Memorandum by Professor Richard Collins
In our current rapidly converging and evolving
technological and market environment, is it appropriate to try
to recast the regulatory framework?
1. Yes, broadcasting is changing from a
"push" medium in which the content, sequence and time
of consumption were controlled by the broadcaster, to a "pull"
medium in which users are able to select their preferred content
and the time at which it is consumed from a host of potential
providers across the globe. Governments can no longer control
entry to broadcasting and so established systems of regulation
are becoming less and less effective. This may be regarded positively,
as enhancing freedom of choice and expression, diversity of sources
of information etc, or negatively, as increasing user vulnerability
to fraud and exposure to harm. These factors point towards a new
regulatory order that guards against harm and provides users with
effective redress without compromising their enhanced choices
and freedoms.
What are the advantages and disadvantages of regulating
this area? Are the regulatory costs proportionate to the benefits?
2. Regulation is required, first, because,
broadly defined broadcasting markets (including Internet—non-linear—delivered
content) may fail to provide sufficiently for universal access
at affordable prices to content and for the services required
for full social participation and for the public good. Regulation
has a role (though one that will increasingly be discharged through
subsidy and other forms of fostering desired behaviour rather
than inhibiting undesirable behaviour) in securing delivery of
such content and services.
3. Second, because, in spite of the changes
indicated above, incumbent broadcasters dispose of significant
market power. If pluralism, diversity, innovation and effective
competition are desired, regulators should evaluate the effects
of incumbents' behaviour (and sometimes curtail it) in order to
ensure these objectives are secured.
4. Further, and third, regulation can help
inhibit the provision of undesirable content and services. However,
such regulation is increasingly likely to be effective as ex
post regulation (eg through the application of general laws)
rather than the ex ante regulation traditionally associated
with broadcasting. This means increasing recourse to general provisions
of law (eg on competition, defamation, indecent display and so
on) rather than dedicated sector specific agencies, to self and
co-regulation (designed to secure voluntary pro-social behaviour
by content and service providers) and to public subsidy and support.
Does the Proposal sufficiently liberalise the
provision of broadcasting services within the European Union?
5. No, it promises, if effective, to damage
freedom of expression by applying old practices in new circumstances.
It will be more and more difficult to distinguish between traditional
broadcasting and new forms of delivery (or, if such a distinction
is possible, the application of different regulatory regimes to
broadcast—linear—and new forms of delivery—non-linear—will
incentivise provision of services by non-broadcast means) and
so the application of traditional broadcasting regulatory principles
and practices will tend to suppress choice, diversity and competition.
The freedom of expression pressure group, Article XIX has made
the well founded comments that:
"It has become trite to note that the Internet
is unlike any other form of mass communication and cannot be regulated
in the same manner as the broadcast sector or the print media...
the scope of the right to reply with regard to Internet publications
would be analogous to granting a right of reply in relation to
every published book, and even to pamphlets... the administrator
of the website of a human rights organisation would have to grant
space to the spokesperson of a military dictatorship or any undemocratic
government to respond to alleged factual inaccuracies that may
be impossible to verify. Or a government representative would
be able to post a mandatory reply on the site of a political opposition
party, to refute allegations of corruption. In the latter case,
a refusal to comply might lead to reprisals being taken against
the website, including it being ordered to shut down... The scope
for abuse of a right of reply, thus formulated, is significant.
Governments or other powerful figures in society would be able
to crack down on critical websites by launching abusive requests,
using up the limited resources of such organisations".
Does the Proposal contain measures that will effectively
protect public interest objectives?
6. Yes, but it emphasises insufficiently
the importance and potential of fostering self and co-regulatory
measures and proposes measures that are too stringent (eg in respect
of right of reply).
Does the Proposal achieve an appropriate balance
between the objective of harmonisation and right of Member States
to control audiovisual media services in a manner which reflects
national concerns and interests?
7. No, the shift from a "country of
origin" to a "country of reception" regulatory
locus will damage UK interests (by reducing the UK's attractiveness
as a location for "footloose" broadcasters and providers
of content and services via new media) and will inhibit free flows
of information throughout the EU.
Defining the nature of the regulated services—Is
there agreement on the Commission's proposal to distinguish between
linear and non-linear audiovisual media services?
8. No—the distinction is now hard
to draw and will become even harder. In consequence regulation
will either become non-technologically neutral, applying different
regulatory requirements to linear and non-linear services, which
will incentivise migration of service delivery to the more permissive
(non-linear) environment or it will inappropriately apply broadcasting
(linear) requirements to non-broadcast (non-linear) services.
A better course is to establish a technologically neutral scheme
of regulation, which may be more permissive than current broadcasting
regimes, and foster "media literacy" in users, encourage
self and co-regulation and apply effectively relevant principles
of general law (competition, defamation, fraud etc) to the services
in question.
Jurisdiction and country of origin—Does
the Proposal go far enough in facilitating the free movement of
broadcasting services?
9. No, as stated above, the shift from a
"country of origin" to a "country of reception"
regulatory locus will damage UK interests (by reducing the UK's
attractiveness as a location for "footloose" broadcasters
and providers of content and services via new media) and will
inhibit free flows of information throughout the EU.
Regulatory approach—What
role should industry self-regulation play in the new regulatory
framework?
10. It should actively be encouraged and
play an important role.
Advertising and commercial communications—Should
broadcasters be given greater flexibility in respect of the commercial
arrangements they enter into for the financing of programmes?
11. No. It is important that users (viewers
and listeners) should be able clearly to distinguish between advertising
(including sponsorship) and editorial content. However, one may
doubt whether the Commission's proposals on product placement
are likely to be effective without an excessively intrusive apparatus
of enquiry into programme making arrangements (did Citroen pay
for the producers of "Maigret" to show Maigret driving
in a Citroen? Did the producers of a Bond film receive payment
for showing Bond driving a Bentley?).
Protection of minors and human dignity—What
controls should be imposed on non-linear services in respect of
illegal and harmful material, such as the granting of a "right
to reply"?
12. In respect of illegal material the ordinary
provisions of the law should apply. In respect of putatively harmful
material there should be clear "labelling" of this material.
A "right of reply", for the reasons given above, is
likely to be excessively damaging to freedom of expression. However,
debate and difference are the stuff of democracy and it is desirable
that self and co-regulation should recognise the desirability
of the publication of replies.
Media plurality and cultural diversity—Do
quotas continue to be an appropriate mechanism for promoting the
production of "European works"?
13. No. Quotas are a very blunt instrument
even in "linear" services (quotas can be filled by cheap
and unedifying material) but in respect of "non-linear"
services they are either close to meaningless (because difficult
to monitor and enforce and because of the lack of linkage between
provision and consumption) or, if meaningful, likely to incentivise
location of firms outside EU jurisdiction.
29 September 2006
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