Television With or Without Frontiers?

Following on from Roger Darlington�s post last Wednesday �What happens when broadcasting and the Internet collide?� I was fortunate enough to attended a Westminster Media Forum seminar concerning the revision of the Television Without Frontiers directive on that very day and I can perhaps shed a little light on what is planned although not without creating a lot more.

There is still a great deal of work to be done before the new version of the directive is anywhere near ready, but the basic thrust is clear. Television and Internet technologies are converging and what we need (so we are told) is more regulation that includes Internet services. Regulation will continue for traditional broadcast services in much the same way as it does now, but will be extended to include IPTV, streamed content and near Video On Demand under the heading of linear services. In addition a new tier of regulation will be created introducing basic regulation with less restrictions for non-linear services (where the consumer decides the schedule) such as full VOD services and similar.

The subject of the seminar was the five discussion papers that were released on the 11th July to prompt debate over draft proposals. These draft proposals were a very mixed bag.

Some of the suggestions were highly controversial such as extending the existing broadcasting right of reply to web based services. That one will undoubtedly return again and again to haunt us over the coming months and years.

Yet other proposals seemed entirely reasonable at first glance but presented serious problems when considered in detail. Two proposals of this type go right to the very heart of the TVWF directive. Strictly speaking they are not new proposals as they have been around for a long time, but the appearance of IPTV will have profound effects that will fundamentally alter the balance between them, so they warrant particularly careful consideration here.

There was great support for the idea that trans frontier communications should remain unrestricted, indeed this is such a fundamental point that the directive is named after it (i.e. Television Without Frontiers). There was also support for the idea of continuing to allow nation states their national margin of appreciation when interpreting the TVWF principles over what content was acceptable and where lines should be drawn in their territory, but there wasn�t any real idea of what would happen when you mixed these two principles together in a fully IPTV enabled world, or any appreciation that they are in fact mutually exclusive.

If trans frontier communications are to remain truly open and free and if any person in any country can watch any content from anywhere, what is the point in a national margin of appreciation?

But if every nation needs to enforce its own national margin, then it will be necessary to ring fence each nation with barriers to ensure that content that falls outside the national margin is kept out. Hardly in keeping with open communications and probably entirely impractical as well.
Of course this problem is already with us today, but has been limited for various technological, financial, geographical and political reasons. Whilst Transgression of one national margin into another does occur, it is limited in scope and within politically manageable proportions. But IPTV will bring this issue into sharp focus by removing the technological, financial and geographical obstacles.

So what is planned to resolve this conflict? The European Commission has been working on the revised directive for several years already, so I assumed that people would have considered this point, that some plan would already have been formed and that senior regulators might have been aware of them. So I asked Chris Bone (Head of International Broadcasting at the DCMS) and Tim Suter (Ofcom Partner for Content and Standards) for their views on this matter during question time.

Chris Bone’s response was very extensive and managed to include everything from the Internet Watch Foundation to the potential use of his son�s webcam footage, but he eventually admitted that he really had no idea. Tim Suter avoided the question entirely and simply chose to describe how important the national margin of appreciation was instead.

The massive force of technological progress pushing towards open trans frontier communications would seem to be unstoppable and yet national Governments resolve to maintain control at all costs would appear to be immovable. So there is guaranteed to be tears before bedtime on this issue not to mention a serious risk of creating a number of white elephant regulations for political purposes in the process.

The real problem was highlighted by one of the other speakers at the seminar who said �legislators and regulators are trying to regulate in a world that they don�t understand�. This point was forcibly brought home to me later when John Whittingdale (shadow spokesman for Culture Media And Sport) made the remark that he �hoped we could avoid the television equivalent of radio Caroline* when IPTV arrives�. Unfortunately IPTV plus variable national margins of appreciation will create a similar type of issue for television content and for very similar reasons. If you also consider that the Internet doesn�t stop at Europe, IPTV will make the problems of radio Caroline pale into insignificance.

So there is no answer to this conflict at the moment, but there is certainly the need for us to get involved in the European consultation on these matters.

The subject of television via mobile phones was also brought up towards the end of the seminar but the regulators and legislators who remained were looking a little exasperated by then and the prospect of regulating any such thing with or without multiple margins of appreciation was not as well received as it might have been. Self regulation seemed to be the order of the day here whilst the regulators and legislators beat a hasty retreated to regroup. No doubt further �progress� will be made to allow additional regulatory proposals in this area at some later date.

*For our younger visitors Radio Caroline was a pirate radio station that broadcast to the UK from out side territorial waters in the North sea during the 70�s and 80�s and created a great deal of difficulty for the Government of the day by circumventing UK broadcasting regulation.