Cyberleagle Christmas Quiz 2019

This year the answers (such as may exist) can be found in the about to be published 5^th edition of Internet Law and Regulation.

1. What is the essence of TV-ness?
2. For the purposes of interception legislation, is there such a thing as a communication with no intended recipient?
3. In which country did the first reported extradition for criminal copyright infringement take place?
4. English defamation law recognises a targeting test for cross-border publication. True or false?
5. A web site proprietor can be liable in negligence to users who rely on incorrect information on its site. True or false?
6. Can new sites can be added to a site blocking injunction without the approval of the court?
7. Is it defamatory to accuse someone of copying?
8. English law recognises the concept of a dishonest device. True or false?
9. The Electronic Commerce (EC Directive) Regulations 2002 implement the EU Electronic Commerce Directive in English law. True or false?
10. In English law, site blocking injunctions are limited to intellectual property infringement. True or false?
11. Only a qualified electronic signature has legal effect equivalent to a handwritten signature. True or false?
12. Under the Investigatory Powers Act 2016, is the web address ‘news.bbc.co.uk’ treated as content or as communications data?
13. Can dishonest exploitation of a patent be a criminal offence?
14. The Defamation Act 1996 superseded the common law subordinate disseminator defence. True or false?
15. Can copyright subsist in a URL?
16. Can an online intermediary can be bound by an injunction in proceedings to which it is not a party?
17. Under the ECommerce Directive intermediary liability provisions, what is the difference between liability ‘because’ of a third party’s infringement and liability ‘in respect of’ it?
18. How many times in a single judgment did one judge use stealing, theft, or similar epithets to describe internet copyright infringement?
19. Linking to grossly offensive material can constitute an offence under S.127 Communications Act 2003. True or false?
20. For a computer to computer communication, what is the meaning of meaning?

The Rule of Law and the Online Harms White Paper

Before the publication of the Online Harms White Paper on 8 April 2019 I proposed a Ten Point Rule of Law test to which it might usefully be subjected.

The idea of  the test is less to evaluate the substantive merits of the government’s proposal – you can find an analysis of those here – but more to determine whether it would satisfy fundamental rule of law requirements of certainty and precision, without which something that purports to be law descends into ad hoc command by a state official.

Here is an analysis of the White Paper from that perspective. The questions posed are whether the White Paper demonstrates sufficient certainty and precision in respect of each of the following matters.

1.    Which operators are and are not subject to the duty of care

The White Paper says that the regulatory framework should apply to “companies that allow users to share or discover user-generated content, or interact with each other online.”

This is undoubtedly broad, but on the face of it is reasonably clear.  The White Paper goes on to provide examples of the main types of relevant service:

-             Hosting, sharing and discovery of user-generated content (e.g. a post on a public forum or the sharing of a video).

-             Facilitation of public and private online interaction between service users (e.g. instant messaging or comments on posts).

However these examples introduce a significant element of uncertainty. Thus, how broad is ‘facilitation’? The White Paper gives a clue when it mentions ancillary services such as caching. Yet it is difficult to understand the opening definition as including caching.

The White Paper says that the scope will include “social media companies, public discussion forums, retailers that allow users to review products online, along with non-profit organisations, file sharing sites and cloud hosting providers.”  In the Executive Summary it adds messaging services and search engines into the mix. Although the White Paper does not mention them, online games would clearly be in scope as would an app with social or discussion features.

Applicability to the press is an area of significant uncertainty. Comments sections on newspaper websites, or a separate discussion forum run by a newspaper such as in the Karim v Newsquest case would on the face of it be in scope. However, in a letter to the Society of Editors the Secretary of State has said:

“… as I made clear at the White Paper launch and in the House of Commons, where these services are already well regulated, as IPSO and IMPRESS do regarding their members' moderated comment sections, we will not duplicate those efforts. Journalistic or editorial content will not be affected by the regulatory framework.”

This exclusion is nowhere stated in the White Paper. Further, it does not address the fact that newspapers are themselves users of social media. They have Facebook pages and Twitter accounts, with links to their own websites. As such, their own content is liable to be affected by a social media platform taking action to suppress user content in performance of its duty of care.

The verdict on this section might have been ‘extremely broad but clearly so’. However the uncertainty introduced by ‘facilitation’, and by the lack of clarity about newspapers, results in a FAIL.

