In 1996, Eli Noam predicted that "TV Regulation Will Become Telecom Regulation."1 This is happening now in Europe, where there is an inexorable push to extend television regulation to the internet. France recently extended a domestic television tax to cover advertising revenues received by video-sharing platforms, including those outside France. The purpose of the tax is to finance French film production. French courts are considering whether online services that stream television broadcasts in real time should be considered the equivalent of cable operators. At the European level, proposed amendments to the audiovisual media services (AVMS) directive would extend audiovisual regulation to short videos, even if made by non-professionals. And the revised AVMS directive would regulate for the first time video sharing platforms such as Dailymotion and YouTube, who would have to take steps to protect children and contribute to the elimination of hate content. The European Commission is in favor of relying on self and co-regulatory systems for video sharing platforms. But the inclusion of video sharing platforms in the scope of the AVMS directive has prompted some members of the European Parliament to go further, proposing to treat video sharing platforms as the equivalent of broadcasters.
Television regulation is invading the internet space. Is this necessarily a bad thing? To answer, we need to examine why television regulation exists in the first place, and why it has traditionally been separated from internet regulation.
When the internet first emerged, lawmakers' first reaction was to apply television-like rules. In 1997 the United States Supreme Court invalidated this approach, holding that applying television rules to the internet would violate freedom of expression principles.2 The Supreme Court found that the internet is equivalent to a tribune in a public square, where citizens can speak or distribute information freely. The traditional justifications for television regulation – scarcity of frequencies and the "push" character of television broadcasts – are absent from the internet.
European courts have followed this trend, according a high level of protection to expression on the internet.3 Like the U.S. Supreme Court, the French Constitutional Court recognized that television regulation is justified in part because of the scarcity of frequencies.4 The European Court of Human Rights recently accorded a high level of protection to YouTube under freedom of expression principles:
"YouTube is a video-hosting website on which users can upload, view and share videos and is undoubtedly an important means of exercising the freedom to receive and impart information and ideas. In particular, as the applicants rightly noted, political content ignored by the traditional media is often shared via YouTube, thus fostering the emergence of citizen journalism."5
Under this approach, any regulation that interferes with users' freedom to use video sharing platforms would constitute an infringement of freedom of expression, protected by article 10 of the European Convention on Human Rights.
Television was typically bundled with a transmission networke, e.g. a cable network, satellite network and a set-top box. Some television regulations are designed to ensure that the entity that controls the transmission network does not leverage its power to limit viewers' choices. This explains why "must carry", electronic program guide, and conditional access regulations exist. But here, too, the internet is fundamentally different, because the content is not linked to the transmission network. The content is stored remotely, and the user's internet access provider fetches the content for users. Open internet regulations ensure that internet access providers do not interfere with users' choices.
Television regulation was also designed to compensate for the higher-than-normal profits generated by broadcasters thanks to their exclusive broadcasting licenses. Historically broadcasting licenses gave broadcasters a market partially protected from competition. Lawmakers could include a broad range of obligations in the broadcaster's license in exchange for this privilege. Lawmakers required broadcasters to subsidize public goods such as national motion picture production. But as traditional broadcasters' profits now diminish to competitive levels, the obligations to cross-subsidize become more difficult to justify.
Where do internet intermediaries fit in? Laws in most parts of the world recognize that internet intermediaries have a special role in ensuring that the internet remains an open, innovative and cross-border service. Europe's E-Commerce Directive guarantees that internet intermediaries will not be under a duty to monitor content provided by users, and that they will not be liable as publishers for user-provided content as long as they remove illegal content promptly upon notice. The European Open Internet Regulation prohibits internet access providers from influencing the content that users can access via the internet. Internet regulation tries wherever possible to preserve the cross-border character of the internet and favour self-regulatory, rather than command-and-control, solutions for internet intermediaries.
Should Internet intermediaries be subject to television regulation? When speaking of audiovisual regulation, the European Commission rightly focuses on "editorial responsibility." The regulated entity for purposes of television regulation is the entity that selects programs and organizes them into a channel or catalogue. Internet intermediaries, by contrast, do not have editorial responsibility for the content uploaded by users and therefore should not be regulated under television regulation. Internet intermediaries are regulated by the E-Commerce Directive, which imposes "notice and takedown" rules and encourages self-regulatory measures to deal with illegal content. Yet as noted above the European Commission wants to include video sharing platforms – a kind of internet intermediary – in the revised AVMS directive. The Commission is careful to say that video sharing platforms are not providers of audiovisual media services and that the principles of the E-Commerce Directive should continue to apply to them. The Commission wants to encourage video sharing platforms to put in place self- or co-regulatory measures to contribute to protecting viewers from certain kinds of harmful content. But including internet intermediaries in the AVMS directive creates a dangerous precedent. Once internet intermediaries are included in the AVMS directive, it is tempting for lawmakers to pile on additional broadcasting obligations. If internet intermediaries become the enforcers of national broadcast policies, the internet would become a patchwork of nationally-regulated cable networks, losing its open, cross-border status.
So what is the answer? The right approach involves two separate steps. First, we should disconnect from television regulation the question of subsidizing national motion picture production. Asking television broadcasters to subsidize motion picture production is like asking bookstores to co-finance book publishing, or asking supermarkets to invest in new apple orchards. As pointed out by the French Accounting Court,6 the motion picture subsidy rules currently in effect in France lead to competitive distortions and waste. A better approach to subsidies is needed.
Second, when considering measures to protect viewers from harmful content on the internet, we should apply regulatory principles that respect the layered and end-to-end character of the internet. Those principles involve:
- Applying content regulation to the publishers of the content and not to internet intermediaries. For television regulation, this means focusing on the entity that has editorial responsibility for selecting and organizing audiovisual programming into a package or channel;
- Ensuring that internet intermediaries continue not to be liable for violations of content rules committed by users of the service, unless the intermediary fails to remove content upon notice;
- Encouraging internet intermediaries, through self-regulation, to provide tools to users to facilitate compliance with content obligations.
Within the category of entities subject to audiovisual regulation, a distinction should be made between programming that has a large impact on society, and programming whose impact is minimal. For the latter, the full range of television regulation is not justified. A smaller subset of regulation, or a complete exoneration from television regulations, would be appropriate. Does that mean some audiovisual content would be unregulated? Not at all: Internet content that does not fall under television regulation would still be subject to national laws prohibiting hate speech, illegal gambling, child pornography, defamation, copyright infringement, privacy violations, consumer fraud, incitement of terrorism, etc. Where violations of these laws occur, the relevant content can and should be removed or blocked, and mechanisms exist for this throughout Europe.
- Eli Noam predicted this in his insightful 1996 article entitled “TV Regulation Will Become Telecom Regulation”, Financial Times, Oct. 24, 1996.
- Reno v. ACLU, 521 U.S. 844 (1997).
- Yildirim v. Turkey, European Court of Human Rights case n° 3111/10 of March 18, 2013.
- French Constitutional Council decision n° 2009-580 DC of June 10, 2009, par. 12.
- Cengiz v. Turkey, European Court of Human Rights, cases n° 48226/10 and 14027/11, Dec. 1, 2015.
- Cour des Comptes, "Les soutiens à la production cinématographique et audiovisuelle : des changements nécessaires", April 2014, http://www.ccomptes.fr/fr/Publications/Publications/Les-soutiens-a-la-production-cinematographique-et-audiovisuelle-des-changements-necessaires