Television
without Frontiers but with Frontiers
By Paul Taverner of
Ofwatch
at Westminster Media Forum's TVWF consultation seminar: The View from UK
Stakeholders
held on the 20th July.
A more complete
article is available on Ofwatch
I was fortunate enough to attended a Westminster Media Forum seminar
concerning the revision of the Television Without Frontiers (TVWF)
directive last Wednesday (20th July). The TVWF directive is of great
importance to adult service consumers as it lays down the basic
regulation required for television services across Europe. It is of
particular interest right now as the European Commission have announced
their intention to expand this directive to include many web based
services.
There is still a great deal of work to be done before the new version
of the directive is anywhere near ready, but the basic thrust is clear.
Television and Internet technologies are converging and what we need (so
we are told) is more regulation that includes Internet services.
Regulation will continue for traditional broadcast services in much the
same way as it does now, but will be extended to include IPTV, streamed
content and near Video On Demand under the heading of linear services.
In addition a new tier of regulation will be created introducing basic
regulation with fewer restrictions for non-linear services (where the
consumer decides the schedule) such as full VOD services and similar.
The subject of the seminar was the
five discussion papers that were released on the 11th July to prompt
debate over draft proposals. These draft proposals were a very mixed
bag.
Some of the suggestions were highly controversial such as extending
the existing broadcasting right of reply to web based services. Perhaps
not a serious issue from an adult service perspective, but that one will
run and run nevertheless. Expect to see it in the papers when the time
comes in the coming months and years ahead.
Some of the suggestions were totally ill conceived and even the
rather conservative Chris Bone from the DCMS was heard to mutter that
“some of these proposals loose touch with reality” when faced with
suggestions that foreign web sites might choose to register in one
country or another to avoid being regulated by all nations separately.
There was great support for the idea that trans frontier
communications should remain unrestricted, indeed this is such a
fundamental point that the directive is named after it (i.e. Television
Without Frontiers). There was also support for the idea of
continuing to allow nation states their national margin of appreciation
when interpreting the TVWF principles over what content was acceptable
and where lines should be drawn in their territory, but there wasn’t any
real idea of what would happen when you mixed these two principles
together in a fully IPTV enabled world, or any appreciation that they
are in fact mutually exclusive.
If trans frontier communications are to remain truly open and free
and if any person in any country can watch any content from anywhere,
what is the point in a national margin of appreciation? But if every
nation needs to enforce its own national margin, then it will be
necessary to ring fence each nation with barriers to ensure that content
that falls outside the national margin is kept out. Hardly in keeping
with open communications and probably entirely impractical as well.
Of course this problem is already with us today, but has been limited
for various technological, financial, geographical and political
reasons. Whilst Transgression of one national margin into another does
occur (e.g. Euro adult services such as Satisfaction TV), it is limited
in scope and within politically manageable proportions. But IPTV will
bring this issue into sharp focus by removing the technological,
financial and geographical obstacles.
The massive force of technological progress pushing towards open
trans frontier communications would seem to be unstoppable and yet
national Governments resolve to maintain control at all costs would
appear to be immovable. So there is guaranteed to be tears before
bedtime on this issue not to mention a serious risk of creating a number
of white elephant regulations for political purposes in the process.
The real problem was highlighted by one of the other speakers at the
seminar who said “legislators and regulators are trying to regulate in a
world that they don’t understand”.
So there is no answer to this conflict at the moment, but there is
certainly the need for us to get involved in the
European consultation on these matters. More of that later.
Specific questions posed by Ofwatch
Paul Tavener:
I
would like to ask what is going to happen when the national margin of
appreciation meets the future reality of Internet Protocol TV. In a
world where citizens from any nation can access any television service
from any other nation what place is left for the national margin of
appreciation over what is acceptable to broadcast? And on that note I
would also like to ask him what happened to the request for a
proscription order for Satisfaction Television that the ITC requested
almost five years ago? Is the minister still
considering the matter?
Chris Bone:OK
I'll answer the second question first. Um ya we, er, still have that
under consideration. You may or may not know that there was actually a
proscription order posted earlier this year against another television
service which has since gone off the air; nice to know. And we're still
considering in the light of that and various other legal considerations
what can or can not be done about Satisfaction so there we are.
