TV Licence Fee and Online Services

Published on 27 Nov 2008 at 11:58 am. No Comments.
Filed under Misc, Internet, Licence Fees, Television Licensing.

Blog Author: Tony Ballard

Debates about the scope of the television licence fee have something of the quality of those ancient debates attributed to St Thomas Aquinas among others about how many angels can stand or dance on the head of a pin.  Of sometimes stunning irrelevance to the practical world, they nevertheless enable those concerned to engage with the theology of broadcasting, that area of policy debate that has shaped the broadcasting sector since the 1920s.
 
How many viewers, for example, would in practice take advantage of the fact that live Sky transmissions on a mobile phone are TV licence-free?  How many in practice watch only foreign live broadcasts and find themselves unexpectedly liable to buy a licence?  But any informed debate about the principle of the licence fee requires one to engage with the fact that it is part of an over-arching scheme for the funding of the sector.  Television broadcasting is, or at least has been hitherto, funded principally from three sources – the licence fee, advertising and subscription.  Access to those sources is controlled by the BBC Charter and by broadcasting regulation as part of a single scheme.  If it were not, and if the BBC could compete for advertising income, for example, oversupply would undermine the value of advertising air time and would wipe out ITV.

Liability for the licence fee hinges on section 363 of the Communications Act, which makes it an offence to install or use a television receiver without a licence, and Regulation 9 of the Communications (Television Licensing) Regulations, which defines a receiver in terms of apparatus installed or used for the purpose of receiving any television programme service, whether or not it is installed or used for any other purpose.  A television programme service is itself defined by the Act as part of a series of interlinked definitions, anomalies in which are the delight of post-scholastic lawyers, but broadly speaking it covers services which are available for reception by members of the public, an expression which itself is defined so as to include all forms of broadcast programming, including online unless it is on-demand.

It follows that liability for the licence fee can be avoided if the only programmes that a receiver (whether a TV set or a computer) is installed or used to receive are on-demand programmes.  That may yet be difficult to contrive from a practical point of view.  For example, if live BBC transmissions are available via its iPlayer software, a computer on which that software is resident may be taken to be installed or used for the purpose of receiving them – though oddly enough the same would not be true if the software were the Sky equivalent.  But as broadcasters increasingly treat the means of access to their programmes as something apart from their central mission of providing programmes to their viewing public, there is a real risk that the practical problems will be overcome and, by choosing on-demand as their exclusive means of access, users will take that route and licence fee revenue may fall.

There is a related debate about enforcement and the practical difficulties that follow from computers being used as receivers but, just as means to combat p2p file-sharing have been found through pursuing owners via their IP addresses, this is probably capable of solution.

What is more difficult is the licence fee scheme remaining harnessed exclusively to live or linear access to programmes.  What purpose is served by limiting it in this way?  As traditional broadcasting moves into the online world, should not the licence fee scheme be adapted to include provision of programming by other means?  The questions need to be considered not as parochial questions about the BBC’s finances but instead as affecting the scheme of management of the whole sector.  How is a diminution in the BBC’s revenues likely to affect the other sources of income available to broadcasting generally?

There is an opportunity for this debate to be linked to the implementation of the Audiovisual Media Services Directive which will extend broadcasting-style regulation to on-demand programming whose form and content is comparable to television broadcasting.  If that is what broadcasters are now providing alongside their linear channels, might not the definition of a television programme service for the purposes of the Regulations be conveniently adapted to include it?
 

On-demand audiovisual media services: transposing the requirements of the AVMS Directive

Published on 8 Oct 2008 at 12:09 pm. No Comments.
Filed under On-demand, Broadcasting, AVMS Directive.

Blog Author: Tony Ballard

When the Communications Act was enacted in 2003, on-demand services on the internet and elsewhere ceased to be regulated under the Broadcasting Acts.  Content regulation was withdrawn.   It was sufficient to comply with the law of the land (such as the Obscene Publications Act and the laws of defamation). 

This new freedom is, however, all too brief and is to be abolished for every on-demand audiovisual media service (AVMS) on 19 December 2009 when the UK implements the AVMS Directive.  In return, service providers are to get the benefits of a single market (which in fact they already had under the e-Commerce Directive) and conventional linear broadcasters are to get some relaxation of advertising rules. 

It is hard to see what is in this for the on-demand AVMS service provider who gets an additional set of regulatory obligations and little or any benefit.  Few will clamour to be regulated.  Most will want to know that they are not caught by the new rules.

So what is an on-demand AVMS?  The answer lies in the Directive, where it is defined by means of a series of interlocking definitions in Article 1 and is “explained” in the Recitals.