2.      To whom the duty of care is owed

The answer to this appears to be ‘no-one’. That may seem odd, especially when Secretary of State Jeremy Wright referred in a recent letter to the Society of Editors to “a duty of care between companies and their users”, but what is described in the White Paper is not in fact a duty of care at all.

The proposed duty would not provide users with a basis on which to make a damages claim against the companies for breach, as is the case with a common law duty of care or a statutory duty of care under, say, the Occupiers’ Liability Act 1957.

Nor, sensibly, could the proposed duty do so since its conception of harm strays beyond established duty of care territory of risk of physical injury to individuals, into the highly contestible region of speech harms and then on into the unmappable wilderness of harm to society.

Thus in its introduction to the harms in scope the White Paper starts by referring to online content or activity that ‘harms individual users’, but then goes on: “or threatens our way of life in the UK, either by undermining national security, or by reducing trust and undermining our shared rights, responsibilities to foster integration.”

In the context of disinformation it refers to “undermining our respect and tolerance for each other and confusing our understanding of what is happening in the wider world.”

Whatever (if anything) these abstractions may mean, they are not the kind of thing that can properly be made the subject of a legal duty of care in the offline world sense of the phrase.

The proposed duty of care is something quite different: a statutory framework giving a regulator discretion to decide what should count as harmful, what kinds of behaviour by users should be regarded as causing harm, what rules should be put in place to counter it, and which operators to prioritise.

From a rule of law perspective the answer to the question posed is that it does seem clear that the duty would be owed to no one. In that limited sense it probably rates a PASS, but only by resisting the temptation to change that to FAIL for the misdescription of the scheme as creating a duty of care.

Nevertheless, the fact that the duty is of a kind that is owed to no-one paves the way for a multitude of FAILs for other questions.

3.      What kinds of effect on a recipient will and will not be regarded as harmful

This is an obvious FAIL. The White Paper has its origins in the Internet Safety Strategy Green Paper, yet does not restrict itself to what in the offline world would be regarded as safety issues.  It makes no attempt to define harm, apparently leaving it up to the proposed Ofweb to decide what should and should not be regarded as harmful. Some examples given in the White Paper suggest that effect on the recipient is not limited to psychological harms, or even distress.

This lack of precision is exacerbated by the fact that the kinds of harm contemplated by the White Paper are not restricted to those that have an identifiable effect on a recipient of the information, but appear to encompass nebulous notions of harm to society.

4.      What speech or conduct by a user will and will not be taken to cause such harm

The answer appears to be, potentially, “any”. The WP goes beyond defined unlawfulness into undefined harm, but places no limitation on the kind of behaviour that could in principle be regarded as causing harm. From a rule of law perspective of clarity this may be a PASS, but only in the sense that the kind of behaviour in scope is clearly unlimited.

5.      If risk to a hypothetical recipient of the speech or conduct in question is sufficient, how much risk suffices and what are the assumed characteristics of the notional recipient

FAIL. There is no discussion of either of these points, beyond emphasising many times that children as well as adults should be regarded as potential recipients (although whether the duty of care should mean taking steps to exclude children, or to tailor all content to be suitable for children, or a choice of either, or something else, is unclear). The White Paper makes specific reference to children and vulnerable users, but does not limit itself to those.

6.      Whether the risk of any particular harm has to be causally connected (and if so how closely) to the presence of some particular feature of the platform

FAIL. The White Paper mentions, specifically in the context of disinformation, the much discussed amplification, filter bubble and echo chamber effects that are associated with social media. More broadly it refers to ‘safety by design’ principles, but does not identify any design features that are said to give rise to a particular risk of harm.

The safety by design principles appear to be not about identifying and excluding features that could be said to give rise to a risk of harm, but more focused on designing in features that the regulator would be likely to require of an operator in order to satisfy its duty of care.

Examples given include clarity to users about what forms of content are acceptable, effective systems for detecting and responding to illegal or harmful content, including the use of AI-based technology and trained moderators; making it easy for users to report problem content, and an efficient triage system to deal with reports.

7.      What circumstances would trigger an operator's duty to take preventive or mitigating steps

FAIL. The specification of such circumstances would left up to the discretion of Ofweb, in its envisaged Codes of Practice or, in the case of terrorism or child sexual exploitation and abuse, the discretion of the Home Secretary via approval of OfWeb’s Codes of Practice.

