Bird & Bird partner Graham Smith has an interesting piece in the Times (here) on the AVMS Directive. He writes in part:

‘Broadcast content regulation is an anomalous relic of the old days of spectrum scarcity. If convergence is thought to demand platform neutrality in content regulation, it does not automatically follow that it should be achieved by extending the remit of Ofcom. On the contrary, it can be achieved by rolling back broadcast regulation and subjecting the freed-up content only to the general law. If that is not palatable, the answer is not to extend broadcast regulation into areas in which it has no business. It is to refrain from seeking full platform neutrality in content regulation.

It is true that, thanks to convergence, the dividing line between broadcast and non-broadcast video is increasingly arbitrary. But rather than make that the excuse for extending broadcast regulation, it is better to live with it until the day when broadcast content regulation finally withers away, the victim of its own irrelevance.’

I generally agree with Smiths views, with two added considerations:

1. I’ve never felt that the number of firms affected by those portions of the AVMS Directive was that great. Whenever I’ve asked people to give me examples of firms whose conduct would be covered by the Directive, people tend to scratch their heads. I’m not sure that says more about the state of the U.K. new media industry or the scope of the Directive. Irony: perhaps the only U.K. new media firm covered by the AVMS Directive will be Ofcom’s PSP!

2. I would really like to see a lawyer like Graham Smith write on the issue of jurisdiction. How would the AVMS Directive regulate a firm that transacts business in the U.S. (where even hate speech laws do not apply) but whose website is viewable in the U.K.? Would it empower the U.K. to enact into law some form of firewall to block non-compliant websites? Or would we all supposed to self-regulate by not visiting the site? I suppose this is my way of saying the AVMS Directive might be as irrelevant as Smith thinks broadcast content regulation should be.

Will it break down like this?: (i) some large new media audiovisual media service providers (help shape and) live with the new regulations because they are similar to the other regulations that apply to their broadcast activities or the regulations are otherwise not too onerous for a large, socially-responsible firm; (ii) some — probably less than a handful — roguish firms structure their operations to move offshore, outside the reach of the EU regulation; (iii) firms already outside the reach of EU regulation continue business as usual.

So will the ultimate outcome be that the only firms that comply with the new media provisions of the AVMS Directive are those that would have already conducted themselves in a similar manner?