Historically, content has been delivered by different service providers using distinct networks (
e.g., television from terrestrial and satellite broadcasting, and telephone through telephone networks).
1 With digitalization, content formerly dedicated to specific networks now can be conveyed on different infrastructures and delivery platforms. This poses a potential conflict in regulation as different standards of content regulation are applied to telephony, sound and television broadcasting, print media and the Internet. With convergence, policies may need to be changed to achieve the common social objectives of promoting and protecting cultural traditions, public service, and protecting citizens from harmful material across all types of networks and delivery platforms.
While convergence poses challenges to the regulatory framework, it is recognized that differences in the expectations, context and intrusiveness of different services exist, and could justify the differentiation in regulatory approaches.2 Therefore, while Internet content remains mostly unregulated, regulation requiring a minimum level of domestic content on television is still a feature of broadcasting regulation and licensing in many countries. For instance, the 2002 National Trade Estimate Report on Foreign Trade Barriers by the U.S. Trade Representative states that approximately 30 trade partners have local content restrictions in the audio-visual sector.3
Additionally, an ITU survey regarding broadcasting and Internet content demonstrates that broadcasting content is more highly regulated than Internet content in the majority of countries. Of the approximately 125 countries surveyed by the ITU, almost all of the countries had some form of regulatory entity responsible for broadcasting content, except for Bahrain, Nicaragua, Paraguay, Peru, St. Vincent and the Grenadines, and Spain. On the other hand, the majority of the countries surveyed had no regulatory entity responsible for Internet content. Of the regions surveyed, Internet content seems to be more heavily regulated in the Asia Pacific region and Europe and least regulated in the Americas and Africa.4
Some of the issues regulators face regarding content regulation are:5
- Applicability of public service provisions;
- Cross media ownership, cross sector ownership and restriction on the size of individual broadcasters;
- Cultural diversity, local content quotas and local production of content;
- Programming standards associated with accuracy and impartiality in the reporting of new and current affairs;
- Intellectual property rights;
- Role and means of supporting public broadcasting; and
- Programming standards associated with decency, censorship and freedom of speech.
(a) Broadcasting Content
Due to the role of broadcast media in defining the cultural identity of a country, one of the main issues in regulating broadcasting is the quota on national content. Two EU directives, the Framework Directive6 and the Television Without Frontiers Directive7 have redefined broadcasting in the region. In particular, the Directives separate regulation of content from the regulation of transmission, place specific limits on the regulation of transmission and permit EU member countries to regulate content in order to achieve social objectives.8 The Television Without Frontiers Directive stipulates that where practicable and by appropriate means, broadcasters should reserve a majority of their transmission time for European content (excluding time appointed to news, sports, games, advertising and teletext services).9 In addition, broadcasters should reserve at least 10% of their transmission time or program budget for European works created by producers who are independent broadcasters.10
In Australia, the Australian Content Standard requires all commercial free-to-air television licensees to broadcast an annual minimum transmission quota of 55 per cent Australian programming between 6 a.m. and midnight. There are also specific minimum annual sub-quotas for Australian adult drama, documentaries and children’s programs.11
(b) Internet Content
In many countries, ISPs and Internet data centers are not required to review, monitor or classify the content that they host, and are therefore not held liable for the transmission of prohibited content unless they have specific knowledge of the illegal content or fail to report and take corrective action. This policy results from the rationale that, like traditional telecommunications carriers, ISPs are merely a conduit that passively transmit data and therefore are not responsible for the nature, or character of that data. Thus, it would be unjust, unreasonable and impractical to expect an ISP to monitor content in order to safeguard against illegal use or criminal activity.
The EU Directive on Electronic Commerce follows this approach. ISPs have no liability when the service provided is a mere transmission or access to a communication network, to the extent that the ISP cannot select or modify the content of the transmission, or select the receiver of the transmission. There is no liability on the ISP when the service is an automatic, intermediate or temporary storage of data (caching) so long as the provider does not modify the information, complies with conditions on access, and acts promptly to remove or disable access to the information when required. Furthermore, the ISP is not liable when the service offered consists merely of the storage of information, provided that the ISP does not have knowledge of illegal activities or information, or upon being aware, acts promptly to remove or disable access to the information.12
Japan’s ISP Liability Law13 follows an approach similar to the EU, but imposes a stricter standard on ISPs. In Japan, ISPs are not generally liable for damages caused by infringement of laws as a result of the transmission of information via the Internet. They may be held liable, however, if they were either aware of the infringement or were aware of the information and should have known of the infringement, and could technically prevent the transmission of the information. Any person whose right is allegedly infringed by transmission of the information via the Internet can request that the ISP disclose the person who transmitted the information, and the ISP may disclose such information if the right of the requesting person has been obviously infringed and the requesting person has legitimate reason to be entitled to such disclosure.
