Convergence between Television and the Internet: Challenges for Content Regulation
2012-05-14 In most parts of the world, the publishing and broadcasting sectors are characterized by a different historical evolution. In Europe, the publishing sector was organized as realm of the market in the 19th century, whereas broadcasting was almost immediately captured as a government monopoly in the 1920s and 1930s. As a result, there is a large consensus on the fact that regulation in the publishing mainly relies on market forces complemented with self-regulation. The idea is that all regulation and State intervention are undesirable and seen as a threat to and violation of press freedoms, and that citizens can freely decide for themselves which content (e.g. newspapers, books) they consume. This ‘hands off’ approach for print media stands in sharp contrast to the regulatory burden on broadcasting.
Regulation in the broadcasting sector was triggered by technological concerns (e.g. the scarcity of spectrum) and by the delicate relationship between mass media, mass deception and emancipatory aims. Setting out from the idea that quality and pluralism can be achieved only through government intervention and that citizens need protection from the powerful mass media, content related (e.g. quota, protection of minors) and structural (e.g. ownership rules) measures are widespread in the broadcasting sector.
Development of Hybrid Services
Since the advent of digital technologies, and especially the Internet, print and audiovisual media have been growing closer, leading to the development of hybrid services which belong to both worlds. Almost all online newspapers offer audiovisual material alongside their text articles, while broadcasters increasingly invest in textual information that enriches their video streams on their websites.
Although many audiovisual services have ‘television-like’ characteristics, they are not necessarily subject to the same rules that apply to traditional television services. Video services offered by newspapers, for example, are generally considered to fall outside the scope of current broadcasting laws in Europe.
From several perspectives, the current diverging regulatory approaches towards print and broadcasting is confusing. First, viewers might expect the same level of protection irrespective which type of media content is concerned. However, such expectations may be unwarranted and may lead to feelings of frustration when confronted with inappropriate content. Secondly, broadcasters allege they are discriminated by having to comply with heavier regulation than their competitors. In other words, they feel discriminated by heavier regulatory burdens than competitors they meet in the online realm.
Often, the convergence between print and audiovisual media has been used to argue for converging content regulation and, basically, a relaxation of broadcasting and audiovisual media regulation to the level of print media regulation. At the same time, triggered by the UK phone hacking scandal in which employees of newspapers are accused of engaging in phone hacking and police bribery, arguments came to the fore that the self-regulatory regime of the newspaper publishing sector is failing and that a stricter approach – comparable to the broadcasting regime – should be considered.
Audiovisual Media Services Directive: an answer to the growing convergence….
The growing convergence between television and the Internet is challenging regulatory frameworks for broadcasting in different parts of the world. In August of last year, the Australian communications regulator (ACMA) published a report under the title “Broken Concepts”, in which it came to the conclusion that the majority of legislative concepts that form the building blocks of current communications and media regulatory arrangements are either ‘broken’ or under significant strain from the effects of convergence. In this report, ACMA blames the Australian legislator for having created a communications landscape that resembles “a patchwork quilt”: it is fragmented and characterized by “band aid” solutions that lack an overarching strategy or co-ordinated approach to regulating communications and media in a digital economy. In Europe, legislatorsmade considerable efforts to avoid such a patchwork situation, acknowledging, at a relatively early stage, the need to shift away from the old form of regulation.
When the European Union legislator adopted the Audiovisual Media Services Directive in December 2007 , it did so with the intention to provide an answer to the merging of previously distinct platforms by which TV content is distributed. New definitions were introduced and rules were revised, with the objective to create a level playing field between traditional and new media services, to enhance legal certainty for new, on-demand services offered via digital TV platforms and the Internet, and, in general, to make the legal framework for the audiovisual sector more future-proof and fit for the internet era . But it is only fair to say that the European legislator hardly foresaw the rocketing popularity of online video portals like YouTube or DailyMotion. Nor did it consider appropriate regulatory responses to the current trend of integration of the Internet and Web 2.0 features into modern television sets and set-top boxes, which could be referred to as “Smart TV” or "Connected TV".
…or not?
One of the major discussions that were held in the context of the AVMS Directive touched upon the question how far the scope of the Directive had to extend: any kind of video service that is delivered via a broadcast network, the internet, or mobile devices; or only TV-like services? Countries like the United Kingdom very strongly opposed the extension of the Directive’s scope to all kinds of new and emerging media services, as they feared this would stifle innovation and result in delocalization of innovative firms to places outside Europe. The discussions resulted in a compromise: on the one hand, the scope of the Directive was extended to new video services, including on-demand, and irrespective of the platform, as long as they are TV-like; on the other hand, the Directive adopted a “graduated approach” which entails lighter rules for on-demand services (compared to linear services).
