Convergence between Television and the Internet: Challenges for Content Regulation in a Connected Media Environment

Convergence between Television and the Internet: Challenges for Content Regulation in a Connected Media Environment Prof. Dr. Peggy Valcke Research Professor Faculty of Law KU Leuven Director Interdisciplinary Centre of Law & ICT (ICRI-IBBT) University of Hong Kong Joint Seminar JMSC & Law Tech Centre 2 April 2012 Convergence TV Internet TV on the Internet Internet on your TV 1

Post-Convergence? QUESTION Do rules for TV services / providers (still) apply? 2

Regulating TV in Europe: AVMS Directive Directive 2010/13/EU of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (codifies Directive 89/552/EC of 3 October 1989, amended by Directive 97/36/EC of 30 June 1997 and Directive 2007/65/EC of 11 December 2007) = The directive formerly known as Television without Frontiers (TVWF) Objectives Free movement of broadcasting / audiovisual media services within the internal market; Preservation of certain public interest objectives (cultural diversity, consumer protection, protection of minors); Promotion of the distribution and production of European audiovisual programmes Minimum harmonisation! **!! http://ec.europa.eu/avpolicy/reg/tvwf/index_en.htm!! ** AGENDA WHAT: Analysis of the application of the AVMS Directive on internet TV / video / audiovisual media services. HOW: AVMS Directive: Context & Basics AVMS Directive & Internet: Scope Borderline cases & National Implementation AVMS Directive & Internet: Jurisdiction National Specific Rules 3

1. AVMS Directive: Context TV content: AVMS Internet services: E- Commerce IPR ICT Transmission: E-Coms Privacy AVMS Directive: Context A. Audiovisual Media Services Directive Linear and non-linear media services directed to the general public Origin: media law (radio broadcast, television,...) - 1989 http://ec.europa.eu/avpolicy/reg/index_en.htm B. Electronic Communications Directives Electronic communications networks and services Origin: telecommunications law (telephony, data transport,...) - 1988/1990 http://ec.europa.eu/information_society/policy/ecomm/eurules/index_en.htm C. Information Society Services Directive (E-Commerce) Interactive electronic services Origin: internet (commercial websites,...) - 2000 http://ec.europa.eu/internal_market/e-commerce/directive_en.htm D. Data Protection Legislation (Directive 95/46/EC under revision) E. Intellectual Property Legislation (Directives on copyright (enforcement), software protection, database protection ) 4

Where do we come from: Legacy Frameworks - Silo-Based Telecommunications regulation ~ Private communication ~ 1-to-1 Broadcasting regulation ~ Public communication ~ 1-to-many Source: ACMA, The Australian Communications Legislative Landscape, August 2011 Technologies, Devices, Markets Law, regulations CONVERGE Broken Concepts? 5

EU Response: horizontal regulation AVMS Directive 2007 E-Commerce Directive 2000 Electronic Communications Directives 2002 Telecommunications Directives 1991-1998 E- Commerce Directive 2000 TVWF Directive 1989, 1997 R&TTE Directive 1999 Source: ACMA, The Australian Communications Legislative Landscape, August 2011 AVMS Directive: History 6

From TVWF to AVMS: Key Issues Technological / platform neutrality: common rules for all audiovisual media services, irrespective of transmission platform / technology used; expansion of scope to ondemand media (cf. next slide) [N.B. UK strongly opposed to extension of Directive to AVMS: over- regulation, risk of being ineffective because or re-location outside EU, hamper EU s competitiveness ] Graduated (or two-tiered) regulation: (cf. next slide) on-demand AVMS: basic rules linear AVMS: stricter rules Country of origin principle: more exceptions? [N.B. Group of 13 called for stronger tools in fight against delocalisation] Modernisation of advertising rules: e.g. product placement [N.B. Germany strongly opposed to introduction of product placement] From TVWF to AVMS: Key Issues (ctd.) Cf. Infra Rationale: 7

