Examination of Witnesses (Questions 360-368)|
THURSDAY 13 JUNE 2002
360. You would not like to be on the inside
of the tent?
(Mr Collins) We would like a representative inside
361. There is no point in you having a representative.
(Mr Collins) I do not think we say in our submission
that we would like a representative if the board has no remit
for Internet content.
362. I am trying to get to whether you would
prefer to have a representative and the board to have a remit
for Internet content?
(Mr Collins) No.
363. You would rather not have a representative?
(Mr Collins) At this stage if it pans out as I have
suggested and the content board has only promotional and complementary
powers with regard to Internet content, then we would not require
a representative on the content board.
364. This is a question I nearly asked an earlier
witness. All these people talking about the content board see
it as interfering busy bodies controlling content, but it has
got a rather important role in telling the main board what the
consequences of financial economic regulation are going to be
in terms of content. Surely you have a keen interest in making
sure that the decisions taken on financial and economic matters
are not going to have damaging effects for others on likely content
usage? Without getting into "let's regulate content",
the board has got to be informed about what the consequences of
economic decisions may be. We have already seen in previous history
that the decisions taken on financial and economic affairs may
have very profound effects for the industry so surely you want
to have some input on that?
(Mr Collins) We are trying to be reasonable. You were
mentioning earlier that one company was trying to have its cake
and eat three others. I am not sure it is appropriate but we would
be very happy to be represented on the board and for the board
to have no remit over Internet content. If that is what you are
suggesting then we will be very pleased to be on the content board.
365. The E-Commerce Directive explicitly absolves
intermediaries from liability and you have suggested in your evidence
that ISPs ought to be exempt from sanctions over broadcast content
under this Bill for which they did not have editorial control.
Explain the reasons and why you are saying that?
(Mr Collins) This was not a very major point of the
submission but it is a point to note. If the definitions in clauses
154, 155 and 238 for "electronic visual programme guide",
"relevant ancillary services","two-way service",
"general public" and "broadcasting distribution",
etcetera, are not 100 per cent clear then some Internet content
which is hosted or cashed or transmitted through a conduit could
be covered, which is why we would like an explicit reference to
the provisions in Articles 12 to 14 of the E-Commerce Directive.
It need not be in the Bill; it could equally be in the Explanatory
366. With convergence there has been quite some
concern over the phrase "licensable content and services"
in the Bill. The Bill provides a mechanism for the Secretary of
State by means of statutory instrument to change that definition
according to circumstance. There is a good reason for the Secretary
of State to do it that way because there is an accountability
then to Parliament and there would not be if OFCOM itself did
it. In your submission you have said rather than having a common
sense duty to consult the industry both the Secretary of State
and OFCOM should have a statutory duty to consult you. Given this
framework that has been proposed in the Bill and that you are
proposing, we would like to get a feel for how often or how frequently
you expect this one of many definitions to have to change to reflect
technology in particular. Also are the procedures in the Bill
as it stands practical to put those amendments into practice given
their potential frequency?
(Mr Collins) The key point really is that initial
definitions are clear. That is the first point. Of course, they
will need updating at some point. Who knows how often they will
need to be revised. What we ask is that there is an obligation
placed upon the Secretary of State to consult with all stakeholders
really so that the revised definitions are acceptable to all.
I do not think this is a particularly controversial part of our
(Mr Lansman) Your question almost poses the question
can we predict what will happen in the future and the answer is
that it is extremely difficult to do this. All the people who
give evidence before this scrutiny committee would find that sort
of question very difficult to answer. While we accept that the
Secretary of State must be able to make changes to adapt to changes
in what is happening in broadcasting and media and new communications
and so forth, we feel it should be done in a way that allows the
appropriate level of consultation of the industry. There are certain
issues there that relate to changes that might be more speedy
in the Internet sector than other sectors and that is where we
would like as an industry to be able to properly give our opinions
and views before legislation changes.
367. My concern over the way you are proposing
to do this, which is through a statutory instrument, is that it
is quite an onerous procedure. If you are proposing that the Secretary
of State has a legal duty to consult and come up with a well-balanced
and so on and so forth change you are making the process more
onerous but the Secretary of State would be as daft as a brush
if he or she did not consult the industry before putting changes
(Mr Lansman) It is a fair point. It may be that OFCOM
is the body (as the Oftel of today) which appropriately consults.
OFCOM might well have that role and co-ordinate that response.
You are quite right, if they did not consult widely it would not
be very constructive.
368. You would also agree that leaving a lot
of discretionary loose ends in the Bill to the wisdom of the Secretary
of State of the day could be very dangerous indeed. If we are
going to create a regulator with the spread of OFCOM, the amount
of discretion that should be left, even in the cause of future-proofing
is minimal. I think Opposition parties would think that it would
be a good idea to leave as few discretionary powers to future
Secretaries of State as possible and therefore I think your advice
is well taken.
(Mr Lansman) We would not want to cast doubts on the
wisdom of any Secretaries of State, but this is a complex area
with complex issues and I think an open consultation would be
Chairman: Thank you very much indeed.