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Table of Contents:
TABLE OF CONTENTS:.................................................................2
ABSTRACT.................................................................................4
1. INTRODUCTION .....................................................................5
1.1 REGULATION FOR THE AUDIOVISUAL INTERNET........................................................6
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5. CONCLUSION........................................................................45
BIBLIOGRAPHY.........................................................................47
TABLE OF LEGISLATION............................................................52
TABLE OF CASES......................................................................53
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Abstract
As the development of the internet continues, connection speeds increase and internet
access becomes ever more ubiquitous, mass media communications are adapting to
reach citizens through this new medium. Television broadcasting, a considerably
regulated industry, today delivers extensive audiovisual content via the internet in
addition to broadcasting.1 RTÉ, Ireland’s Public Service Broadcaster, maintains
Ireland’s most visited website.2
1
All web pages last visited on 10 August 2010 unless stated otherwise.
E.g. BBC iPlayer, Sky Player, Channel 4 on Demand, RTÉ Player, TV3 Catch-up et cetra.
2
RTÉ Press Centre, ‘RTÉ.ie Ireland’s No.1 Website, according to latest ABCe figures’ (Press Release,
19 July 2010) <http://www.rte.ie/about/pressreleases/2010/0719/rte.ieacbefigures19072010.html>.
3
SI No 258 of 2010 European Communities (Audiovisual Media Services) Regulations 2010.
4
EC Directive 2007/65/EC. The Directive regulates an ‘on-demand audiovisual media service’ or a
‘television broadcast’, as provided by a MSP as opposed to content excluded from these definitions
therein.
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1. Introduction
This highlights some benefits and pit falls of regulation and the fact that website
design can affect a service’s status as regulated or not.12 YouTube is largely designed
around potentially unsafe user generated content (UGC), but it is the leader of online
video websites in terms of traffic and broadcast-type regulation does not apply to it. In
attempts to monetise the dominant market position, YouTube continuously develops
its business model, which includes the acquisition of commercial programming.13 To
determine the applicability of the AVMS Directive to an Irish online video website
proprietor, the developing delivery models generated by YouTube provide the
greatest insight and will be used by way of example throughout this dissertation.14
5
www.youtube.com.
6
On one hand Irish law is lacking, see TJ McIntyre, 'Think tank: web firms aren’t liable to stay' The
Sunday Times (London, 28 February 2010)
<http://www.timesonline.co.uk/tol/news/world/ireland/article7043718.ece>; on the other hand the US
are increasing their protection, i.e. the Anti-Libel Tourism Act (HR 2765) (the 'SPEECH Act') signed
in on the 11th of August 2010.
7
C/f Regulation 18(1)(b) of S.I. No. 68 of 2003 implementing the E-Commerce Directive 2000/31/EC
in Ireland as opposed to Title 17 of the United States Code, section 512, in particular subsection (c)(3)
detailing notification procedure. US jurisprudence further defines procedure, most recently in Perfect
10, Inc. v. Google, Inc., 2:04-cv-09484-AHM-SH (C.D. Cal. July 26, 2010) where the court threw out
the majority of claims on the basis of various badly drafted notices.
8
Article 2 of the AVMS Directive provides that MSPs who are not under the jurisdiction of a member
state of the EU as defined will not be subject to its regulation. See section 2.
9
www.hulu.com.
10
Juan P. Artero, 'Online Video Business Models: YouTube vs. Hulu' (2010) PC, 13(1) 111-123, 113.
11
Ibid, 115.
12
A comprehensive review of various website strategies that remains relevant is presented in Monica
Arino, ‘Content regulation and new media’ C&S 2007 (66) 115.
13
http://www.youtube.com/user/rte.
14
In light of a perceptual difference, it should be noted that online video websites include websites that
make available full downloadable files for viewing with a media player program on the users computer
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In this dissertation the author is critical of the potential for website design to render
content unregulated whereas the content does in fact compete with traditional
television for both viewership and advertising revenues. These services may benefit
from some regulation to reduce costs and increase commercial certainty, thereby
promoting indigenous industries. However, it is still advisable for websites designed
for UGC to set up in the US.15
Besides traditional broadcast regulation, there are many other sources of regulation
for content on the internet. These include statutory regulation,16 self-regulation17 and
technical limitations. Though referenced herein, each are worthy of much more than
the confines of this dissertation can hope to discuss and this dissertation does not
attempt to deal with them in any great detail.