The only concession made in this direction is that the government is consulting on whether Codes of Practice should be approved by Parliament. However it is difficult to conclude that laying the detailed results of a regulator’s ad hoc consideration before Parliament for approval, almost certainly on a take it or leave it basis, has anything like the same democratic or constitutional force as requiring Parliament to specify the harms and the nature of the duty of care with adequate precision in the first place.

8.      What steps the duty of care would require the operator to take to prevent or mitigate harm (or a perceived risk of harm)

The White Paper says that legislation will make clear that companies must do what is reasonably practicable. However that is not enough to prevent a FAIL, for the same reasons as 7. Moreover, it is implicit in the White Paper section on Fulfilling the Duty of Care that the government has its own views on the kinds of steps that operators should be taking to fulfil the duty of care in various areas. This falls uneasily between a statutorily defined duty, the role of an independent regulator in deciding what is required, and the possible desire of government to influence an independent regulator.

9.      How any steps required by the duty of care would affect users who would not be harmed by the speech or conduct in question

FAIL. The White Paper does not discuss this, beyond the general discussion of freedom of expression in the next question.

10.   Whether a risk of collateral damage to lawful speech or conduct (and if so how great a risk of how extensive damage), would negate the duty of care

The question of collateral damage is not addressed, other than implicitly in the various statements that the government’s vision includes freedom of expression online and that the regulatory framework will “set clear standards to help companies ensure safety of users while protecting freedom of expression”.

Further, “the regulator will have a legal duty to pay due regard to innovation, and to protect users’ rights online, taking particular care not to infringe privacy or freedom of expression.” It will “ensure that the new regulatory requirements do not lead to a disproportionately risk averse response from companies that unduly limits freedom of expression, including by limiting participation in public debate.”

Thus consideration of the consequence of a risk of collateral damage to lawful speech it is left up to the decision of a regulator, rather than to the law or a court. The regulator will presumably, by the nature of the proposal, be able to give less weight to the risk of suppressing lawful speech that it considers to be harmful. FAIL.

Postscript It may said against much of this analysis that precedents exist for appointing a discretionary regulator with power to decide what does and does not constitute harmful speech.

Thus, for broadcast, the Communications Act 2003 does not define “offensive or harmful” and Ofcom is largely left to decide what those mean, in the light of generally accepted standards.

Whatever the view of the appropriateness of such a regime for broadcast, the White Paper proposals would regulate individual speech. Individual speech is different. What is a permissible regulatory model for broadcast is not necessarily justifiable for individuals, as was recognised in the US Communications Decency Act case (Reno v ACLU) in the early 1990s. The US Supreme Court found that:

“This dynamic, multi-faceted category of communication includes not only traditional print and news services, but also audio, video and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, ‘the content on the internet is as diverse as human thought’ ... We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.’

In these times it is hardly fashionable, outside the USA, to cite First Amendment jurisprudence. Nevertheless, the proposition that individual speech is not broadcast should carry weight in a constitutional or human rights court in any jurisdiction.

A Lord Chamberlain for the internet? Thanks, but no thanks.

This summer marked the fiftieth anniversary of the Theatres Act 1968, the legislation that freed the theatres from the censorious hand of the Lord Chamberlain of Her Majesty’s Household. Thereafter theatres needed to concern themselves only with the general laws governing speech. In addition they were granted a public good defence to obscenity and immunity from common law offences against public morality.

The Theatres Act is celebrated as a landmark of enlightenment. Yet today we are on the verge of creating a Lord Chamberlain of the Internet. We won't call it that, of course. The Times, in its leader of 5 July 2018, came up with the faintly Orwellian "Ofnet". Speculation has recently renewed that the UK government is laying plans to create a social media regulator to tackle online harm. What form that might take, should it happen, we do not know. We will find out when the government produces a promised white paper.

When governments talk about regulating online platforms to prevent harm it takes no great leap to realise that we, the users, are the harm that they have in mind.

The statute book is full of legislation that restrains speech. Most, if not all, of this legislation applies online as well as offline. Some of it applies more strictly online than offline. These laws set boundaries: defamation, obscenity, intellectual property rights, terrorist content, revenge porn, harassment, incitement to racial and religious hatred and many others. Those boundaries represent a balance between freedom of speech and harm to others. It is for each of us to stay inside the boundaries, wherever they may be set. Within those boundaries we are free to say what we like, whatever someone in authority may think. Independent courts, applying principles, processes and presumptions designed to protect freedom of speech, adjudge alleged infractions according to clear, certain laws enacted by Parliament.

