Regulatory convergence - same old question, same right answer

Browsing through the responses to the Communications Review Open Letter in advance of the forthcoming Green Paper, I came across the answer from the Oxford Internet Institute to the posed question "Is regulatory convergence across different platforms desirable and, if so, what are the potential issues to implementation?".    The OII says, very sensibly:

"... it would be a significant mistake to seek regulatory convergence across platforms if this means imposing a model of broadcast regulation on the Internet. It is often assumed that the Internet is a modern era ‘Wild West’, lawless and unregulated. In fact, the opposite is true – there is already extensive regulation of Internet service provision, content and activities. We would argue that traditional regulatory models for broadcasting, common carriers (such as post or telecommunications) and the press cannot be imposed wholesale on the Internet without serious risks to its vitality and its contribution to the UK economy as well as potential chilling effects of speech."

I was reminded of another Green Paper 14 years ago - the European Commission Convergence Green Paper - which raised much the same question.  At the time, alarmed at the possibility that policymakers might unthinkingly apply anachronistic broadcast regulation to the internet, I wrote a piece for the Financial Times (8 April 1998) entitled "Networks without broadcast constraints".  Unblushingly I reproduce it below, if only to suggest that while the question may recur, the right answer remains unchanged. 

“In the 17th century John Milton, in his celebrated Areopagitica, argued against Oliver Cromwell's licensing of books and newspapers. Today,with the rise of the internet, the battle has begun for freedom of the digital networks.

The battleground is Brussels. Last December the European Commission published a Green Paper called "Convergence of the Telecommunications, Media and Information Technology Sectors, and the Implications for Regulation".

Convergence is the phenomenon that, thanks to advances in IT and communications technology, content no longer respects the technical boundaries of telephone, radio, television and cable. The Green Paper identifies the internet as "both the symbolic and prime driver". The Green Paper, open for consultation until the end of April, begins a debate about the regulatory environment for digital content. The outcome is important for traditional print media. As paper content migrates to digital networks, should digital content be licensed and subject to discretionary regulation as if it were broadcast?

Or should it be like print, which in liberal countries needs no licence and whose publishers are answerable only to general laws enacted by democratic institutions and enforced by independent courts ? In the rush to devise policy proposals for the internet, it is easy to assume that it is another variety of new media, which like broadcast should subject to discretionary content regulation.  Even if that could be justified, the analogy is misconceived. Spectrum on the internet is far from scarce. Internet content is not invasive. Every internet user is also potentially a publisher. The US Supreme Court, in the Communications Decency Act case, accepted these differences from broadcast media. It concluded that the net's content is as diverse as human thought and it deserved the highest degree of First Amendment protection.

Even so, digital networks remain at risk of having broadcast regulation imposed upon them. Outside Europe, Singapore has imposed a class licensing scheme for the internet under the control of the Singapore Broadcasting Authority. The UK Broadcasting Act arguably could apply to moving pictures on the net.

If the Broadcasting Act were to be extended to web versions of UK newspapers, they would have to be censored to comply with the Act's requirements of political and public policy neutrality. No editorials on the web. Freedom of speech would be the preserve of an ever-diminishing print rump. The Green Paper does acknowledge the principle of "no regulation for regulation's sake". It rightly points out that the IT industry operates in an unlicensed environment. It mentions that convergence may challenge licensing approaches based on perceived scarcity of radio-frequency and content. It refers to the possibility that different standards may apply to the same content provided over different platforms. It tends to favour lighter regulation. However, as paper content migrates to the networks, the Green Paper pays little attention to the need to preserve the freedom to publish that content without permission from the state.

Nowhere does it suggest a clear principle that licensing and discretionary regulation are inappropriate for content published over networks. Instead the paper tends to emphasise "self-regulatory" approaches that risk verging on government regulation by another name.

It points out that self-regulation for the net may lead to divergent approaches unless co-ordinated to some degree at a community level. So much for diversity - the essence of the internet - as a positive good. Martin Bangemann, EU commissioner, has called for an International Charter for global communications. He also suggested the possible need for a European Communications Act covering infrastructure, services, content and conditions of access.

A recurring theme in the debate is the need to regulate internet content effectively. Mr Bangemann, describing reactions to his call for an international charter, says that some people who are afraid we are heading for anarchy considered the internet something that must be brought under strict control.

The real need is to free the internet and other digital networks from the threat of censorship by licensing and discretionary regulation, and to establish them as subject only to settled laws protecting free speech, enforced by independent judges. If that were embodied in Mr. Bangemann's charter, it would be progress indeed. Achieving it in a world replete with countries whose governments do not value freedom of speech should be the important task for international lawmakers.”