AVMS Directive: Basics Home country control e.g. advertising, sponsorship, product placement 2. AVMS Directive & Internet DOES AMVSD COVER THE INTERNET? AVMSD covers audiovisual services 1) that comply with the definition in Art. 1(a), irrespective of the platform used to deliver the service (terrestrial, CATV, satellite, IPTV, Internet, tablets, mobile phones ) 2) and that are transmitted by a media service provider under the jurisdiction of a Member State. 8

AVMS Directive & Internet Scope: What is an AVMS according to the definition in the directive? + What is relation with information society services in E-Commerce Directive? How is this implemented by MS and what are major challenges? Jurisdiction: Who is to be considered media service provider? Jurisdictional criteria? Specific national rules? AVMS Directive: Scope Art. 1(1)(a) Audiovisual media service : 7 cumulative criteria Service as defined by Art. 56-57 TFEU economic service; hence: no private websites, sharing of UGC content see Rec.21 Under editorial responsibility of a media service provider exercise of effective control over selection of programmes & organisation in chronological schedule (linear) or catalogue (on-demand); hence: no online platforms for UGC - see Art. 1(1)(c)-(d) and Rec.25-26 The principal purpose of which is No services where video content is only ancillary e.g. online versions of newspapers and magazines, travel sites and online games Rec.22 The provision of programmes Moving images with or without sound constituting individual item in a schedule or catalogue; hence: no services based on audio (radio), text (online newspapers), pictures - see Art. 1(1)(b) and Rec.23-24 9

AVMS Directive: Scope Art. 1(1)(a) Audiovisual media service : 7 cumulative criteria In order to inform, entertain or educate Impact on the way people form their opinions To the general public Mass media character; hence: no narrowcasting (forum, blog, mailing list, newsletter ) see Rec.21-22 (and 39) By electronic communications networks No cinema and DVD AVMS Directive: Scope Either television broadcast (art. 1(1)(e)): provision of programmes at a scheduled time and watched simultaneously by viewers or on-demand AVMS ( ODS or ODPS ; (art. 1(1)(g)): programmes users select from a catalogue offered by the media service provider, to watch at their own convenience (N.B. Also: Audiovisual commercial communication) 10

AVMS Directive: Scope Relation with ISS Certain on-demand AVMS also qualify as information society services in the sense of the E-Commerce Directive (Directive 2000/31/EC): any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services Relation AVMS ECD: Art. 4(8), Rec. 17 & 25 (lex specialis ). AVMS Directive: Scope - Examples COVERED 11

AVMS Directive: Scope Examples (ctd.) NOT COVERED AVMS Directive: Scope Examples (ctd.) BUT WHAT ABOUT... 12

National Implementation: On-Demand Notification or authorisation? ODS not subject to licensing, only registration/ notification system, in vast majority of MS Reason: do not use a scarce resource Exceptions: licence required in RO, IT (but in practice close to registration procedure), FR (in case on-demand AVMS wish to use terrestrial frequencies) No registration/notification in DE, DK, FI, FR (except for DTT), GR, PL Notification applies to all ODS (VOD, catch-up service ) across all means of delivery Exception: CY (not for ODS delivered via Internet) Notification/registration usually with media authority Exceptions: LU (Ministry of Communication); UK (ATVOD); IR (Ministry/ODAS) Fee? Only limited number of MS (CY, ES (CAC), HR, IT, LT, NL, SI); varying greatly Enforcement Sanctions in case of non-compliance (UK, NL, SE, CZ, HR ) Tracing via web crawlers/spiders (UK, CZ, UK) National Implementation: On-Demand Source: E. MACHET, Background document Plenary session Content Regulation and new Media: Exploring Regulatory Boundaries between Traditional and new Media, 33rd EPRA meeting, Ohrid, 26-27 May 2011; www.epra.org 13

