Television Without Frontiers Directive Transcript

Transcription from podcast

Topic:	TV without Frontiers Directive
Speakers:	Ingrid Silver, Media Partner, Denton Wilde Sapte
	Kate Bulkley, Media & Telecommunications Journalist

Kate - I'm Kate Bulkley and I'm a freelance journalist and I'm here with Ingrid Silver. She's a partner in technology, media and telecoms practice at Denton Wilde Sapte.

Kate - Ingrid, thank you for joining us this morning on this podcast. We're going to talk about the Television Without Frontiers Directive. Now obviously this originally came into being in 1989. It seems like a long time ago now. How has the landscape changed? I know they are getting ready to update it. Why are they getting ready to update it now and how has the landscape changed?

Ingrid - Back in 1989 the media world looked pretty different to what it is today. We didn't have digital, we lived in an analogue world and when we talked about media, we just talked about traditional broadcast television. When we talk about media today, we're talking about digital, on demand, interactive, online, mobile, user generated content and the list goes on and who knows what's around the corner. So clearly, we are living in a very different media world to the one we lived in back in 1989.

Kate - Television Without Frontiers. Obviously, it's transforming into, we think, AMDS, which is a really wonderful shorthand for audiovisual media services directory. Is this really a fait accompli Ingrid?

Ingrid - It is done to a certain extent in that we pretty much know how it is going to look. Having said that there's an enormous amount of lobbying activity going on at the moment. For example, the Mobile Entertainment Forum has recently issued a paper presenting its members' position as to their objections and concerns around the Directive. And interestingly there is a new article being introduced in the draft AMS Directive, which says that member states should encourage co-regulation, which means that even once the Directive has been implemented, there's going to be enormous scope for industry to get involved and formulate its own regulatory regime to a certain extent and the way that regime can be enforced because there will be a co- regulatory element.

Kate - Proponents say that updating the Television Without Frontiers Directive is necessary to protect local culture, to protect minors. If we don’t have this kind of a Directive, how do we make sure we have a multicultural society? How do we make sure we are protecting our children?

Ingrid - Yes. Well I mean to a certain extent there is an argument to say that regulation was necessary to protect things like culture when we were in a traditional media environment because there was only a limited number of information sources reaching the masses, but in a world where the information sources are multiplying and it's easier and easier to put your own content out there, arguably there's no need now to do things like protect diversity and diversity of opinion and diversity of information sources because that information is available and things like user generated content are just becoming so prevalent that everyone can express their view. That doesn’t necessarily address the issue of protection of minors. The issue there is more about enforcing the rules and monitoring the content that is out there and that comes back to the co-regulation point. If industry doesn't play the game in terms of doing things like protecting minors, then its just not going to happen, but you could say that again, regulation isn't really necessary in that field because industry has a vested interest in making sure that they play by the rules and do things like protect minors in order to gain consumer confidence in their services.

Kate - If the internet changes everything, which a lot of people are saying, you know, is it really possible to regulate content?

Ingrid - Well, my personal view is that ultimately practically speaking it isn't possible to regulate content. That doesn’t mean you shouldn't try and set some basic ground rules and that doesn’t mean you shouldn’t set expectations.

Kate - Whose responsibility would it fall upon to enforce it? I mean, if let's say we come out with this new audio visual media services directive and it sort of says, you know, you are responsible, you ISPs, you individuals, you government? Who's going to…

Ingrid - Well, according to the Directive, it's the party that has editorial control that has to play by the rules, but often it's very hard to track down who that party is. So you tend to naturally go to the distribution channels. Obviously, they are going to push back because it involves a certain enormous amount of resource on their part to actively monitor, and second of all realistically they can't necessarily monitor all the content that they are carrying. So it’s a tricky one in terms of theoretically who should bear responsibility and practically who can bear responsibility.

Kate - We can get into some legal fights about this I can see it!

Ingrid - Oh absolutely!

Kate - Vivien Reading, who obviously is pushing this at the EU level, she says that the audio visual media services directive will be light touch and it will promote economic growth by giving certainty to content providers and creators. Companies like AOL obviously disagree with this. What do you think, is there a happy medium?

Ingrid - I can understand why Vivien Reading says what she does because the way the regulation currently stands, if I watch content on television, say Desperate Housewives, then it falls under the TV Without Frontiers Directive if it is carried on the right platform in a linear manner over a traditional transmission mechanism. If I watch exactly that same programming on an on demand basis, it's not caught by the rules and so we have this illogical situation where on the one hand if one type of content is transmitted in one way it's caught by the rules, but if exactly the same content is transmitted a different way, it's not caught by the rules, so there's definitely an argument to say that there needs to be technology neutrality and that all content should be regulated in the same way. On the other hand, I'm not sure that I agree with Commissioner Reading that this is a light touch regime to the extent that if you're a new media service trying to make your mark on the market and you're trying to evolve a new business model and experiment with things like revenue share and different mechanisms for distribution and payment and advertising, etc and you're just in your infancy, this set of rules can impose a regulatory burden on you that is going to stifle the evolution of these sorts of new services before they can even take off. You asked about what the happy medium might be. Well, in my mind I think there should be the opportunity for member states to carve out certain services until they hit a particular critical mass and the way to do that may be to simply apply economic criteria saying that until a service has hit a certain revenue threshold, then it shouldn’t be caught by the rules or alternatively, that until it has hit a certain number of users or subscriber level, it shouldn’t be caught by the rules. That would be the logical approach to rolling out the regime.

Kate - We've talked a lot about the big players, the AOLs, you know, the mobile operators what about the little guys? You know, the rocket booms, you know, U2, which is a video sharing site? How will they survive in a newly regulated world?

Ingrid - Well, I think if they take off they are very likely to get acquired because at the end of the day, it's the big boys who can afford to make the mistakes and experiment and invest a lot of money, so if the small guys get lucky and actually take off, chances are the big guys will acquire them.

Kate - One idea – I know we are drawing to the end of this – but one idea is self regulation. How do you feel about self regulation? A lot of companies are saying that's the way forward.

Ingrid - I totally agree that self regulation has to play a key role in the context of content and media distribution regulation because unless the industry buys into the regulatory regime there is simply no way to enforce it and I think we are at a critical juncture at the moment in that industry has the opportunity to express its views and express what can be a realistic regulatory regime prior to everything being finalised in the form of a final Directive.

Kate - Thank you Ingrid.