But much of the current discussion centres on something quite different: regulation by regulator. This model concentrates discretionary power in a state agency. In the UK the model is to a large extent the legacy of the 1980s Thatcher government, which started the OF trend by creating OFTEL (as it then was) to regulate the newly liberalised telecommunications market. A powerful regulator, operating flexibly within broadly stated policy goals, can be rule-maker, judge and enforcer all rolled into one.

That may be a long-established model for economic regulation of telecommunications competition, energy markets and the like. But when regulation by regulator trespasses into the territory of speech it takes on a different cast. Discretion, flexibility and nimbleness are vices, not virtues, where rules governing speech are concerned. The rule of law demands that a law governing speech be general in the sense that it applies to all, but precise about what it prohibits. Regulation by regulator is the converse: targeted at a specific group, but laying down only broadly stated goals that the regulator should seek to achieve.
As OFCOM puts it in its recent discussion paper ‘Addressing Harmful Online Content’: “What has worked in a broadcasting context is having a set of objectives laid down by Parliament in statute, underpinned by detailed regulatory guidance designed to evolve over time. Changes to the regulatory requirements are informed by public consultation.”

Where exactly the limits on freedom of speech should lie is a matter of intense, perpetual, debate. It is for Parliament to decide, after due consideration, whether to move the boundaries. It is anathema to both freedom of speech and the rule of law for Parliament to delegate to a regulator the power to set limits on individual speech.

It becomes worse when a document like the government’s Internet Safety Strategy Green Paper takes aim at subjective notions of social harm and unacceptability rather than strict legality and illegality according to the law. ‘Safety’ readily becomes an all-purpose banner under which to proceed against nebulous categories of speech which the government dislikes but cannot adequately define.

Also troubling is the frequently erected straw man that the internet is unregulated. This blurs the vital distinction between the general law and regulation by regulator. Participants in the debate are prone to debate regulation as if the general law did not exist.

Occasionally the difference is acknowledged, but not necessarily as a virtue. The OFCOM discussion paper observes that by contrast with broadcast services subject to long established regulation, some newer online services are ‘subject to little or no regulation beyond the general law’, as if the general law were a mere jumping-off point for further regulation rather than the democratically established standard for individual speech.

OFCOM goes on that this state of affairs was “not by design, but the outcome of an evolving system”. However, a deliberate decision was taken with the Communications Act 2003 to exclude OFCOM’s jurisdiction over internet content in favour of the general law alone.

Moving away from individual speech, the OFCOM paper characterises the fact that online newspapers are not subject to the impartiality requirements that apply to broadcasters as an inconsistency. Different, yes. Inconsistent, no.

Periodically since the 1990s the idea has surfaced that as a result of communications convergence broadcast regulation should, for consistency, apply to the internet. With the advent of video over broadband aspects of the internet started to bear a superficial resemblance to television. The pictures were moving, send for the TV regulator.

EU legislators have been especially prone to this non-sequitur. They are currently enacting a revision of the Audiovisual Media Services Directive that will require a regulator to exercise some supervisory powers over video sharing platforms.

However broadcast regulation, not the rule of general law, is the exception to the norm. It is one thing for a body like OFCOM to act as broadcast regulator, reflecting television’s historic roots in spectrum scarcity and Reithian paternalism. Even that regime is looking more and more anachronistic as TV becomes less and less TV-like. It is quite another to set up a regulator with power to affect individual speech. And it is no improvement if the task of the regulator is framed as setting rules about the platforms’ rules. The result is the same: discretionary control exercised by a state entity (however independent of the government it may be) over users’ speech, via rules that Parliament has not specifically legislated.

It is true, as the OFCOM discussion paper notes, that the line between broadcast and non-broadcast regulation means that the same content can be subject to different rules depending on how it is accessed. If that is thought to be anomalous, it is a small price to pay for keeping regulation by regulator out of areas in which it should not tread.

The House of Commons Media Culture and Sport Committee, in its July 2018 interim report on fake news, recommended that the government should use OFCOM’s broadcast regulation powers, “including rules relating to accuracy and impartiality”, as “a basis for setting standards for online content”. It is perhaps testament to the loss of perspective that the internet routinely engenders that a Parliamentary Committee could, in all seriousness, suggest that accuracy and impartiality rules should be applied to the posts and tweets of individual social media users.

