Sunday 1 November 2015

Time to free the internet from TV-like regulation?

The CJEU has recently been applying itself to the question of what constitutes a TV-like audiovisual service on the internet. The New Media Online case was about a newspaper website with video content. It held that short local news bulletin, sports and entertainment video clips on a subdomain of the site could be a ‘programme’; and that assessment of the principal purpose of the service must focus on whether it had content and form independent of that of the journalistic activity of the site operator.

The CJEU was set this task by the Audiovisual Media Services (AVMS) Directive. This piece of EU legislation started life in 1989 as the TV without Frontiers Directive, intended in part to facilitate cross-border satellite broadcasting within the EU. In 2007 it morphed into the AVMS Directive. Over the initial objections of the UK government it became the vehicle, in the name of convergence and technical neutrality, for extending TV-like regulation to video on the internet.

Recently the European Commission has been consulting on a revision of the AVMS Directive, asking questions such as whether UGC hosting services such as YouTube and Vimeo should be regulated by the Directive and how to ensure a level playing field for audiovisual media services. 
  • Codeword Alert: level playing field. A level playing field tends to mean raising barriers to entry by imposing the incumbents’ own regulatory burdens on newcomers. The option to level the pitch by rolling back existing regulation rarely features. 
For whatever mysterious reason, when pictures flicker into motion the regulatory alarm bells go off. Suddenly the general law (obscenity, defamation and the rest, enforced through independent courts) is not enough. We must consider regulatory bodies armed with discretionary powers to make more and stricter rules. 

The argument, beguilingly, is that it is illogical to restrict TV regulation to traditional broadcast if the same content is available through the internet. That ignores the fact that TV regulation, far from being the norm, is itself an anomalous restriction on freedom to communicate – one rooted in antiquated notions of spectrum scarcity that the internet has blown to smithereens. As the European Commission itself said in its 1997 Convergence Green Paper: “…in a fully digital environment, scarcity may over time become a less significant issue, calling for current regulatory approaches to be reassessed.”

It is TV-like regulation, not lack of TV-like regulation, that should continually have to justify its existence - let alone extension to the internet. As Judge Dalzell said back in 1996 in ACLU v Reno, “The Internet is a far more speech-enhancing medium than print, the village green, or the mails … As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion”.

The current AVMS Directive applies a specific set of rules to TV-like video on demand services. In the UK we have seen exhaustive attempts to discern just what makes television TV-like, reminiscent of the 1987 case about the Henry Moore altar in the church of St Stephen Walbrook, which had the Court of Ecclesiastical Causes Reserved solemnly considering whether a table possessed a Platonic quality of tableness.

The UK implementation of the Directive set up ATVOD as the video on demand regulator, now to be superseded by OFCOM. Various cases resulting from ATVOD scope determinations have produced a stream of enquiries into whether some website misguided enough to carry video had exhibited sufficient TVness to be caught in the AVMS regulatory net.

Sites have been subjected to fine analysis of factors such as balance of moving images, still images and text, production values, use of opening and closing credits, layout and interface, narrative structure, long-form versus short-form video and debating what the exclusion of online versions of newspapers might mean.

Most head-scratchingly of all, TVness has to take into account whether “the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive”. This led to cases such as Playboy TV in which it was argued (unsuccessfully) that the Demand Adult channel was not TV-like because it contained material that would not be allowed on television.

Finding the essence of TVness was the subject of an 80 page OFCOM research report in 2009, followed by another in 2012 that identified ten indicators of TVness.

TVness is a moving target. The Directive specifies that the concept of ‘programme’ has to be interpreted “in a dynamic way taking into account developments in television broadcasting”. So, paradoxically, the less TV-like television becomes the stronger the pressure to widen the net of TV-like regulation: a built in tilting of the playing field in one direction.

Last year Ms Itziar Bilbao Urrutia, creator of The Urban Chick Supremacy Cell, succeeded in convincing an OFCOM appeal that her fetish-themed website (with a total of 58 paying customers) was not TV-like. The site now proudly announces: “We are the only fetish studio in UK that falls outside the AVMS Legislation & ATVOD's remit, and are exempt from complying with these draconian regulations of online video.”

OFCOM’s 29 page dissection of Ms Urrutia’s "art project designed, produced and created by real life dominant women," in which "all violence and speech are part of a fictionalized dystopian Femdom fantasy" is a model of dispassion.

Here is a sample of OFCOM’s comparison with ‘Lara’s World of Uniforms’, a television programme that ATVOD thought was comparable:

“We noted that it featured a mixture of scenes, some of which featured ‘Lara’ on location, dressed in uniform, either talking to camera or conducting an interview. Other scenes featured adult performers, typically dressed in uniform, engaging in sexual acts.”
Ofcom, however, thought this material was clearly distinguishable from the material available on the UCSC Service, in terms of both degree and type:
“The programme began with the host addressing the viewer in what appeared to be a scripted monologue. The programme then cut to a sequence involving Lara and another actress performing a scripted scene which culminated in them engaging in various sexual acts. Ofcom noted that contrastingly, the videos available on the UCSC Service featured very little use of scripted material. For example, Ofcom noted that the dialogue between the participants in the videos featuring sexual activity on the UCSC Service did not appear to have been rehearsed and was not obviously scripted.”
OFCOM’s dedication to the task of placing Ms Urrutia’s website in the correct pigeonhole is impressive. But is that a task that anyone should be called upon to perform? The significant question is not whether a particular service on the internet is TV-like, but whether TV-like regulation is appropriate for anything that happens on the internet. Rather than considering whether the Directive should be extended, the debate should surely be about rolling it back.

Could that mean that the movie received via broadcast on the television set in the living room is regulated differently from the same movie on the internet? Yes. Should we care about that? Not really. Some bumps on the playing field are perhaps a small price for securing the internet as a place governed by the law applicable to speech generally and not by TV-like discretionary regulation.

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