The definition of “audiovisual media service” refers to “a service as defined by Articles 56 and 57 [ex 49 and 50] of the Treaty of the Functioning of the European Union which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes in order to inform, entertain or educate, to the general public by electronic communications networks”. This definition is intended to be technology-neutral and applicable to emerging services. However, in light of recent developments in the media landscape, these criteria have been put to the test.
Media regulators across Europe are especially struggling, in terms of material scope, to fit the online video services of newspapers and magazines in the existing framework. The ‘principle purpose’ criterion in the definition is intended to exclude services in which audiovisual material is merely incidental. Newspaper websites have been the classic example in which videos are only ancillary to the main purpose (providing written articles). However, recently, the accessorial nature of these services has been put to the test.
In the much-debated Sun Video case in the United Kingdom, ATVOD (the Authority for Television On Demand) decided that Sun Video, i.e. the video section on the Sun website, should be labeled as an AVMS because 1) the website contains more than one service and the video library is a service in its own right; 2) Sun Video is comparable to form and content of programmes normally shown on TV; 3) the principal purpose of Sun Video is to provide TV-like programmes. As a result, Sun Video would be subject to the same regulation governing other on-demand services online.
However, Ofcom overruled this decision, because ATVOD failed to consider the Sun’s website as a whole when considering whether it was a video on-demand provider. Ofcom emphasised that this video library could evolve over time so that the principal service of this service could change. Other media regulators (e.g. in the Netherlands and in the French Community of Belgium) indicated in their guidelines on the interpretation of the notion of AVMS that separate video channels on a newspaper’s website could be labelled as an AVMS if the videos are included in a stand-alone catalogue. Comparable to Ofcom, the Dutch Media Regulator indicated that it could change its policy when circumstances would change. The fact that what is not an AVMS today, could well be one tomorrow is not conducive to legal certainty…
The rise of connected TV and OTT (Over-the-Top TV) is another challenge media regulators will have to tackle in the nearby future. When social network sites and other online services are brought to the TV screen, users will have simultaneous access to ‘protected’ and ‘unprotected’ services via the same screen. The European Commission is preparing a policy paper on connected TV which will be published later this year and which will set out ideas on legal challenges and technical standards. It is also the role of regulators and academics to examine where we should draw the line between ‘regulatable’ and ‘unregulatable’ content in this new media environment, and to develop legal criteria to define the boundaries of audiovisual regulation in the future.
And last but not least, it is the responsibility of the media content providers themselves, to offer high quality and trustworthy services that meet prevailing standards on protection of minors and consumers, decency, hate speech, privacy protection, editorial autonomy and commercial communications.
■Prof. Dr. Peggy Valcke, Dr. Katrien Lefever, Jef Ausloos
Noam, E. (1992). Television in Europe. New York, Oxford University Press; Hoffmann-Riem, W. (1995). Germany: the regulation of broadcasting, pp.64-86. In: Raboy, M. (Ed.). Broadcasting in six countries. New York, Guilford Press.
Valcke, P. & Stevens, D. (2007). “Graduated Regulation of ‘Regulatable’ Content and the European Audiovisual Media Services Directive: One small step for the industry and one giant leap for the legislator?”, Telematics & Informatics, Vol. 24, No. 4, 285-302.
Curran, J. & Seaton J. (2003). Power without responsibility: the press, broadcasting and new media in Britain. London, Routledge.
Ipsos MORI (2012). Protecting audiences in a converged world Deliberative research report, http://stakeholders.ofcom.org.uk/binaries/research/tv-research/946687/Protecting-audiences.pdf.
EPRA (2010). Connected TVs Working Group Summary - Connected TV: what Impact on Broadcasting Regulation?, http://www.epra.org
ACMA (2011). Broken concepts. The Australian communications legislative landscape. http://engage.acma.gov.au/wp-content/uploads/2011/08/ACMA_Broken-Concepts_Final_29Aug1.pdf
European Parliament and Council Directive 2007/65/EC of the of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities. OJ (2007) L 332/27. In 2010, the European legislator decided, in the interests of clarity and rationality of the Directive, to codify the different amending Directives: European Parliament and Council 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 (Audiovisual Media Services Directive). OJ (2010) L 95/1.
