Rachael Craufurd-Smith speaks on EU audiovisual directive

Dr. Rachael Craufurd-Smith gave a talk last night at University College London (UCL), as part of its Current Legal Problems series. In the chair was Prof. Francis Jacobs (King’s College London, former advocate general at the ECJ), and in the audience were about 25-30 people, mostly students. I arrived just in time, finding my way to the ‘Laws lecture theatre’ in the appropriately-named Bentham building, after a quick-march walk from Kings Cross Thameslink.

Her chosen title was “Broadcasting and the Internet – Does Europe Need A New Audiovisual Services Directive?”, and it was an interesting presentation of the issues. Although I was familiar with a lot of the problems with the directive, from my own research earlier this year, I’ve tried to summarise the talk for the purposes of this blog entry as if it was relatively new to me! Bits in square brackets are interjections from me, so please don’t blame the good doctor for anything inside those shapes.

She described the proposed Audiovisual Media Services directive, a package of amendments to the existing Television Without Frontiers (TWF) directive (1989, amended in 1997). TWF deals with, naturally enough, ‘television’ in the first instance, but there is a competing regulatory regime for ‘information society services’ under the Electronic Commerce Directive (ECD), which is a much lighter approach than TWF. The rationale for the updating of TWF is the existence and growth of ‘non-linear’ or ‘on-demand’ services, such as video-on-demand. Craufurd-Smith professed herself “bemused” by the linear/non-linear distinction (where linear services, including TV are subject to much stricter regulation than non-linear services, which just have a basic floor of regulatory control), and also wondered aloud whether it opened up further questions on the regulation of press v broadcast, and user-generated content under European law.

Self-regulation is the favoured solution of many, and seems to be in the DNA of the Internet. However, as was argued, there has always been a patchwork of regulation, so the unregulable Internet is quite a myth. [This view has been dealt with in detail in Jack Goldsmith and Tim Wu’s 2006 book, Who Controls The Internet?, which has the telling subtitle of “Illusions of a Borderless World”] There is the added complication of the competence of the EU (or the Community) in this area; she reminded us of how TWF was in its day quite controversial, and firmly based on a ‘services’ rationale rather than a ‘cultural’ one (where harmonisation continues to be firmly excluded under article 151 of the EC Treaty).

The ‘country of origin’ principle is at the heart of both TWF and ECD. However, the ECD is different in allowing a strong possibility of derogation [although I’ve yet to see anyone produce compelling evidence on how everyone is derogating in such a horrible way!]. TWF allows regulation at a national level (as long as it complies with TWF standards on areas such as quotas, advertisements, sponsorship, the right of reply etc), but also obliges member states to allow broadcasters regulated in other states unrestricted access within their jurisdiction (as they’ve already been regulated once, under the common framework).

The Commission has been influenced by the Mediakabel case where a near-VOD service was found to be regulable as a broadcast, rather than an information society service. Other motivations include the technological changes that lead to greater Internet use, and indeed the commercialisation of the (originally academic and research-driven) Web. So the regulation for all AV media services will deal with incitement to hatred, identification of the creator, and so on. The ‘degree of user control’ is a major factor in making a service subject to the easier standard for non-linear services – ironic, she suggested, given that some interventions, such as the right of reply, might in fact be easier to implement for on-demand services. In this regard, the fact that the Commission has introduced a separate, non-binding document on the right of reply for all media (including print, non-linear and linear services) is quite intriguing.

The final portion of the speech was an expression of concern about the lack of public awareness of the European debate on the directive. In particular, she mentioned the regulation of hate speech and how the British legislation on incitement to religious hatred was controversial, and indeed scaled back through (in particular) the recommendations of the House of Lords. The role of freedom of expression, Craufurd-Smith suggested, is still an unclear one in EU law.

The question and answer period was brief, and covered that same free speech issue (with the chair suggesting that the European Court of Justice has adopted ‘margin of appreciation’ language more familiar from the European Court of Human Rights), as well as the failings of the existing TWF directive (in that harmonisation had not really happened!). I asked a question about the regulation of online (new media) linear services, and the difficulty of applying a common standard to over-the-air BBC television and unlicensed small-scale (but commercial) Internet video streams, which (if scheduled and uncustomised) would be considered as ‘linear’ services.

The chair made a telling remark about there being more questions posed than answered in the speech. I think that’s true. In particular, Dr. Craufurd-Smith’s discussion of the regulation of user-generated content (YouTube was frequently mentioned, although as YT hosts videos on its own server, sells advertising alongside it, and is located outside the EU, it may not be the best example) raises questions (which couldn’t be and were not dealt with in a speech to a reasonably general audience) on the relationship between ‘services’ (subject to easy Treaty regulation) and content. I also still have my concerns about the Commission’s ‘technologically neutral’ approach, because frankly I don’t believe it’s possible for technology to ‘be neutral’ or treated with neutrality, where media law is under discussion. But as was said at the start of the speech, the Parliament and Council are dealing with the Commission’s proposal right now, so perhaps answers may be on the way before long. I wouldn’t hold my breath.

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