Setting regulatory standards for content means imposing more restrictive rules than the general law. That is the regulator’s raison d’etre. But the notion that a stricter standard is a higher standard is problematic when applied to what we say. Consider the frequency with which environmental metaphors – toxic speech, polluted discourse – are now applied to online speech. For an environmental regulator, cleaner may well be better. The same is not true of speech. Offensive or controversial words are not akin to oil washed up on the seashore or chemicals discharged into a river. Objectively ascertainable physical damage caused by an oil spill bears no relation to a human being evaluating and reacting to the merits and demerits of what people say and write.

If we go further and transpose the environmental precautionary principle to speech we then have prior restraint – the opposite of the presumption against prior restraint that has long been regarded as a bulwark of freedom of expression. All the more surprising then that The Times, in its July Ofnet editorial, should complain of the internet that “by the time police and prosecutors are involved the damage has already been done”. That is an invitation to step in and exercise prior restraint.

As an aside, do the press really think that Ofnet would not before long be knocking on their doors to discuss their online editions? That is what happened when ATVOD tried to apply the Audiovisual Media Services Directive to online newspapers that incorporated video. Ironically it was The Times' sister paper, the Sun, that successfully challenged that attempt.

The OFCOM discussion paper observes that there are “reasons to be cautious over whether [the broadcast regime] could be exported wholesale to the internet”. Those reasons include that “expectations of protection or [sic] freedom of expression relating to conversations between individuals may be very different from those relating to content published by organisations”.

US district judge Dalzell said in 1996: “As the most participatory form of mass speech yet developed, the internet deserves the highest protection from governmental intrusion”. The opposite view now seems to be gaining ground: that we individuals are not to be trusted with the power of public speech, that it was a mistake ever to allow anyone to speak or write online without the moderating influence of an editor, and that by hook or by crook the internet genie must be stuffed back in its bottle.

Regulation by regulator, applied to speech, harks back to the bad old days of the Lord Chamberlain and theatres. In a free and open society we do not appoint a Lord Chamberlain of the Internet – even one appointed by Parliament rather than by the Queen - to tell us what we can and cannot say online, whether directly or via the proxy of online intermediaries. The boundaries are rightly set by general laws.

We can of course debate what those laws should be. We can argue about whether intermediary liability laws are appropriately set. We can consider what tortious duties of care apply to online intermediaries and whether those are correctly scoped. We can debate the dividing line between words and conduct. We can discuss the vexed question of an internet that is both reasonably safe for children and fit for grown-ups. We can think about better ways of enforcing laws and providing victims of unlawful behaviour with remedies. These are matters for public debate and for Parliament and the general law within the framework of fundamental rights. None of this requires regulation by regulator. Quite the opposite.

Nor is it appropriate to frame these matters of debate as (in the words of The Times) “an opportunity to impose the rule of law on a legal wilderness where civic instincts have been suspended in favour of unthinking libertarianism for too long”. People who use the internet, like people everywhere, are subject to the rule of law. The many UK internet users who have ended up before the courts, both civil and criminal, are testament to that. Disagreement with the substantive content of the law does not mean that there is a legal vacuum.

What we should be doing is take a hard look at what laws do and don’t apply online (the Law Commission is already looking at social media offences), revise those laws if need be and then look at how they can most appropriately be enforced.

This would involve looking at areas that it is tempting for a government to avoid, such as access to justice. How can we give people quick and easy access to independent tribunals with legitimacy to make decisions about online illegality? The current court system cannot provide that service at scale, and it is quintessentially a job for government rather than private actors. More controversially, is there room for greater use of powers such as ‘internet ASBOs’ to target the worst perpetrators of online illegality? The existing law contains these powers, but they seem to be little used.

It is hard not to think that an internet regulator would be a politically expedient means of avoiding hard questions about how the law should apply to people’s behaviour on the internet. Shifting the problem on to the desk of an Ofnet might look like a convenient solution. It would certainly enable a government to proclaim to the electorate that it had done something about the internet. But that would cast aside many years of principled recognition that individual speech should be governed by the rule of law, not the hand of a regulator.

