Examination of Witnesses (Questions 220-239)
Mr Hamish MacLeod and Mr Dario Betti
30 OCTOBER 2006
Q220 Lord Swinfen: I am going to
come on to my supplementary in a moment, but concerning illegal
or harmful content, do effective mechanisms exist to control the
types of illegal content identified in the proposal, e.g. race
hatred, and is the proposal likely to substantially enhance restrictions
on freedom of expression?
Mr MacLeod: The Directive is not specific about
how each NRA should go about restricting the availability of illegal
content, but I am pretty happy that the systems we have in the
UK for restricting access to illegal content are very thorough
and are getting more so. Your specialist adviser, of course, is
a director of the Internet Watch Foundation, as am I, and all
the significant internet service providers and mobile operators
are subscribers to the Internet Watch Foundation, and it has been
very successful in tackling the whole area of illegal content.
The Directive will not impact on the arrangements, as far as I
can see.
Q221 Lord Swinfen: In answer to Baroness
Eccles we were told that you thought it was in order to regulate
the distribution of programmes made in, say, Germany within the
EU but in an even earlier answer to me you said you did not think
it would be right to regulate programmes that you distributed
that emanated from outside the EU. I do not understand the difference
between the two of them, particularly when you are talking about
content that may be either illegal or harmful.
Mr MacLeod: Illegal content we are addressing
in this country in a very specific way, which is not really available
for general application. With illegal content, the Internet Watch
Foundation compiles a database of all the known sites around the
world where illegal content is known to be available and the internet
service providers have access to that database, and if their customers
try to access those sites, access is blocked. That is a very specific
response to a very specific problem. It is not something that
can be used for a general application.
Q222 Lord Swinfen: It does not cover
anything that might be in a film that is being distributed by
one of your members on the internet?
Mr MacLeod: If the content was available from
Malaysia or somewhere like that, we would not be said to be the
provider within the terms of this Directive.
Q223 Lord Swinfen: But you are distributing
it.
Mr MacLeod: No, no. We are not distributing
it. We are just providing the connectivity to the site.
Q224 Lord Swinfen: Am I not right
in thinking that if you were to take it directly from Malaysia
with the object of distributing it immediately, you have actually
got technical devices that can store it for a few minutes while
you view it and decide whether or not to take things out before
you actually distribute? Does that then not make you responsible?
Mr Betti: Could I try to see if I understand
correctly? What we are doing you can define at two levels. One
is the service provision, where we act effectively as an aggregator
of channels, and we provide to our customers a service which they
can have a look at, what is effectively a programme guide, picking
up the channels and so on. This is very much a closed access system,
where we have a direct control over the partners we like to work
with and who we select as a content provider. Then there is another
side. If we open the internet, obviously, it is up to the users
to go and select where they want, and effectively what you just
mentioned, being a real-time service, we might not store the content.
The content might be fetched from Malaysia and distributed directly
on behalf of...
Q225 Lord Swinfen: Can I stop you
there? There are certain programmes that are delayed by a number
of seconds so that they can bleep out swear words. If you can
do that to programmes on the television, surely you can do that
with the programmes that you distribute?
Mr Betti: That is the equivalent of the first
kind of service provision, so we can do that with a package of
channels that we control, 16 channels, which you know where they
are from and you can monitor. This is already being done by the
broadcasters themselves that provide the content to us. We are
probably talking worldwide of millions of possible distributors,
and we might not even know when they start and when they disappear
within the internet, and in that case we would act as a pipe;
we do not listen into all of the millions of hypothetical TV channels
that are coming from all over the world.
Q226 Lord Geddes: I have two quick
questions before we move on. You have been very helpful for the
record in defining the 20 per cent rule. Again, for the record,
could you define the 35-minute rule, just so we have it on paper?
Mr MacLeod: I have to say that is not one that
really directly impacts on us very much, so I cannot pretend to
be an expert on the 35-minute rule, but I believe they are thinking
of moving to a 30-minute, which would be less disruptive to producers.