For a detailed overview of the AVMS Directive, see Valcke, P. & Lievens, E. (2009). "Rethinking European Broadcasting Regulation", in Pauwels, C. et al. (Eds.). Rethinking European Media and Communications Policy, Brussels: VUB Press, 127-164; Valcke, P. & Lefever, K. (2012). Media Law in the European Union, International Encyclopaedia of Media Law. Alphen a/d Rijn: Kluwer Law International.
Valcke, P., Stevens, D., Werkers, E. & Lievens, E. (2008). “Audiovisual Media Services in the EU: Next Generation Approach or Old Wine in New Barrels?”, Communications & Strategies, No. 71, 103-118.
Article 1(1)(a)(i) AVMS Directive.
ATVOD (2011). Determination – Sun Video, 11 February 2011, http://www.atvod.co.uk/regulated-services/scope-determinations/sun-video.
Ofcom (2011a). Ofcom decision – Sun Video, http://www.atvod.co.uk/uploads/files/Ofcom_Decision_-_SUN_VIDEO_211211.pdf.
CvdM, Commercial media services on demand, September 2010, http://www.cvdm.nl/dsresource?objectid=11316&type=org; Betzel, M. (2011). Finetuning Classification Criteria for On-demand Audiovisual Media Services: the Dutch Approach. In Nicoltchev, S. (Ed.). Iris Special: The Regulation of On-demand Audiovisual Services: Chaos or Coherence?. Observatoire européen de l’audiovisuel: Strasbourg, 53-62; CSA (2012). Recommandation relative au périmètre de la régulation des services de medias audiovisuels, http://csa.be/system/documents_files/1713/original/CAC_20120329_recommandation_competence_materielle.pdf?1333030000.
CvdM (2011). Regeling houdende beleidsregels omtrent de classificatie van commerciële mediadiensten op aanvraag, http://www.cvdm.nl/dsresource?objectid=12335&type=org.
Kroes, N. (Vice-President of the European Commission responsible for the Digital Agenda), “Creativity for the Creative Sector: Entertaining Europe in the Electronic Age”, European Parliament Intellectual Property Forum, Brussels, 24 January 2012, SPEECH/12/30;
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/12/30.
Peggy Valcke is research professor at the University of Leuven and lectures media law at the University of Brussels. She is also visiting professor at the University of Tilburg and in the Florence School of Regulation at the European University Institute. She is the current director of the Interdisciplinary Centre for Law & ICT at the University of Leuven (ICRI-IBBT). Dr. Katrien Lefever is senior researcher at ICRI-IBBT, specialised in media law, sports law and advertising law. Jef Ausloos joined ICRI-IBBT in February 2012 as doctoral researcher.
Regulation in the broadcasting sector was triggered by technological concerns (e.g. the scarcity of spectrum) and by the delicate relationship between mass media, mass deception and emancipatory aims. Setting out from the idea that quality and pluralism can be achieved only through government intervention and that citizens need protection from the powerful mass media, content related (e.g. quota, protection of minors) and structural (e.g. ownership rules) measures are widespread in the broadcasting sector.
Development of Hybrid Services
Since the advent of digital technologies, and especially the Internet, print and audiovisual media have been growing closer, leading to the development of hybrid services which belong to both worlds. Almost all online newspapers offer audiovisual material alongside their text articles, while broadcasters increasingly invest in textual information that enriches their video streams on their websites.
Although many audiovisual services have ‘television-like’ characteristics, they are not necessarily subject to the same rules that apply to traditional television services. Video services offered by newspapers, for example, are generally considered to fall outside the scope of current broadcasting laws in Europe.
From several perspectives, the current diverging regulatory approaches towards print and broadcasting is confusing. First, viewers might expect the same level of protection irrespective which type of media content is concerned. However, such expectations may be unwarranted and may lead to feelings of frustration when confronted with inappropriate content. Secondly, broadcasters allege they are discriminated by having to comply with heavier regulation than their competitors. In other words, they feel discriminated by heavier regulatory burdens than competitors they meet in the online realm.
Often, the convergence between print and audiovisual media has been used to argue for converging content regulation and, basically, a relaxation of broadcasting and audiovisual media regulation to the level of print media regulation. At the same time, triggered by the UK phone hacking scandal in which employees of newspapers are accused of engaging in phone hacking and police bribery, arguments came to the fore that the self-regulatory regime of the newspaper publishing sector is failing and that a stricter approach – comparable to the broadcasting regime – should be considered.
Audiovisual Media Services Directive: an answer to the growing convergence….