Because an ISP provides access to the Internet, some argue that it is in the best position to take action against illegal activity conducted over the Internet. As a result, in some countries ISPs have been given a degree of responsibility over content regulation under certain circumstances. Although a country may not have specific legislation regarding Internet content, this does not mean that ISPs are immune from liability for content handled under their networks under other laws. For example, in Mexico, ISPs may be held responsible under the Federal Criminal Code which provides that any person who publishes, by any means, exposes or distributes obscene books, writings, images or objects commits a crime against public morality and good custom, and can be sanctioned with imprisonment and/or fines. ISPs are not deemed responsible for the distribution of the prohibited material under the Federal Criminal Code based on the provision of Internet access or for providing shared, dedicated, or co-located hosting because they are not obliged to know the content of the web sites that they host. However, ISPs may be responsible for distribution of prohibited content when providing hosting services, where they collaborate in the production and development of the content with the author of the website and consciously host the website with specific knowledge of its contents. 14
As a result of the growing international concern for cyber-crimes, such as copyright infringement, computer-related fraud, child pornography and hacking, 31 countries, including members of the Council of Europe, Canada, Japan, South Africa and the United States signed the Convention on Cyber-crime, an international treaty. The convention is designed to: (1) harmonize domestic criminal law in the area of cyber-crime; (2) provide for domestic criminal procedural law powers necessary for the investigation and prosecution of such offenses as well as other offenses committed by means of a computer system or evidence in relation to which is in electronic form; and (3) establish a fast and effective regime of international cooperation.15 In addition to streamlining definitions and civil and criminal penalties for cyber-crimes, the Convention also gives signatory countries common powers to search and intercept the Internet communications of suspected terrorists.
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Box 4-6: Need for Regulation of Cyber-crimes
“The fast developments in the field of information technology have a direct bearing on all sections of modern society. The integration of telecommunication and information systems, enabling storage and transmission, regardless of distance, of all kinds of communication opens a whole range of new possibilities. These developments were boosted by the emergence of information super-highways and networks, including the Internet, through which virtually anybody will be able to have access to any electronic information service irrespective of where in the world he is located. By connecting to communication and information services users create a kind of common space, called “cyber-space,” which is used for legitimate purposes but may also be the subject of misuse. These “cyber-space offenses” are either committed against the integrity, availability, and confidentiality of computer systems and telecommunication networks or they consist of the use of such networks or their services to commit traditional offense. The transborder character of such offenses, e.g., when committed through the Internet, is in conflict with the territoriality of national law enforcement authorities.”
Source: Council of Europe, Convention on Cyber-crime, Explanatory Report. |
ENDNOTES
1 Nicholas Higham, Content Regulation, in Telecommunications Law and Regulation, (Jan Walden and John Angel eds., 2005), at 408.
2 Id. at 419-420.
3 Ivan Bernier, Content regulation in the audio-visual sector and the WTO, in The WTO and Global Convergence in Telecommunications and Audio-Visual Services (Damien Geradin and David Luff eds., 2004) at 217.
4 ITU World Telecommunication Regulatory Database 2005, ITU Survey on Broadcasting Content Regulatory Authority and Internet Content Regulatory Authority.
5 The Implications for Convergence for Regulation of Electronic Communications, OECD Working Party on Telecommunication and Information Services Policies, 12 July 2004.
6 European Union Directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive).
7 European Union Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in member states concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of 19 June 1997 (Television Without Frontiers Directive). On December 13, 2005, the European Council submitted a proposal to modernize the Television without Frontiers Directive, which will be decided by the European Parliament and the Council. To keep up with convergence, technological progress and market developments, the proposal seeks to harmonize the rules in the Directive on the basis of the “country of origin” principle (which enhances legal certainty by ensuring that only one EU Member State – the country of origin – will have jurisdiction over any given media service provider) for all audiovisual media content regardless of technology. The proposal also distinguishes between “linear services” (e.g., scheduled broadcasting via traditional television, the Internet, or mobile phones which “pushes” content to viewers), and “non-linear” services (e.g., video-on-demand, non-scheduled broadcasting, and web-based news which the viewer “pulls” from a network). Generally, linear services would be subject to stricter rules, while non-linear services would be subject only to a minimum set of principles. See
http://europa.eu.int/information_society/newsroom/cf/itemlongdetail.cfm?item_id=2343.
8 OECD Communications Outlook 2005, Chapter 7, at 203.
9 Television Without Frontiers Directive, Article 4.
10 Id. Article 5.
11 Broadcasting Services (Australian Content) Standard 1999, July 2004.
12 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce).
13 Law Concerning Limitation of Damages to Telecommunications Service Provider and Disclosure of Sender Information (ISP Liability Law), 22 November 2001.
14 Memorandum by Kendra Medina Chávez, Ríos Ferrer y Guillén-Llarena, S.C. Abogados, 16 February 2001.
15 Council of Europe, Convention on Cyber-crime, ETS 185, signed 23 November 2001.