Q227 Lord Geddes: I will try other
witnesses on that. We have talked a lot about the quantitative
side. We have begun to get on to the qualitative side. Are there
qualitative restrictions on marketing or advertising that you
would consider to be necessary?
Mr MacLeod: We have not objected to any of the
proposals in the Directive on the qualitative side as far as advertising
is concerned.
Q228 Lord Roper: That suggests that
that is an area where you believe there is a need for regulation.
Mr MacLeod: Basically, we have not taken up
a position on that one. We are happy to go with what is being
suggested on alcohol and tobacco and prescription drugs and things
like that.
Q229 Lord Roper: So to that extent
you would accept regulation?
Mr MacLeod: Yes.
Q230 Lord Roper: But who do you feel
would be the appropriate person to do this regulation? The Commission
or Ofcom or self-regulation?
Mr MacLeod: In this country we have the Advertising
Standards Authority who administer both the broadcasters' cap
code and the printed media cap code, and that seems to be extremely
successful.
Q231 Lord Roper: Whether that would
be accepted by the European Union, because it is not formally
a governmental body, would have to be examined.
Mr MacLeod: Yes, and I think it is a very good
example of why we should not be allowing extremely successful
self-regulatory models that have been developed in this country
over a number of years to be derailed by the Directive.
Q232 Lord Roper: What about co-regulation?
Do you see that that plays a useful part? You have yourselves
drawn up a code of conduct but that is self-regulation.
Mr MacLeod: It is indeed self-regulatory. We
published in 2004. All of the members of the MBG are prominent
brands and we recognised that, to protect our customers and our
reputations, we had to distribute content in a responsible way.
So in many ways, by the time this Directive comes into force,
whenever it is, they will be telling us to do something that we
have already voluntarily done six or seven years after the event.
We are not arguing against the fact that things have to be regulated;
we are just arguing against the principle of the whole approach.
Q233 Lord St John of Bletso: I notice
in paragraph 22 of your evidence that you said that in the mobile
sector, all the mobile operators offer filtering of internet content
for customers under the age of 18.
Mr MacLeod: Yes.
Q234 Lord St John of Bletso: How
likely is this to be made compulsory?
Mr MacLeod: Compulsory in what sense?
Q235 Lord St John of Bletso: In the
sense of anyone who is given a mobile device under the age of
18 would automatically have this filtering put on.
Mr MacLeod: Made compulsory by the state?
Q236 Lord St John of Bletso: By the
state, yes.
Mr MacLeod: I hope that it will not need to
get to that, because I think, even within the terms of the Directive
as we see it, there should be enough flexibility for national
regulatory authorities to say "Please implement some self-regulatory
scheme to protect your customers, and if you do not, we will come
after you, but if you do and it works, then we will not."
As far as we can tell—and we have had our code in place,
as I say, for two years—filtering is available and is extremely
successful, and there is no call for it to be made compulsory.
Q237 Lord St John of Bletso: What
is the danger that the Directive will encourage content providers
to relocate outside the European Union?
Mr MacLeod: Again, I think that is very difficult
to assess, because it slightly depends on the implementation,
and if it is sensibly implemented, then perhaps it is a reasonably
low risk, but I think you have to ask yourself is it a risk that
we need to take?
Q238 Lord Walpole: I am just going
to ask a silly question. What I do not understand is, if you are
purely a broadband provider, how the hell do you have any control
over what your customers pick up?
Mr MacLeod: We were talking about the filter
there.
Q239 Lord Walpole: Indeed, yes. So
presumably things that are absolutely obscene or whatever are
filtered out but apart from that, you do not have any control,
do you?
Mr MacLeod: You say "absolutely obscene";
the bar is not that high. It is 18-type content, and if you are
a minor and the filter is applied, you are not going to get hold
of it.
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