The 2005 proposal
158. In the Government's submission they stated
that so far as TV broadcasting was concerned, the Government takes
the view that the existing regulatory arrangements, involving
Ofcom, were working well—and allowed regulation to take
place with as light a touch as possible. They would also support
as light a touch as possible for non-linear services—in
as far as these were included in the finalised proposal at all.
The Government stated that there was a lack of clarity in the
Commission's original proposal about the regulatory regimes that
will be acceptable in Member States.
159. The Minister told us that he was "totally
in favour of regulation so long as it is self-regulation and it
should only be state regulation when self-regulation cannot work,
by and large because I think the experts are better at regulating
themselves than those of us who are not experts and we are more
likely to keep up to speed with their industry." (Q 157)
160. As mentioned above (paragraph 136), the
Internet Watch Foundation has been a very successful example of
how industry is willing and able to regulate itself in the United
Kingdom.
161. A further example is provided by the Advertising
Standards Agency (ASA), which has regulated non-broadcast advertising
in the UK since the 1960s and was given responsibility for broadcast
advertising by Ofcom in 2004 in recognition of its success. Under
the current framework, the ASA provides a "one stop shop"
to advertising content with a self-regulatory approach for non-broadcast
and a co-regulatory approach (with Ofcom) for broadcast advertising.
162. The ASA argued in their submission to us
that "the proposed text of the AMS Directive could severely
inhibit the continued operation and development of effective advertising
self- and co-regulation in the UK and across the EU-25."
(pp 140-142)
163. According to the BBC, self-regulatory schemes
should be the preferred option in addressing public policy concerns
in the context of on demand services. In their view, the context
in which users access services on-demand should enable a lower
requirement for regulatory protection than in the case of linear
broadcasting. They argued that binding regulation of on-demand
services would be at best premature, almost certainly ineffective
and possibly undesirable.
164. Mr Murray from BEUC challenged the
notion that self regulation was always the best option telling
us that "There is a conflict there which has never really
been satisfactorily resolved. It is usually resolved by slightly
ignoring it or being slightly inconsistent. We can see self-regulation
as being possible within a very clear legal and institutional
context but not in the kind of context in which it has appeared
in recent directives in that Member States are to encourage self-regulation.
This is a nonsense." (Q 381)
The Council's text
165. The Council's text introduces the principles
of self-regulation and co-regulation, which were absent from the
2005 proposal, in Member States where such regulation is compatible
with national laws.
166. Mr Paulger from the Commission told
us that they were "very much in favour of co- and self-regulation
as a regulatory technique … This was our position at the
outset". He explained that there was no mention of self-regulation
in the body of the initial draft Directive only because of legal
concerns that it might not be compatible with the section on current
self-regulation in the existing inter-institutional agreement
on better law-making. (Q 350)
167. He cautioned us however that "self-regulation
is more developed in some Member States than in others as a regulatory
technique," and thus cannot be simply prescribed to all.
(Q 350)
168. We strongly welcome the inclusion of
co- and self-regulation in the body of the revised text, and hope
that it will allow such regimes to continue to flourish in the
United Kingdom and other Member States where they already operate.
169. We are persuaded that self-regulation
is the best means of operation in principle, especially for rapidly
developing technological markets such as broadcasting.