If we want safety, we should look to the general law to keep us safe. Safe from the unlawful things that people do offline and online. And safe from a Lord Chamberlain of the Internet.

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.

The Convergence Green Paper that the European Commission didn’t write

The new European Commission Green Paper “Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values” seems to have been a mouthful even for the Commission’s own PR department.  The press release translates it into ‘Internet on TV, TV on Internet’ - which does give a better flavour of what the Green Paper is about.

The Green Paper is a typical Commission mixture of current technology trends (dual screening gets a mention), market statistics leavened with a few anecdotes, lobbyists’ issues of the moment and hints of interventions that the Commission may have in mind for the future.  These are all underpinned by an unwavering belief in the efficacy of State-led intervention to achieve the Commission’s chosen public policy objectives.

As is de rigeur in documents such as this, the Commission has a grand vision:

“to seize the opportunity of this changing technological environment to ensure the widest possible access to European diversified content for all Europeans and, the widest choice of high quality offers”. 

That hints of a more interventionist Fortress Europe attitude than the Commission’s December 1997 Convergence Green Paper (PDF):

“This first step is intended to pave the way for the development of an appropriate regulatory environment which will facilitate the full achievement of the opportunities offered by the Information Society, in the interests of Europe and its citizens as the 21st century begins.”

Beyond the grand vision there is some fairly controversial stuff in the new Green Paper, particularly around the possibility of extending the Audiovisual Media Services Directive both in scope and to non-EU service providers. 

But I am afraid I tired of the DG-speak.  I started to imagine the 2013 Convergence Green Paper that the Commission could have written, but didn’t. 

Here it is.

“15 years ago, in December 1997, we at the Commission published a Convergence Green Paper.   We said:

“… the Commission's Communication on electronic commerce … proposed the principle of 'no regulation for regulation's sake'.   This principle applies equally to all areas of convergence.”

We tentatively suggested five key regulatory principles that should govern our activity in the field of convergence.  They included:

“Regulation should be limited to what is strictly necessary to achieve clearly identified objectives.”

Of those five regulatory principles that we suggested in 1997, this remains the most important.  We observed then that:

“public authorities must avoid approaches which lead to over-regulation, or which simply seek to extend existing rules in the telecommunications and media sectors to areas and activities which are largely unregulated today.”

The Commission recognises that the pursuit by government of general policy goals – such as media pluralism, cultural diversity, protection of consumers and minors, media literacy – carries with it the potential for unintended consequences and regulatory failure and to undo the general good that comes from freedom of private action.  The Commission appreciates that government failure is a more significant risk than market failure.    

Adhering to the principle of strict necessity, the Commission’s goal now must be to clear away all regulatory and legislative obstacles to future innovation in the audiovisual sphere.  The only permissible exception can be regulation that is conclusively demonstrated, by the most stringent criteria, to be both necessary and effective for the achievement of a generally agreed legitimate public policy objective; which carries a demonstrably minimal risk of unintended or damaging negative consequences, risk of regulatory capture or other regulatory failure; and which does not disproportionately interfere in fundamental human rights, in particular the right of freedom of speech.

The Commission recognises that the internet has brought forth the greatest flowering of individual communication and access to knowledge since the dawn of mankind.  Speech on the internet is a delicate flower which must not be damaged.  The Commission applauds the comments in the Joint Dissenting Opinion in the recent Animal Defenders case in the European Court of Human Rights:

“there seems to be an inherent contradiction in a viable democracy safeguarded by broadcasting restrictions. … A robust democracy is not helped by well-intentioned paternalism.”

Stated simply, the Commission’s role is now to clear the field of regulation and move out of the way.  This will enable the peoples of Europe to make their own viewing and listening choices at all levels: international, nation, group, community and individual.  If some people prefer Disney to Hugo, that is an expression of their individual autonomy and right to cultural self-determination.  As such it is outside the legitimate sphere of action of the Commission.

Each person in Europe must be free to choose and pursue their own personal goals.  It is not for the Commission to formulate policy goals and then to expect private actors, economic or otherwise, to pursue objectives that we set for them.  The Commission does not know what form any future innovation will take, or what the pace of innovation will be.  Nor can it ever know.  It is not the Commission’s place to attempt predictions, still less to formulate interventions based upon them. 