National Implementation: On-Demand Guidance/Interpretation Guidance documents by RA, e.g.: NL: CvdM Policy guidelines for commercial on-demand media services 2011; http://www.cvdm.nl/content.jsp?objectid=cvdm:12335 Source: E. MACHET, Background document Plenary session Content Regulation and new Media: Exploring Regulatory Boundaries between Traditional and new Media, 33rd EPRA meeting, Ohrid, 26-27 May 2011; www.epra.org National Implementation: On-Demand Guidance/Interpretation Principal Purpose : what if video is part of broader consumer offering? 3 approaches: quantitative qualitative mix Example (1): NL: Relevant criteria: is video service organised in catalogue in which videos are searchable and can be consumed as stand alone without being purely supplementary to other content (e.g. articles); how is service promoted in marketing strategy; how is service perceived by audience. Not relevant: is service provided by a company historically involved in broadcasting or in written press. Example (2): UK (ATVOD Guidance): AVMS if: programmes grouped together in distinct area and presented as a catalogue of viewing options which could exist as a coherent consumer offering if removed from the broader service No AVMS if: programmes included as integral and ancillary element of broader offering, e.g. video used to provide additional material relevant to text-based news story, or video part of content service predominantly featuring a range of non-video material. 14

National Implementation: On-Demand Principal Purpose : what if video is part of broader consumer offering? (ctd.) Example (3): UK (Ofcom Decision on scope appeal by News Group): SunVideo: considered by ATVOD as ODPS under s.368a Communications Act 2003 News Group argued: Video section of the website,. is not an ODPS. It is part of an electronic version of The Sun newspaper; it is not a service in its own right; and the video material is not TV-like. Ofcom Dec. 2011: National Implementation: On-Demand Economic service Example (1): Italy Guidance/Interpretation Monetary threshold as presumption for economic activity able to compete with broadcasting activities: 100.000 EUR on annual basis (revenues from advertising, sponsorship, contracts and conventions with public and private subjects, public funding, pay-tv offers, but NOT: revenues from services other than TV-like service, e.g. hosting) Example (2): NL: Relevant criteria: does it contain ads, sponsoring; does it promote a brand, product or service; is it offered in return for payment may also include selfpromotion, even in case of non-profit organisations. Excluded: services by private persons or public enterprises unless offered for payment or of a clearly commercial nature. 15

National Implementation: On-Demand Guidance/Interpretation TV-like character Example (1): UK (ATVOD Guidance) Only ODS that provide programmes that compete for the same audience as TV broadcasts, and are comparable to the form and content of programmes included in broadcast TV services NOT: informational videos directed at a particular group of people, e.g. undertaking s employee training videos available online; competition compliance films on law firms or NCA s websites Example (2): UK (Ofcom Decisions on scope appeals by Playboy): Adult content on demand: Climax 3 and Demand Adult -> considered by ATVOD as ODPS under s.368a Communications Act 2003 Playboy argued: VOD services consisted of explicit works of sexual material prohibited on linear TV services; hence, no ODPS because content not normally included in TV programmes services Ofcom disagreed because: legislation requires content of ODPS to be comparable, not identical to TV programmes; content comparable to soft pornography which can be broadcast on UK linear channels with restrictions. Example (3): NL No raw video material which lacks a professional editing process (e.g. additional features like introduction, subtitling, voice over, etc.) National Implementation: On-Demand To the general public Example (1): NL Guidance/Interpretation Mass media character if receivable with standard consumer equipment; potentially available to everybody on the Internet even if in practice only used by very few people. BUT: media with very small audience and provided by non-commercial institutions (churches, town halls, hospitals) should be excluded (usually no economic activity). Example (2): DE (Interstate Treaty) Service which cannot be simultaneously used by more than 500 persons excluded. Example (3): IT Linear(!) services: excluded if provided on the Internet (WebTV, IPTV, mobile TV) with a schedule of less than 24 weekly hours and services not intended for the wide public, such as company TV services, and cable TV services in restricted areas, such as railway stations, airports, etc. 16