The growing convergence between television and the Internet is challenging regulatory frameworks for broadcasting in different parts of the world. In August of last year, the Australian communications regulator (ACMA) published a report under the title “Broken Concepts”, in which it came to the conclusion that the majority of legislative concepts that form the building blocks of current communications and media regulatory arrangements are either ‘broken’ or under significant strain from the effects of convergence. In this report, ACMA blames the Australian legislator for having created a communications landscape that resembles “a patchwork quilt”: it is fragmented and characterized by “band aid” solutions that lack an overarching strategy or co-ordinated approach to regulating communications and media in a digital economy. In Europe, legislatorsmade considerable efforts to avoid such a patchwork situation, acknowledging, at a relatively early stage, the need to shift away from the old form of regulation.
When the European Union legislator adopted the Audiovisual Media Services Directive in December 2007 , it did so with the intention to provide an answer to the merging of previously distinct platforms by which TV content is distributed. New definitions were introduced and rules were revised, with the objective to create a level playing field between traditional and new media services, to enhance legal certainty for new, on-demand services offered via digital TV platforms and the Internet, and, in general, to make the legal framework for the audiovisual sector more future-proof and fit for the internet era . But it is only fair to say that the European legislator hardly foresaw the rocketing popularity of online video portals like YouTube or DailyMotion. Nor did it consider appropriate regulatory responses to the current trend of integration of the Internet and Web 2.0 features into modern television sets and set-top boxes, which could be referred to as “Smart TV” or "Connected TV".
…or not?
One of the major discussions that were held in the context of the AVMS Directive touched upon the question how far the scope of the Directive had to extend: any kind of video service that is delivered via a broadcast network, the internet, or mobile devices; or only TV-like services? Countries like the United Kingdom very strongly opposed the extension of the Directive’s scope to all kinds of new and emerging media services, as they feared this would stifle innovation and result in delocalization of innovative firms to places outside Europe. The discussions resulted in a compromise: on the one hand, the scope of the Directive was extended to new video services, including on-demand, and irrespective of the platform, as long as they are TV-like; on the other hand, the Directive adopted a “graduated approach” which entails lighter rules for on-demand services (compared to linear services).
The definition of “audiovisual media service” refers to “a service as defined by Articles 56 and 57 [ex 49 and 50] of the Treaty of the Functioning of the European Union which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes in order to inform, entertain or educate, to the general public by electronic communications networks”. This definition is intended to be technology-neutral and applicable to emerging services. However, in light of recent developments in the media landscape, these criteria have been put to the test.
Media regulators across Europe are especially struggling, in terms of material scope, to fit the online video services of newspapers and magazines in the existing framework. The ‘principle purpose’ criterion in the definition is intended to exclude services in which audiovisual material is merely incidental. Newspaper websites have been the classic example in which videos are only ancillary to the main purpose (providing written articles). However, recently, the accessorial nature of these services has been put to the test.
In the much-debated Sun Video case in the United Kingdom, ATVOD (the Authority for Television On Demand) decided that Sun Video, i.e. the video section on the Sun website, should be labeled as an AVMS because 1) the website contains more than one service and the video library is a service in its own right; 2) Sun Video is comparable to form and content of programmes normally shown on TV; 3) the principal purpose of Sun Video is to provide TV-like programmes. As a result, Sun Video would be subject to the same regulation governing other on-demand services online.
However, Ofcom overruled this decision, because ATVOD failed to consider the Sun’s website as a whole when considering whether it was a video on-demand provider. Ofcom emphasised that this video library could evolve over time so that the principal service of this service could change. Other media regulators (e.g. in the Netherlands and in the French Community of Belgium) indicated in their guidelines on the interpretation of the notion of AVMS that separate video channels on a newspaper’s website could be labelled as an AVMS if the videos are included in a stand-alone catalogue. Comparable to Ofcom, the Dutch Media Regulator indicated that it could change its policy when circumstances would change. The fact that what is not an AVMS today, could well be one tomorrow is not conducive to legal certainty…
The rise of connected TV and OTT (Over-the-Top TV) is another challenge media regulators will have to tackle in the nearby future. When social network sites and other online services are brought to the TV screen, users will have simultaneous access to ‘protected’ and ‘unprotected’ services via the same screen. The European Commission is preparing a policy paper on connected TV which will be published later this year and which will set out ideas on legal challenges and technical standards. It is also the role of regulators and academics to examine where we should draw the line between ‘regulatable’ and ‘unregulatable’ content in this new media environment, and to develop legal criteria to define the boundaries of audiovisual regulation in the future.
