Union to have a
single market in television broadcasting and one that could
compete with the USA which has by far the biggest share of world
trade in television and feature films. TWF has both cultural and
economic objectives. TWF does not currently deal at all with
radio, just television.
On-demand services (eg point to point services such as video
on demand) are specifically excluded from the TWF Directive and
are covered by the E-Commerce Directive, the Recommendation on
the Protection of Minors and the general law.
The Commission believes that the scope of the TWF Directive
is not technologically neutral. TV services which are made
available by non-broadcast means are regulated differently to
identical services that are broadcast. This is the nub of the
matter that faces us all in the new content space. In the UK TV
broadcasters are required to be accurate, fair, impartial, not
cause harm and offence, not invade privacy without justification: all the socalled Tier One negative content rules and
principles set out in the Ofcom Broadcasting Code. And these are
all things which our research tells us that British people want
from their broadcasting.
But something that could look very like one-way TV
broadcasting but is delivered over the two-way public internet
need not follow these rules. We at Ofcom are able to regulate
broadcasters' programme output on air following complaints
about unfairness but have no statutory powers as far as their
linked websites are concerned.
Audiovisual content on the Internet
Given this regulatory asymmetry, what is to be done.
There are really three options: do nothing; roll out sectoral content regulation on to the internet; or roll back
sectoral broadcast regulation to allow for equivalence of
treatment with internet broadcasting as it comes of age.
Let me analyse these options, speaking personally as an Ofcom
board member but NOT representing the definitive Ofcom view. The
reason for this is that Ofcom has not yet given its view on
these matters. Much research, evidence gathering and thinking
will go on before Ofcom formulates a view, triggered by the
forthcoming debate on revisions to the TWF directive. Let me try
and give you a flavour of how Ofcom might think about these
things.
Do nothing
This must clearly be an attraction for Ofcom. As I noted this
morning, one of Ofcom's key regulatory principles is bias
against intervention. Ofcom does not seek to extend its
powers. Indeed in its first two years it has demonstrated its
desire to move towards more self- and co-regulation because,
philosophically, this appears to us generally more appropriate
in the digital multichannel age. For example, we no longer
regulate the content of television and radio adverts: that is
now done under a co-regulatory arrangement by the Advertising
Standards Authority (ASA). The ASA today regulates all forms of
advertising from print to billboards to broadcasting and
the internet: now that is true convergence and platform
neutrality.
I sometimes when speaking to audiences in the UK about
content regulation assert that there are two regulators in your
living room: Ofcom and Offswitch.
In reality, the option of do nothing: in the sense
of take no action and provide no guidance - is not likely to be
serious given legitimate citizen and consumer concerns and our
statutory duties to further their interests.
But a modified do nothing strategy is one which will
undoubtedly be explored further in the debate ahead. This would
start from the basis of ensuring that illegal audiovisual
content: content which breaches the law: is blocked by
internet service providers (ISPs) in the UK. At the moment this
happens with illegal child abuse sites thanks to the very
determined efforts of the Internet Watch Foundation (IWF).
British Telecom runs a Cleanfeed service. This blocks websites
identified by the Internet Watch Foundation which itself works
closely with the police. Already, the proportion of material
reported to the IWF found to be illegal which is hosted in the
UK has fallen from 18% in 1996 to less than 1% for the past
several years.
But there are issues to resolve. Not all ISPs use Cleanfeed.
UK ISPs want to be seen as no more than common carriers/content
carriers and therefore believe they should not be held
responsible for the content they distribute. As a result, some
ISPs tend to be shy about promoting the use of Cleanfeed. There
is a strong historical/cultural association of the internet with
no censorship and no content regulation: the wild west of
content in the digital world.
Personally, I cannot understand why ISPs in the UK, a
democratic country run under the rule of law, should not
encourage and be seen to encourage the blocking of sites
containing content which is clearly in breach of UK law, and
which their customers may find offensive. The original rules of
common carriage, dating from English transport/freight
policy in the 17th Century, and taken over into US telecoms
regulation, require the carrier to carry all material at
regulated prices but only material that is within the law. Since
more and more ISPs are willing to have illegal child abuse sites
blocked, then they have accepted one basic principle about being
a common carrier: you are not required to carry illegal
content once that illegal content has been notified to you.
There is one other issue: the blocking of sites in the UK
is done purely for child abuse cases because that is the remit
of the Internet Watch Foundation. Blocking does not yet extend
to other illegal sites.
Illegal content has two dimensions: content which it is
illegal to create or publish/host (for example, incitement to
racial hatred) and content which it is illegal to create or
publish/host and which additionally it is illegal simply
to access/view/download (for instance child abuse images).
Modified do nothing would take as its starting point
the principle that all websites, wherever hosted in the world
but deemed illegal to view under UK law, should be blocked in
the UK.
The real problem then arises with sites which are grossly
offensive but not illegal. These can be subdivided into material
which is harmful and material which is simply offensive.
These two types of material: harmful and offensive - are very
effectively handled by the type of code-based content regulation
of broadcasters we do at Ofcom. Under the modified do nothing
option, there would be strong encouragement to self-regulation
and blocking for harmful sites, and the use of labelling,
classification, filtering and parental control systems for
offensive sites. Attempts to do this so far in the UK internet
space have not been especially successful.