As regards the first question I think this is perhaps where I say
ask the commission what they think, because there is clearly a major
issue about this. If there is not, and undoubtedly there never will be
in our lifetimes, world wide sort of international control of what's
available on the web then people are going to be able to get what they
want through the web. There's only so much that nation states and EU
commissioners can do. There are co-regulatory and self regulatory
solutions, we have found, for example through the work of the Internet
Watch Foundation over the last few years that the amount of unacceptable
child pornography coming out of the UK has diminished very markedly.
That doesn't stop it being available unfortunately if people want to see
it, but it's not coming from the UK anymore and it does show that
solutions which involve the operators themselves getting together with
Governments and regulators and trawling there own content on a notice
and take down basis, these solutions, do work and that's all I can say
about that.
Paul Tavener:
What is going to happen to the national margin of appreciation in the
future when we have Internet Protocol TV and where citizens from any
nation can access any television service from any other nation?
Tim Suter
of Ofcom:
Well to the extent that services are regulated by
virtue of a licence, they are regulated by virtue of a licence that is
handled through Ofcom and it's codes and where that regulation doesn't
run to unlicensed services, such as services delivered over the
Internet, they are not licensed in the same way.
Paul Tavener:
The question really was
why are we having a big debate about what the regulation is in this
country when really the debate needs to be in Europe. It's a Europe
based issue. If we can access content from anywhere then what is the
point in having specific UK regulation if we can access French services,
Polish services, whatever services?
Tim Suter
Well I think there is a
principle of regulation that has been fully reflected in the recent
comments about the country of origin principle. A lot of content
regulation is culturally specific and that is part of the point of it
and we need to recognise that and therefore there is a sense
that there is a basic set of rules that can be
adapted within certain frameworks by content regulators in member
states. The subsidiarity principle is terribly important. I don't think
the fact that something is necessarily available somewhere else or not
available somewhere else should be the determining factor for what we as
a society decide we want to have.
The tentative proposals
Chris Bone (head of International broadcasting at the Department of
Culture Media and Sport) gave us an outline of the initial thinking:
Existing regulations covering traditional broadcast television should
be extended to include new Internet based services such as IPTV and VOD.
There should be two tiers of regulation with 'linear' services covering
existing television, IPTV and near VOD where the broadcaster decides the
schedule and where the rules will be “detailed”
(in other words strict), and “non-linear”
services for VOD and similar services where the viewer decides the
schedule and where the rules will be “basic”
(in other words less strict). All Regulations should be technologically
neutral meaning that the same rules apply regardless of the means of
transmission. Rules for the basic tier of regulation should include:
-
Protection of minors and human dignity
-
Identification of commercial communications
-
Minimum qualitative obligations regarding commercial
communication
-
Right of reply
-
Basic identification / masthead requirements.
The right of reply requirement will be hugely
controversial and may not make it into the final directive, but as far
as protection of minors and human dignity were concerned there was less
controversy and this is what the focus groups had to say:
“The implementation of the TVWF Directive in the Member
States shows that there are no European standards of public decency
which would allow the terms “pornography” or “gratuitous violence” to be
defined at European level. It therefore should to be left to the Member
States to define these notions. Although the level of protection should
be similar notwithstanding the linear or non linear character of the
service, the means employed to protect minors and human dignity would
vary according to the characteristics of the service.”
One key point made was that the country of origin
principle should be retained. The country of origin principle means that
any services must be regulated by one country and only one country.
Despite this there was still some pressure to water down the existing
principle allowing exceptions in cases where broadcasters have been
established in another country with the sole intention of circumventing
the target countries rules (e.g. Red Hot Dutch etc) and new powers to
restrict retransmission within a target country in some circumstances.
Timetable
- 11th July: Issue papers released for discussion
- 5th September: Closing date for comments from the public
- 20th-22nd September: Major conference in Liverpool discussing
TVWF issues
- Late 2005: draft directive white paper
- 2006/7 council of ministers and European Parliament start to
process the draft directive
- mid/late 2007 New audio-visual content directive
- 2010 incorporated into UK law
All of the
discussion papers are available for those who wish to read more.
Westminster media forum will make electronic copies of the seminar
discussions available in a months time.
The next big event will be an EU conference in Liverpool where more
than 500 regulators, legislators and experts from the broadcasting
industry from across Europe will meet to discuss the new directive. It
will assist the European Commission in developing its proposals for the
revision of the directive. I was given the opportunity to create a
600 word article that will be included as part of the information
pack that will be given to all 500 delegates at the Liverpool
conference. Hopefully at least some of them will read it.