Parliamentary Information Technology Committee

REGULATORY MISSION IMPOSSIBLE?

With the boundaries between the internet, television and telecommunications becoming ever more blurred, can governments ever hope to keep pace with regulating what is produced?

The convergence of information and communications technologies is a huge challenge facing policymakers over the next five to 10 years. People can already watch TV programmes and films on their home computers; access video content on their mobile phones; use the internet to make voice telephone calls; and access the internet on their TVs and computer game consoles. Many devices and technologies are essentially becoming interchangeable.

In the short term, this has given rise to anomalies when it comes to regulation. For example, in the UK providers of broadcast services are regulated in a very different way to providers of internet services. This becomes troublesome when the internet is used to distribute regulated services, such as TV and radio content.

The old approach, which marked out boundaries for regulators by the distribution technology — often referred to as the delivery platform — is increasingly out of step with reality.

To add further complexity, regulators in the different industry sectors claim authority over types of internet content. For example, the Financial Services Authority (FSA) regulates banking services delivered online as well as those in the High Street.

The overall picture is of converging technologies drawing many different regulatory bodies and legal requirements along in their wake.

This paper highlights the challenges that confront our policymakers if converging regulators are to help us maximise the benefits of converging technologies, rather than stifle their vast economic and social potential.

The policy picture

Before 2003 communications and broadcasting technologies were overseen by five separate regulatory bodies: Oftel for telecoms; the Independent Television Commission; the Radio Authority; the Radiocommunications Agency; and the Broadcasting Standards Committee.

These bodies were all replaced by Ofcom, a new ‘super-regulator’ with powers set out in the Communications Act 2003 (http://fastlink.headstar.com/comms1) and a scope that includes TV, radio, telecoms and wireless services. Ofcom recently released a draft plan for consultation that will shape its priorities over the three years to 2010.

The plan sets out proposals for how Ofcom will discharge a wide range of duties, including licensing the electromagnetic spectrum; ensuring availability of electronic services throughout the UK; overseeing the content and availability of TV and radio services; and protecting audiences against offensive or harmful material, unfair treatment and invasions of privacy (see: http://fastlink.headstar.com/ofcom8).

The European Commission (EC) aims to harmonise regulation of digital technologies in member states with policy instruments known as eEurope Action Plans, the most recent of which is i2010 (www.europa.eu.int/i2010).

As part of i2010, the commission will extend ‘TV Without Frontiers’ (TVWF), the EU policy framework for broadcast TV, to interactive digital services such as the internet. This is controversial, because broadcast TV is the most heavily regulated of all digital services in the EU.

“It could lead to absurdities such as a video blog with some Google ads being treated the same as ITV,” says Intellect, the industry body for UK high-tech business.

To avoid this problem, the Audio Visual Media Services (AVMS) directive attempts to formulate a new regulatory approach based on the way services are structured, rather than on their content or delivery platform.

According to AVMS, the difference between ITV and the video blogger is that the former provides a ‘linear’ service, pushing TV or video content to users on a timetabled basis, while the latter is ‘non-linear’, playing short clips in response to user requests.

Protecting the public

Ofcom’s role in protecting the public interest includes responding to complaints from the public about content that is considered offensive.

Apart from the BBC, which has a Board of Governors to consider complaints from the public, Ofcom is empowered to intervene directly with broadcasters, depending on the results of a public-interest test and consideration of broadcasters’ right to freedom of expression under Article 10 of the European Convention on Human Rights.

However, Ofcom was not intended to have regulatory powers over the internet content or online service providers. Accordingly, the regulator’s strategy for dealing with problematic content focuses on raising public awareness of problem areas and encouraging self-regulation in the industry.

Examples include the ‘Get Safe Online’ initiative, whose backers include BT, Microsoft and High Street banks as well as the government, providing the public with expert advice on a wide range of

safety and security issues.

Some, but not all, Internet Service Providers (ISPs) implement filtering technology that prevents users accessing sites containing child pornography. However, such initiatives may fall foul of new EU regulations (http://fastlink.headstar.com/acquis1) designed to simplify the rights of consumers online. Under these proposals, it is possible that ISPs using filters could be deemed responsible for all the content they deliver, dissuading them from filtering at all. Many of the factors that make the internet such a valuable communications tool, such as its huge reach and its interactivity, also bring opportunities for exploitation by criminals.

These range from tricking people into making online payments or revealing bank details, attacking their computers with software, simply overloading them with junk mail known as ‘spam’ or trading

in pirated software and other goods.

Many of these activities are now proscribed or restricted by UK or EU law, but because they can be launched from almost anywhere in the world bringing a prosecution can be difficult.

Gangs involved in cybercrime may also be spread across many different countries, and so law enforcement agencies must combine increased vigilance in their own countries while working effectively with agencies abroad.

There is some divergence in EU and US approaches to achieving this, the EU tending to emphasise the need for new regulations and cross-boarder agreements while the US favours enforcing existing laws and regulations more vigorously.

Consumer rights

Citizens seeking guidance on their consumer rights face a bewildering array of regulatory bodies and other organisations to approach, with different bodies in each sector. There may also be different approaches to dispute resolution.

In financial services and electronic communications, independent ombudsmen have been appointed to handle complaints which a consumer has been unable to resolve with the supplier or service provider. Ombudsmen aim to investigate and resolve, determine or make recommendations on those complaints which fall within their jurisdiction. Those needing help with electronic services in the UK have three main sources of help: Ofcom, the Office of the Telecommunications Ombudsman; Otelo (www.otelo.org.uk), an independent dispute-resolution service; and the Communications and Internet Services Adjudication Scheme (http://www.cisas.org.uk/) is also available.

In an attempt to simplify matters the former Department of Trade and Industry (DTI) proposed that a ‘super consumer watchdog’ be created that would absorb the National Consumer Council and parts of existing bodies such as Ofcom. The DTI plan has three elements: Consumer Direct, a single point of contact to provide consumers with information and advice for all sectors; new ombudsman schemes, where not already in existence; and a body provisionally called Consumer

Voice, which would bring together the National Consumer Council and other consumer bodies to represent the interests of consumers in all markets.

As part of its plan, the DTI held a public consultation in 2006 (see: http://fastlink.headstar.com/dti3). Consumer Voice is expected to be established in November 2007 and responsibilities transferred to it between December 2007 and January 2009.

Reproduced by kind permission of the Parliamentary Information Technology Committee (PITCOM)

Report commissioned by PITCOM from Headstar

The Parliamentary Information Technology Committee (PITCOM) is an Associate Parliamentary Group included in the House of Commons list of approved all-party groups. It was formed in January 1981 by members of both Houses of Parliament and members of the computing, communications and information-handling industries. Its purpose is:

• To promote among members of both Houses of Parliament an informed awareness of the social and economic impact of information and communication technology developments and policies
• To analyse, in consultation with industry, current and future problems in the field of information and computer technologies
• To provide a meeting place for informal, off-the-record exchanges of information and opinions on subjects of mutual concern between members of parliament, their advisers and members of the computing, communications and information-handling industries.