One could imagine moving towards a situation whereby a body
like the Internet Watch Foundation could be given the
responsibility to identify material that was harmful but not
illegal. Then content providers and ISPs in the UK could be
invited to block access to such material, not on legal grounds
but on the basis of corporate social responsibility towards
their customers. This might be a non-statutory, self-regulatory
approach that would be relatively quick and cheap to establish
and could operate sensitively and flexibly. Such action could
stop any growing demands for the introduction of external
statutory regulation.
So the modified do nothing strategy would enforce the
blocking of illegal material beyond just child abuse sites;
would encourage a self-regulatory approach to material that was
legal but harmful; would encourage classification/filtering
systems for material that was legal but offensive; and would use
the general law (as it stands, or with necessary revisions) to
stop other problems such as phishing, hacking and other
fraudulent uses of the technology.
The internet is not the wild west. The internet is already
regulated by the general law, just like the print media and the
theatre. The music industry in the UK is now actively pursuing
people found illegally pirating copyrighted music material on
peer to peer file-sharing networks.
Roll out sectoral content regulation to the internet
This appears to be the option that the European Commission is
likely to favour. The scope of the new TWF directive is likely
to cover all audiovisual content (AVC) services made up of
moving pictures and sound including material delivered via
the internet and 3G phones, delivered to the general public by electronic communications networks. The
Commission may propose that AVC services should be divided into
linear and non-linear, with linear being like television
broadcasting and non-linear being downloadable content, such as
video on demand. The linear services on all platforms including
the internet would be subject to a stricter tier of regulation
along the lines of the current TWF rules, modified as necessary.
The non-linear services on all platforms including the internet
would be subject to a basic tier of obligations concerned with
the protection of minors and human dignity, advertising rules
and the right to reply (ie fairness).
Ofcom is considering its response to this but starts, I
readily admit, from a residual nervousness about extending the
scope of the Directive to the internet. We are suggesting the
Commission approaches the task of any revision of the Directive
mindful of four principles:
- Be evidence-based. If more protection
is going to be introduced, evidence is needed that current
levels of protection are inadequate.
- Produce a net benefit. A regulatory
impact assessment must be conducted and changes introduced
only if they yield a net benefit to consumers and citizens.
- Be proportionate. A key regulatory
principle in the UK and Europe in our modern world.
- Be enforceable using self and co-regulation
in preference to state-based sectoral enforcement.
I personally will need convincing that the distinction
between linear and non-linear will be easy to draw just as I am
today increasingly confused as to what should or should not be
defined as broadcasting. When I listen to radio stations on the
internet, does the buffering delay at the start, required by the
limitations of packet switching protocols, make the radio
broadcast linear or non-linear? When does buffering become
downloading and therefore non-linear? If we are really serious
about regulatory equivalence and technology neutrality, might it
also be difficult to justify regulating a television programme
within a non-linear service differently from the very same
programme within a linear service?
Roll back existing content regulation rules on
broadcasters
This third policy option is already happening. If you compare
the IBA's regulation of broadcasting in the 1980s in the UK
with Ofcom's today, a lot of rolling back has happened. I have
already mentioned the move from pre-transmission to
post-transmission regulation. In 1990 I joined the Radio
Authority - one of the three children of the IBA, alongside the
BSC and the ITC. One of the first policy decisions Radio
Authority Members made was to stop all regulation of commercial
minutage volumes on commercial radio. The market has regulated
minima and maxima perfectly well since. Obviously if you have a
monopoly commercial radio provider, this would not happen.
Commercial minutage volumes on television are, by contrast,
still regulated: indeed they form part of the current
Television Without Frontiers Directive.
Conclusion
I have tried to give you a flavour of the issues we face in
the UK now that over 60% of homes enjoy digital multichannel
television and radio, now that more homes are using broadband to
access the internet than dial-up, now that revenues from mobile
phones are now greater than from fixed phones.
I have restricted my remarks in the time available to content
regulation in terms of what we in the UK jargon call Tier One: negative content regulation, what broadcasters should not
do. I have not had time to talk about other important tiers of
content regulation (eg quotas for local content production, or
public service broadcasting remits). These are also under
considerable pressure in the multiplatform multichannel digital
age and will require great care and nurturing: perhaps we
could talk about these in the questions that follow.
The world HAS changed. The regulation of two or three or four
channels is fundamentally different to regulating 500. The
arrival of the internet platform does introduce regulatory
asymmetry. The balance has to be got right, for example, between
the traditional British respect for freedom of speech, freedom
of religion and the new challenges posed by websites inciting
religious and racial hatred.
We may also be moving away from a world where a small group
of people in society create and distribute content to the rest
of us, and towards an era of much greater access to the spot in
front of the camera and in front of the microphone.
The new disruptive technologies of digital convergence mean
that many many more citizens are able to become content
producers and publishers, just as desktop publishing software on
PCs twenty years ago radically reduced the elitism in print
publishing and fundamentally changed the structure of the
printing industry. Think now of blogging, podcasting, peer to
peer file sharing, and the recent use by newspapers and the
broadcast media of pictures taken by London Underground
commuters with their 3G phones during the 7th July bombing
attacks.
The Church in Europe in the Middle Ages did not like the
bible being published in the native language, for example Martin
Luther's German, because it broke the elitist power of the
clerics hiding behind the Latin language.
We are living through those seismic shifts in society again,
and again, and again.