The Commission does not believe that it should set concrete targets to be achieved by some arbitrary future date.  We at the Commission shiver with embarrassment at the memory of the programme to ‘Complete the European Single Market by 31 December 1992’ - for all the world like some Soviet era tractor production plan.

The Commission recognises that innovation brings change.  It is no part of the Commission’s role to save legacy actors from the consequences of change, nor to try to influence future change in a particular direction.  The Commission recognises that any adverse consequences of change for particular sectoral and vested interests are outside the Commission’s legitimate sphere of action.  The Commission strongly believes that the European taxpayer should not to be compelled to subsidise historic industries in the name of cultural diversity. 

Turning specifically to the audio-visual sector, in the 1997 Green Paper the Commission said:

"… convergence may lead to less regulation in telecommunications and media sectors, and should not lead to more regulation in areas such as IT."

And

"Convergence may challenge current regulatory approaches, particularly, with regard to licensing of networks and allocation of resources, where such approaches reflect a perceived scarcity of both radio-frequency and of content."

"…in a fully digital environment, scarcity may over time become a less significant issue, calling for current regulatory approaches to be reassessed."  

Since scarcity has now all but disappeared, other than where artificially created by regulation, the time has come to reassess current regulatory approaches. 

Ideally the Commission would propose to sweep away the archaic structures of broadcast regulation, which have their roots in the government spectrum grabs of the mid 20^th century.  However we recognise that most Member States will continue to cling to these regulatory models like the man with the red flag in front of the early motor car. 

Pragmatically, broadcast regulation is likely to wither as it becomes less and less relevant.  It is however imperative, as articulated in the 1997 Green Paper, to prevent outdated broadcast regulatory models from spreading any further, especially to the internet.  We now realise that it was a serious error in the AVMS Directive to extend regulation to so-called ‘TV-like’ on-demand services.  We will roll that back at the earliest opportunity.

The cross-border aspect of the internet is becoming increasingly significant.  The AVMS Directive does not apply to services originating outside the EU.  The Commission recognises that the people of Europe are readily able to understand that incoming foreign services are created under different sets of legal standards and to appreciate those services in that context. 

In the spirit of international cultural diversity the Commission believes that the fewest possible obstacles should be put in the way of incoming non-EU services, including where they are targeted at the EU.  The Commission would regard it as an act of unwarranted arrogance for the EU to seek to apply its content laws to services originating in non-EU countries and regions. 

The choice of European citizens to access and be informed about non-EU services that may not adhere to European content laws or standards should therefore not be denied or hindered by any Member State.  The Commission especially welcomes the opportunity for European citizens to share in the rich and diverse cultural heritage of the USA.”

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.”

Avoidable ATVOD

Following OFCOM’s ruling in the Sun Video case, what does the future hold for ATVOD? 

ATVOD sees itself as a model for co-regulation, whose expertise can usefully inform the forthcoming Communications Green Paper: 

“Our experience is that co-regulation of video on demand services has proved capable of yielding nimble, economical solutions and the promise of establishing a broad consensus around light touch regulation.” (Letter to Minister for Culture, Media and Sport, 28 June 2011)

Others view it differently.  In July 2011 Lord Clement-Jones criticised ATVOD in Parliament as expensive, too wide in scope, far from light touch and already giving rise to litigation. 

An answer to a Parliamentary question in November 2011 revealed that complaints to ATVOD about audiovisual services were running at about two a day since April 2011.  No complaints had resulted in a finding of breach of content standards.  ATVOD costs around £450,000 per annum, recouped by fees levied on about 150 regulated VOD services.

The question is bound to be asked, come the Communications Green Paper, whether ATVOD should now be given a decent burial.  What purpose is served by an extra layer of content regulation - whether ATVOD-style co-regulation or a full-blown statutory regulator – over and above the general law, especially when funded by imposing substantial costs on a small section of industry?

Are there alternatives?  The UK government does have to comply with the AVMS Directive, which lays down content requirements specific to TV-like audiovisual services.  However those can be enshrined in a few paragraphs of statute, with a sanction such as the ability for a person affected to apply to court for an injunction.  That, in conjunction with a voluntary code of conduct, is how the Irish government has implemented the AVMS Directive.

Subjecting on-demand audiovisual services to an appropriately crafted statute would remove the need for a funded regulatory or co-regulatory body and provide a regime much closer to that applicable to most other speech and content, both generally and on the internet.