National Implementation: On-Demand Guidance/Interpretation Editorial responsibility = effective control over selection AND organisation of PROGRAMMES (cf. supra) (decisive criterion for determination of services on basis of UGC) Does this also include reactive editorial control (i.e. taking down from website programmes not in conformity with provider s terms of use)? (= broad interpretation: offers greater protection for public, but imposes regulatory costs on operators who consider themselves as hosts only) Or only if degree of positive selection? (narrow interpretation) National Implementation: On-Demand Guidance/Interpretation Editorial responsibility Example (1): IT No editorial responsibility: websites that do not provide ex ante selection of UGC, but only indexing activity of the content uploaded by users Example (2): BE (CSA) Effective control control exercised at any moment, but implies that there is no general renunciation to the exercise of the control. Selection of programmes = decision making process re: insertion of programmes (or not), profile of service, value judgments. Organisation of programmes = how is programme integrated in schedule or catalogue. Non-exhaustive list of services with no editorial responsibility: UGC platforms (e.g. YouTube or DailyMotion); on-demand video databases based on search engine (Google Videos); services consisting in simultaneous retransmission of images without any editorial intervention (cameras on ski slopes or road traffic). 17

National Implementation: On-Demand Guidance/Interpretation Editorial responsibility Example (3): UK (ATVOD Guidance) UK (ATVOD Guidance) Example (4): UK (BNPtv: ATVOD Scope Determination, 29.11.2010) coherent and distinct editorial proposition Does not entirely exclude reactive editorial control, but scope for prior editorial oversight is decisive. contribute National Implementation: On-Demand Major Borderline Cases Services on UGC platforms! Distinction between content created by users and professional content offered on UGC platforms. AV services offered by electronic/online versions of newspapers or magazines: blurring boundaries AVMS - newspapers Sports newspapers online vs sports channels websites Newspapers online vs all news portals vs all news channels websites Fashion/cooking magazines online vs fashion/cooking videos online Aggregator sites 18

3. AVMS Directive: Jurisdiction Who is media service provider? Art. 1(1)(d): Editorial responsibility = effective control over selection AND organisation of PROGRAMMES (cf. supra) NOT: Aggregator merely organizing other companies channels into a bouquet Split control? (e.g. broadcaster making its sports programmes available on third party website) - Who has final say, or ultimate power of veto, over programme selection? - Who controls advertising and branding? - Who provides metadata? Note: Contractual arrangements can be strongly persuasive, but not necessarily decisive AVMS Directive: Jurisdiction Art.2(3): Art.2(4) Source: C. DUMONT & E. MACHET, Background document Plenary session Content Regulation and New Media : Jurisdiction Challenges in a VOD Environment, Brussels, 34th EPRA meeting, Brussels, 5-7 October 2011, www.epra.org Art.2(5): criterion of establishment > case law CoJ Quid: place of servers? (cf. Art.2 ECD: not in themselves) 19

AVMS Directive: Jurisdiction http://www.coffeeshorts.co.uk./ - ATVOD Scope Determination, 12.07.2011 (withdrawn) AVMS Directive: Jurisdiction Derogation to freedom of reception: Art.3(4)-(6) Infringement of which laws? Severity of infringement Advance notice for: TV (linear) services human dignity protection of minors On-demand (non-linear) services public policy public health public security consumer protection manifest, serious, grave, and undermines the goals above and/or presents a serious at least 3 times during the last and grave risk to them 12 months Commission, national government and broadcaster Commission and national government Commission approval required? Yes Yes Restrictions must be Compatible with EU law Proportionate Emergency restrictions Preliminary restrictions possible Where possible, national government must be notified and pending Commission decision if consent obtained from Commission in the shortest amicable settlement not possible time, indicating why emergency restrictions are achieved needed 20