And last but not least, it is the responsibility of the media content providers themselves, to offer high quality and trustworthy services that meet prevailing standards on protection of minors and consumers, decency, hate speech, privacy protection, editorial autonomy and commercial communications.
■Prof. Dr. Peggy Valcke, Dr. Katrien Lefever, Jef Ausloos
Noam, E. (1992). Television in Europe. New York, Oxford University Press; Hoffmann-Riem, W. (1995). Germany: the regulation of broadcasting, pp.64-86. In: Raboy, M. (Ed.). Broadcasting in six countries. New York, Guilford Press.
Valcke, P. & Stevens, D. (2007). “Graduated Regulation of ‘Regulatable’ Content and the European Audiovisual Media Services Directive: One small step for the industry and one giant leap for the legislator?”, Telematics & Informatics, Vol. 24, No. 4, 285-302.
Curran, J. & Seaton J. (2003). Power without responsibility: the press, broadcasting and new media in Britain. London, Routledge.
Ipsos MORI (2012). Protecting audiences in a converged world Deliberative research report, http://stakeholders.ofcom.org.uk/binaries/research/tv-research/946687/Protecting-audiences.pdf.
EPRA (2010). Connected TVs Working Group Summary - Connected TV: what Impact on Broadcasting Regulation?, http://www.epra.org
ACMA (2011). Broken concepts. The Australian communications legislative landscape. http://engage.acma.gov.au/wp-content/uploads/2011/08/ACMA_Broken-Concepts_Final_29Aug1.pdf
European Parliament and Council Directive 2007/65/EC of the of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities. OJ (2007) L 332/27. In 2010, the European legislator decided, in the interests of clarity and rationality of the Directive, to codify the different amending Directives: European Parliament and Council 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 (Audiovisual Media Services Directive). OJ (2010) L 95/1.
For a detailed overview of the AVMS Directive, see Valcke, P. & Lievens, E. (2009). "Rethinking European Broadcasting Regulation", in Pauwels, C. et al. (Eds.). Rethinking European Media and Communications Policy, Brussels: VUB Press, 127-164; Valcke, P. & Lefever, K. (2012). Media Law in the European Union, International Encyclopaedia of Media Law. Alphen a/d Rijn: Kluwer Law International.
Valcke, P., Stevens, D., Werkers, E. & Lievens, E. (2008). “Audiovisual Media Services in the EU: Next Generation Approach or Old Wine in New Barrels?”, Communications & Strategies, No. 71, 103-118.
Article 1(1)(a)(i) AVMS Directive.
ATVOD (2011). Determination – Sun Video, 11 February 2011, http://www.atvod.co.uk/regulated-services/scope-determinations/sun-video.
Ofcom (2011a). Ofcom decision – Sun Video, http://www.atvod.co.uk/uploads/files/Ofcom_Decision_-_SUN_VIDEO_211211.pdf.
CvdM, Commercial media services on demand, September 2010, http://www.cvdm.nl/dsresource?objectid=11316&type=org; Betzel, M. (2011). Finetuning Classification Criteria for On-demand Audiovisual Media Services: the Dutch Approach. In Nicoltchev, S. (Ed.). Iris Special: The Regulation of On-demand Audiovisual Services: Chaos or Coherence?. Observatoire européen de l’audiovisuel: Strasbourg, 53-62; CSA (2012). Recommandation relative au périmètre de la régulation des services de medias audiovisuels, http://csa.be/system/documents_files/1713/original/CAC_20120329_recommandation_competence_materielle.pdf?1333030000.
CvdM (2011). Regeling houdende beleidsregels omtrent de classificatie van commerciële mediadiensten op aanvraag, http://www.cvdm.nl/dsresource?objectid=12335&type=org.
Kroes, N. (Vice-President of the European Commission responsible for the Digital Agenda), “Creativity for the Creative Sector: Entertaining Europe in the Electronic Age”, European Parliament Intellectual Property Forum, Brussels, 24 January 2012, SPEECH/12/30;
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/12/30.
Peggy Valcke is research professor at the University of Leuven and lectures media law at the University of Brussels. She is also visiting professor at the University of Tilburg and in the Florence School of Regulation at the European University Institute. She is the current director of the Interdisciplinary Centre for Law & ICT at the University of Leuven (ICRI-IBBT). Dr. Katrien Lefever is senior researcher at ICRI-IBBT, specialised in media law, sports law and advertising law. Jef Ausloos joined ICRI-IBBT in February 2012 as doctoral researcher.
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