An Irish-style approach was never considered when the UK government consulted on the implementation of the AVMS Directive in 2008.  The Communications Green Paper would provide the perfect opportunity to reconsider the need for any regulator at all. 

OFCOM reins in VOD regulator’s reach

ATVOD’s high-profile campaign to bring video sections of newspaper websites under its regulatory wing has hit the buffers. 

Just before Christmas OFCOM ruled, in an appeal from an ATVOD determination, that the Sun Video elements of the Sun website are not a TV-like video on demand service.  ATVOD has promptly dropped similar cases against eight other newspaper and magazine sites.

OFCOM found that ATVOD’s original determination on the Sun site concentrated too much on the part of the in which the video links were collected together, rather than the site as a whole, and were wrong to conclude that the video links were a separate service in their own right.  They were an incidental part of the Sun newspaper site, and it was not possible to identify anything within the site whose principal purpose was the provision of audiovisual material.  OFCOM having reached this conclusion, it did not go on to consider whether the audiovisual material was comparable to a television service.  

OFCOM did address the general question of whether the Sun’s website provided a service that the Directive sought to bring within its regulatory scope.  In particular OFCOM considered Recital 24: 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.

OFCOM concluded that the user would not regard the audiovisual material on the Sun website as competing with television programmes, nor expect what he was viewing to be regulated as such. Rather, as far as the written contents of the website and the Video section were concerned, the user would likely regard himself as viewing the electronic version of The Sun newspaper.

The 47 page OFCOM decision gives detailed guidance on the factors that are likely to influence whether provision of audiovisual material is a principal purpose of a website.  These include:

-         Whether the audiovisual material has its own homepage; or by contrast whether it is accessible via a homepage that is styled as providing, and in practice does provide, some other service with its own independent identity

-         Whether, where it is made available on a website providing other content, such as written articles, a significant amount of the relevant audiovisual material is catalogued and accessed via a separate section of the website

-         Whether the audio visual material is presented or styled and marketed as a television channel, e.g. as ‘X TV’

-         Whether a significant amount of the audiovisual material is of a substantial duration and/or comprises complete programmes, rather than bite-sized clips or extracts from longer programmes; and whether it has an independence that means it is watched and fully understood on its own.  Material comprising clips of short duration whose context, meaning and significance is only properly or fully understood by reading accompanying written material is more likely to be ancillary to some other service.

-         The degree to which there are access links between the relevant audio visual material and other content. For example, audio visual material that is an ancillary part of an electronic newspaper is more likely to contain a significant number of links between that material and written articles in the nature of “click to read story/view video”, and/or of videos embedded in written articles.

-         The degree to which there are content links between audiovisual material and other content. For example, audio visual material that is an ancillary part of an electronic newspaper is more likely to be the basis or subject matter of written articles, to be an audiovisual version of the written article or an amplified or enhanced experience of that article; and the audio visual material does not need to be watched for the user to receive the information the service seeks to convey.

-         Where the service provides audiovisual and written material:

(a)  the balance between the two kinds of material, in terms of quantity and/or prominence

(b)  whether the written material is brief and/or merely an introduction to, or summary of, the audio visual material or, by contrast, has significant length and depth; and

(c)   whether the audiovisual material is the primary means of conveying to users the information sought to be conveyed

-         Whether on an overall assessment the audiovisual material can or cannot be said to be integrated into, or ancillary to, another service. In particular, whether the material can reasonably be described as intended specifically to allow the viewing public to benefit fully from, or to interact with, information provided as part of some other, primary, service.

None of the specific factors is determinative. The service has to be considered in the round.   For instance, even though the Sun Video section was at one time branded as Sun TV, that alone was not enough to bring it within regulatory scope; nor was the fact that the Sun Video section had a cataloguing function.

While the OFCOM ruling leaves open the possibility that in some factual circumstances a newspaper site might contain a separate regulated video service, it does significantly restrict ATVOD’s regulatory reach.  Following OFCOM’s ruling the ATVOD Chief Executive Pete Johnson said:

“Most people will recognise that defining the scope of new regulations in a fast-moving market is a complex and difficult task. The appeal system is a vital part of the process, giving users and providers of video on demand services greater clarity over where the new protections for consumers do and do not apply. … We will now reflect further on the appeal judgement and consider any implications it may have for any other past and future rulings on whether a service falls within ATVOD’s remit.”