Officials at DCMS, which is the Government department responsible for transposing the Directive into UK law, have on a number of occasions proposed a set of tests or criteria to be used in identifying such a service.   They say that a service which does not pass their tests is not an on-demand AVMS.  Each time, however, the criteria have been slightly different so it is plainly not an easy task.  Basically they say it is a video-on-demand (VOD) service, which is helpful because it links something of which we all have a broadly intuitive picture to the requirement in the Directive that the service consist principally of programmes of the kind seen on television and which people expect to be regulated, such as cinema films, films and series made for television and the like.  But of course that is just a helpful approximation.  When it comes to transposing the definition into our laws, it is not so simple, especially as all those interlocking definitions in the Directive have no counterpart in UK law.  So how should it be done?  How should on-demand AVMSs be defined for purposes of UK law?

The draftsman is currently hamstrung by definitions in the Act which are incompatible with the Directive.  “Broadcast” in the Act means broadcast by wireless telegraphy whilst “television broadcast” in the Directive is technology-neutral and is defined in terms of simultaneous viewing on the basis of a programme schedule, which is quite different.

The nearest the Act gets to what the Directive means by “television broadcast” is the expression “available for reception by members of the public” (in section 361).  This is fine as far as it goes but, as a surrogate for “television broadcast”, it has to exclude on-demand.  This it does by excluding on-demand services which satisfy three conditions, the main one being that the service is confined to the provision of a “facility” to select and receive material. 

Now DCMS aims to transpose the requirements of the new Directive by building on this by defining on-demand AVMSs in terms of a facility.  This would lead the draftsman into the dense undergrowth since it is not intuitively obvious that the expression “available for reception by members of the public” equates with simultaneous viewing on the basis of a programme schedule or that an on-demand service is not so available.  And there is nothing in the Directive about a facility.

Until the legislation is comprehensively revised we are probably stuck with “available for reception by members of the public” as a legislative substitute for the broader European notion of broadcasting but in the meantime it would be really helpful for all concerned if the draftsman resisted the temptation to rewrite the definition in the Directive and said, simply, that an on-demand programme service for purposes of UK law is on-demand AVMS within the meaning of the AVMS Directive.  It is really not necessary to say any more.  Any doubts about what falls within the scope of the Directive would then be resolved by reference to the Directive itself. 

Perhaps it doesn’t matter how the service is defined in the UK since the courts here must construe national implementing legislation in conformity with and to achieve the same result as that which is intended by the Directive.  If they have to decide whether a particular on-demand service is within scope, they are unlikely to bother with the transposition but will look at the Directive itself.  But then what useful function would such a novel UK definition fulfil?  It is hard to say.  But it is easy to see that it might mislead.  Surely the better way forward is simply to say that what is regulated is an on-demand AVMS within the meaning of the AVMS Directive, freeing up DCMS resources to explain informally what they think the Directive means rather than devising and incorporating into our laws a definition which is ultimately just an ingenious gloss on the Directive and might be wrong?

 

Government launches new UK council for child internet safety

Published on 4 Oct 2008 at 11:45 am. No Comments.
Filed under Internet.

Blog Author: Cate Haywood

On 29 September 2008, the Government set up the UK Council for Child Internet Safety (UKCCIS), consisting of over 100 organisations from the public and private sector who will report to the Prime Minister and will help deliver the recommendations made in Dr Tanya Byron’s report ‘Safer Children in a Digital World’. 

The UKCCIS will aim to tackle problems such as online bullying, pornography, violent video games and self-harm websites. 

Gordon Brown, Home Secretary Jacqui Smith and the children’s minister Ed Balls attended the launch of the UKCCIS at the Science Museum in London in order to give their support to the initiative. 

Speaking at the event, Gordon Brown said:

“the internet provides our children with a world of entertainment, of opportunity and knowledge, a world that is quite literally at their fingertips, just the click of a mouse away…but just as we would not allow them to go out unsupervised in playgrounds or in youth clubs or in swimming pools, so we must put in place the measures we need to keep our children safe online.”

The UKCCIS will play a major part in designing a child internet strategy which the Government says will be published early next year.  This strategy will aim to:  

  • Establish a public awareness child internet safety campaign
  • Provide specific measures to protect children and young people, such as taking down illegal internet sites
  • Promote responsible advertising to children online
  • Establish voluntary codes of practice for user-generated content sites, making sites commit to take down inappropriate content within a given time.

The UKCCIS have an opportunity to shape the future of the internet in the UK and it will be interesting to see how active a role they play, what guidance they produce and how readily this is accepted by the Government and industry. 

Having withdrawn from most formal regulation of content on the internet, the Government is promoting informal, self-regulatory measures to address the problems that have been identified.  At the same time, but separately, it is devising legislative measures to regulate video on demand as required by the Audiovisual Media Services Directive.  Sooner or later there will be pressure for these separate initiatives to converge.  If they do, it is likely that proposals for legislation would be hard to resist. 

For more information on the Byron Report and the Government’s policy in relation to child internet safety, see the following article by Cate Haywood:  Click here for article