AVMS Directive: Jurisdiction Circumvention: Art. 4(2) for linear TV Television broadcast not compliant with stricter rules in receiving MS (Art. 4, al. 2): 2-step procedure 1. Non-binding request Television broadcast: directs all or most of activity to territory of receiving MS (rec. 42) -> ask authority of home country 2. Binding restrictions If (1) no satisfactory solution + circumvention -> unilateral action, e.g. banning retransmission via cable or sale of subscriptions/smart cards for pay TV (but: control & veto power of Commission) = codification of U-turn doctrine of CJEU (Van Binsbergen, Case 33/74; TV 10, Case C-23/93) Established in A, but directs all or most of activity to B With view to evading legislation of B On-demand AVMS? National Implementation: Jurisdiction France (Art. 43-10 law of 30.09.1986 on Freedom of communication): if a television service or a on-demand audiovisual media service whose programmes are wholly or mostly directed at the French public is established on the territory of another Member State of the European Community or part of the European Economic Area, in the main objective to escape from the application of French regulation, it is deemed to be subject to the rules applicable to services established in France, in conditions set by a decree of the Conseil d'etat. French speaking Community of Belgium (Art. 159 6 of the coordinated Decree on audiovisual media services): possibility to intervene against an on-demand media service whose provider is established in another Member State with the aim to circumvent the rules applicable to the services falling under its jurisdiction 21

Concluding remarks: When regulation meets reality The identification criteria that were easy to apply in the traditional media world are now facing a moment of crisis (R. Viola & M. Cappello, AGCOM, IRIS Special, p.51) Is the level playing field more at risk than before? one needs creative minds! Food for thought Media Regulation 2020 Which contents / providers? Technology-neutrality or user perception? ( regulation in context ) Mediatypes (TV, internet, newspapers, magazines, radio ) or functions? (information, entertainment, education ) Editorial responsibility: from selection to search & navigation? from ex ante to ex post? 22

References & Reading Website of the European Commission on the AVMS Directive : http://ec.europa.eu/avpolicy/reg/tvwf/index_en.htm National Transpositions of AVMS Directive - Project of Prof. Mark Cole, Université de Luxembourg: http://wwwen.uni.lu/research/fdef/media_law/audiovisual_media_services_directive/project_description Website of the European Platform of Regulatory Authorities: http://www.epra.org/content/english/index2.html IRIS special, The Regulation of On-demand Audiovisual Services: Chaos or Coherence?, Council of Europe/European Audiovisual Observatory, 2011, 100 p. Emmanuelle Machet, Content Regulation and new Media: Exploring Regulatory Boundaries between Traditional and new Media, Background document Plenary session 33rd EPRA meeting, Ohrid, 26-27 May 2011, http://www.epra.org/content/english/press/papers/ohrid/paper_session1_final_revised.pdf. R. Craufurd Smith, Determining Regulatory Competence for Audiovisual Media Services in the European Union, Journal of Media Law (2011) 3(2) 263-285 Ofcom, Protecting audiences in the era of convergence and Connected TV: Ofcom Research, Deliberative Research Report (+ Appendices), 25 Jan. 2012, http://stakeholders.ofcom.org.uk/market-data-research/tvresearch/protecting-audiences/?utm_source=updates&utm_medium=email&utm_campaign=protectingaudiences Commissariaat voor de Media, Policy guidelines for commercial on-demand media services 2011 - Beleidsregels classificatie commerciële mediadiensten op aanvraag 2011, http://www.cvdm.nl/content.jsp?objectid=cvdm:12335 (English version in preparation) AGCOM, Web-radio and Web-TV: F.A.Q., http://www.agcom.it/default.aspx?message=contenuto&dcid=495 Keep an eye out for: Commission report on the implementation of the directive: February 2012 Commission interpretative communication on the directive: 2012 Commission paper on connected TV: 2012 23

Thank you for your attention Peggy Valcke [peggy.valcke@law.kuleuven.be] http://www.icri.be http://www.ibbt.be => LL.M. IP-IT Law in Brussels from 2012-2013 onwards http://www.law.kuleuven.be/icri/psiml/ 24