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.