Our series continues with Professor Tom Gibbons, who explores new ways of regulating content delivery organisers, taking account of the challenges to the integrity of the historical regulatory categories brought about by the newer forms of audiovisual content delivery over the internet.

Regulatory options

Tom Gibbons is a Professor of Law at the University of Manchester. He was Dean and Head of the School of Law from 2000 to 2003. His main research interests are in media and communications law and regulation. He is a founding editor of the Journal of Media Law, and his publications include Regulating the Media (Sweet & Maxwell, 1998) and Audiovisual Regulation under Pressure: Comparative Cases from North America and Europe (with Peter Humphreys, Routledge, 2012).

Does audiovisual content falling outside the regulatory net create problems?

European Union regulation of audiovisual content seeks to protect a number of core media policy values. They include human dignity, child protection, European content, pluralism and diversity, and the public service objectives of informing, educating and entertaining audiences as both citizens and consumers.

The regulatory framework supports these values through four key requirements of Member States: they must all comply with a set of minimum content obligations; they must take responsibility for implementing and enforcing those obligations in respect of media companies established in their jurisdiction; those companies are consequently free to send their content to any other Member State; and the receiving Member State must consequently accept it without imposing additional regulatory conditions.

Where media content is directly sourced from outside this regulatory net (from “external” or “extra-EU” providers), there is a risk that the balance of these reciprocal requirements will be upset. One potential problem is that the EU’s core media values will be subverted. Another is that EU based companies will find themselves disadvantaged in competing for EU audiences against extra-EU providers.

Pragmatically, none of this is yet a pressing issue, because the amount of directly sourced extra-EU content that we are talking about is relatively small at present, and because most extra-EU providers find it commercially advantageous to establish an operational base within the EU. Nevertheless, it is important to think about solutions to the problems, because the regulatory framework needs to have the capacity to deal with them if they start to escalate.

Would it help to establish regulatory oversight over certain kinds of gateways or platforms that organise the delivery of audiovisual content?

Certainly, because the current regulatory net is not woven closely enough – it is too porous – to capture newer forms of audiovisual content delivery that are based on the internet.

Historically, the EU framework has made a distinction between media content and its delivery, with one kind of regulatory regime dealing with television-like services, and another dealing with the infrastructure for conveying the signal (whether through broadcasting or telecommunications). Both run alongside a third regime directed at the commercial use of the internet – e-commerce.

New kinds of service and delivery do not respect those differences, however. Devices for reception of content include traditional television sets but also “connected TVs”, as well as mobile phones and computers - or tablet-based web browsers. Content facilities include traditional television programming, but also on-demand services, social media, dedicated apps, and also “over-the-top” (OTT) services using the internet, rather than dedicated broadcasting or telecommunications networks, to deliver material directly.

These developments challenge the integrity of the historical categories, creating technical overlaps and inconsistencies in definitions and in implementation. But they also introduce confusion in media policy, because they prevent different degrees and kinds of responsibility to be distinguished properly when making content available to users.  

In this context, the crucial element, in the chain from the creation of content to its reception by users, is the nature of the package that is received. There are various ways to describe the main player putting together such a package: aggregator, bundler, content gateway, manager, or editor. “Editor” actually works very well, but it has become associated with traditional programming and does not capture the new approaches to assembling material, that go beyond programming and film, and include search engines, price comparison websites, and e-commerce more generally.

In relation to media policy, the main focus is on kinds of packaging activity which are directed at satisfying the main reasons why users engage with audiovisual material, which is to be informed, educated and entertained.

For audiovisual services, therefore, the key target of regulatory oversight should be the undertaking which has final responsibility for supplying the bundle of content that is delivered to the consumer for those purposes – what may be described as the “audiovisual content delivery organiser". That activity is different from other aspects of media use, such as enabling transactions between consumer and seller, ensuring access by all end-users, facilitating interconnectivity between different ways of receiving material, and preserving system integrity and system security.

While these are not insignificant issues, they are ancillary to public interest requirements that audiovisual material should reflect the core media policy values that I mentioned earlier. This approach implies that the ideal situation would be one where the various EU regulatory frameworks are rationalised. Whatever the audiovisual content and whatever means are used to transport it, it is the organisation which brings everything together – to target the ultimate users – that should be held responsible.

In which cases is it justified to limit regulation to ‘significant’ players (in terms of market share or impact on society)?

This question refers to concerns that, because new kinds of content delivery organisers are using methods that apply to both non-audiovisual and audiovisual content, any changes intended to apply to them will draw too many areas of previously unregulated activity, notably on the internet, into the regulatory net.

Over-regulation and over-inclusiveness may be considered bad in themselves, as well as possibly stifling innovation and experimentation. And it may be wondered why audiovisual material is being singled out for more regulation when the general trend in commercial life is towards liberalisation. Hence, there are suggestions to limit the scope of any reforms by reference to the “significance” of companies involved.

Competition law already uses this idea to limit its controls over market power, although it is not self-defining and its interpretation is often contested. Significance of social impact is even more difficult to quantify, but there are well established analogies in measuring media pluralism. So limiting the regulation of new forms of audiovisual media to “significant” players could be made to work.

But the real issue is whether any exceptions should be made for impact that is relatively insignificant. If public interest values are thought to justify regulatory oversight, they should apply to all kinds of service, regardless of market share or some other criterion of significance. However, focusing regulation on content delivery organisers would actually limit the scope of regulation in a different way, by narrowing the range of functions to which audiovisual policy would apply.