January/February 2006

Europe is about to extend its rules for television broadcasting to include programmes delivered over the internet but the change will have unwanted implications for telecommunications and internet service providers, says Mark Gracey.

The proliferation of audiovisual content over the internet has raised many concerns about content control, specifically in relation to children's access to inappropriate material. Over the past two years, this issue has been discussed at the European Commission which is about to revise its Television Without Frontiers directive. The new directive will take into account technological developments in the audiovisual market, with specific changes relating to the digital world of Internet audiovisual content. The revised directive is expected early 2006.

With the boundaries of television and internet content merging, it is clear why the Commission is reviewing the regulatory framework. However, the revised directive has raised some concerns on how controlling broadcasts on the internet will be defined and how it will impact the online industry. One major issue is that internet hosting providers are being grouped together with traditional broadcasters - yet these two sectors couldn't be more different. 

Defining audiovisual content online

Audiovisual content on the internet has various origins. Content can be provided by traditional broadcasters like the BBC or Channel 4, commercial organisations such as NTL or AOL, which provide video on demand, and private individuals who provide content on their websites hosted by ISPs and other web hosting companies.

In view of this, the directive will split the content covered by the Television Without Frontiers Directive into linear and non-linear content. Non-linear content will be content provided on demand rather than according to a schedule.

Although the issues of online content need consideration, particularly with a view to controlling content which is not appropriate for children, it is difficult to see how extending the TVWF directive to include online audiovisual content will serve any purpose other than to create regulatory burden and loss of growth and revenue for hosting providers.

In the run up to the launch of the directive, there has never been any indication of whether the intention is to regulate just those traditional broadcasters which are now choosing to offer their content via the internet or to address all audiovisual content online. If it is the former, it will be a considerable challenge to come up with a definition that does not also include businesses using audio visual content on their websites or other websites which carry audiovisual content, but are not broadcasters in the traditional sense.

One attempt at a distinction was to suggest it would only apply to commercial content, but clarifying what would be considered commercial presents further issues. For example, will private individuals who provide audiovisual content on their own personal websites and benefit from "click through" profits or affiliation programmes with online stores such as Amazon be considered as commercial operations?

It is imperative that the Commission gets this right. It must be made clear what it intends to regulate and definitions need to be succinct enough so as not to effect non-"broadcasting" websites.

Liability for hosting

The current regulatory approach to the internet is one of self regulation, as set out by the Commission's E-Commerce directive. The key area is the limitation of liability for intermediaries and it is essential that these rules are not displaced by the plans for the TVWF directive.

The light approach the E-Commerce directive provides means that intermediaries such as web hosting companies accept the role they have to play in dealing with unlawful - criminal or civil - material that is available online. It has enabled the establishment of hotlines, such as the one run by the Internet Watch Foundation in the UK, to deal with illegal images of children as well as the development of internet tools aimed at protecting the vulnerable and preventing access to offensive - but legal - content.

The E-Commerce directive has fostered an environment in which unlawful material is removed from servers once the hosting provider has "actual knowledge" of the infringement.

Extending the TVWF directive to include internet audiovisual content will confuse the boundaries between content which is unlawful and content which is lawful but not acceptable. It will mean that hosting providers will have to make more decisions about content hosted on their servers over which they have no editorial control.

Unlike traditional broadcasters that can choose what programmes are broadcast and at what time, a web hosting provider has no direct control. Although the hosting provider may enforce its own ethics via acceptable use policies or terms of service, extending the directive will mean that the hosting provider will have to take down material which may not be in breach of the law or its policies but is in breach of the terms set out for broadcasting audiovisual content.

This, in itself, will be regulatory nightmare for the hosting provider which would have to make decisions about whether content is or is not suitable and the customer impact that would have: take the material down and lose customers, or don't take it down and face the implied liability.

Furthermore, in some areas like "right of reply", it is difficult to see how the regulations can be enforced on the internet. Will it be left to the hosting provider to make sure its customers follow the regulation? What if the content provider cannot be contacted or is unwilling to comply?

Notice and takedown, enforcement of the regulations, and their applicability to internet audiovisual content are all issues that hosting providers will need to consider carefully. In addition, it is difficult to see how increasing the regulatory burden on hosting and content providers will meet the i2010 criteria of providing "economic and legal certainty". If it is not careful, stifle new services and lead to the displacement of European audiovisual content as a result of the regulations - surely not the intention. 

Regulating internet content

If the European Commission regulates audiovisual content online then it is imperative that the unintended impact it will have on hosting providers is taken into consideration.

Although the E-Commerce directive will provide the necessary limitation for liability for transmission - "mere conduit" - and hosting, by enforcing regulations against content providers there will still be an implied liability for the hosting providers. These companies will have to make sure they enforce the provisions of the TVWF directive against their customers if they are put on notice of infringing content.

The European Commission should therefore consider the implications of extending the directive so that the responsibility for online content falls to the content providers and not the hosting providers. This will mean that, for internet content, it will need to be made clear that a hosting provider will not be held at all responsible for infringing content and that all liabilities will lie with the content provider.

The only alternative will be to put in place a clear regime for notice and takedown which will enable the hosting providers to deal with complaints by following strict rules set out by the commission. This will provide the protection that the hosting providers will need from liability whilst upholding the objectives of the TVWF directive.

Making hosting providers liable for online audiovisual content, or removing that liability and making content providers accountable for their content, will not stop content providers moving to less regulated areas of the world. This will impact hosting providers and the economy of Europe.

Alternative methods of controlling content

In Thus's opinion, hosting providers should not be held responsible for online content. It is up to the content providers to provide legal content on the internet.

The best way to protect the vulnerable from unsuitable material is to use and develop existing tools that are available for Internet users: filtering software, content labelling and education and awareness.

If Internet users are made aware of the issues their children may face, or the types of content that are available online that they may not wish to view, they can take control of their own internet experience. Those that require filtering for their computers can be made aware of the tools available or indeed Internet services which provide a safer environment.

This education and awareness can be achieved in a number of ways. In the UK, initiatives from the government, children's charities and even industry have meant greater awareness amongst children and their parents of the dangers online, while continuing to advocate the advantages of internet access in schools and at home. Further UK initiatives are looking at ways of setting standards and kite marks for filtering software to further inform parents about what to look for and the benefits it will bring.

Minimise liability

It is probably not the European Commission's intention to regulate every producer of internet audiovisual content. However, it has never been made clear that this really is the case. There is some implication by limiting the regulation to commercial content, but this is not clear enough and not so obviously regulated.

We believe that with the regulation of all audiovisual content, it is essential to limit the burden on hosting providers and not to drive content providers outside Europe. Hosting provider's liability should be minimised as much as possible, preferably to the point that the regulations only apply to the content providers with no implied liability for the hosting intermediary.

If this is not possible, then a formal notice and takedown regime is essential to ensure that the liability of hosting providers is strictly limited and that it is clear to content providers what is expected of them.

At this point we do not know the outcome on the TVWF regulation; therefore we cannot judge what will be caught and how it will impact internet hosting providers. All we do know is that clear definitions will need to be put in place if all commercial content is to be regulated.

At this stage, we can't say what will be "caught" or what the impact upon internet hosting providers will be. However, we do know that if all commercial content is to be regulated, clear and succinct definitions are essential to ensure unnecessary, or business limiting, restrictions are avoided. GTB 

Mark Gracey is internet content regulation manager at UK telecoms operator Thus.