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As there is no doubt that the provisions of the AVMS Directive may apply to online
video services, it sits among a series of legislative enactments that since at least 1998
in Ireland have aimed to regulate the internet.22 In terms of internet governance, the
regulation falls into a co-regulatory regime whereby the internet is regulated by the
legislator, but enforcement is by the industry through their designated actor.23
Worldwide, websites with video content may be forced to comply with idiosyncratic
laws in each jurisdiction.29 Lessig (2006) describes how the architecture of the
internet might be used to identify the location of the user and ensure national
restrictions apply.30 Courts may enforce this theory directly on website providers to
the extent that the provider has a local presence or property, 31 through reciprocal
enforcement with a foreign jurisdiction,32 or prospectively based on a defendants
wishes to operate within the jurisdiction.33 Indirect enforcement is also possible via
intermediaries such as backbone ISPs.34
21
Article 2(a) of Directive 2002/21/EC.
22
SI No 220 of 1998 - Telecommunications (Amendment) (No. 4) Scheme 1998.
23
It is likely that in Ireland the designated actor will be the BAI, a statutory body accountable to the
government. See section 3.4.
24
Directive 2002/21/EC.
25
Directive 2000/31/EC.
26
Directive 2005/29/EC.
27
Directive 2006/114/EC.
28
Articles 12, 13 and 14 of Directive 2002/31/EC.
29
Application of law to the internet is a widely discussed topic, for a small selection see Lilian
Edwards and Charlotte Waelde (eds), Law and the Internet, (Hart, Oxford 2009), Laurence Lessig,
Code - Version 2.0, 2nd ed. (New York, BasicBooks 2006) and Jonathan Zittrain, The Future of the
Internet - And How to Stop It (New Haven, Yale University Press 2008.
30
‘The Many Laws Rule’, Laurence Lessig, (n. 30) 307-310.
31
Dr. Georgios I. Zekos, ‘State Cyberspace Jurisdiction and Personal Cyberspace Jurisdiction’ IJLIT
Vol. 15 No. 1 (2007) 15.
32
Dr. Georgios I. Zekos (n. 31) 14.
33
Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199, 1202 (9th Cir. 2006).
34
Luca Tiberi and Michele Zamboni, ‘Liability of Service Providers’ (2003) CTLR 9(2) 49-58, 49.
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Therefore, choice of jurisdiction will affect the applicable law. Varying regulations in
numerous jurisdictions means that online video website proprietors may gain a
competitive edge in an un-level playing field of law enforcement.35 In light of the
technological changes discussed below,36 providers can directly compete with
broadcasting worldwide without ever physically entering a market.
35
Wood claims sovereign states number 320 in the world today. Philip Wood, Principles of
International Insolvency, 2nd Ed (Suffolk, Thomson 2007) [3-001].
36
See section 1.2 below.
37
SI No 258 of 2010.
38
Regulation 19 and Regulation 3 of the S.I. both contain a typo. A subsection (1) is created, but there
is no subsection (2) to necessitate it, potentially giving rise to confusion.
39
See section 2.3 below.
40
Purpose of Bill as outlined in the explanatory memorandum to the 2008 bill available at
http://www.oireachtas.ie/viewdoc.asp?DocID=9446.
41
Available as an annex to each of their recently revised codes of conduct available at www.bai.ie.
42
See section 3.4.
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lobbying group for Irish ISP members.43 The ISPAI, in agreement with the Irish
Government, have established Hotline.ie for the public to report illegal content online
and compiled a code of practice for its members.44 The enforcement of this code is
monitored and overseen by the Office of Internet Safety within the Department of
Justice, with a threat of state regulation should it appear to be failing.
It follows that an Irish website proprietor either hosting content through these member
ISPs, or reaching users via these member ISPs, will be subject to these codes
indirectly. For example, any illegal content, such as audiovisual child abuse material
may be reported by this means and removed forcibly. Potentially, following a report
to the Gardaí, criminal charges may follow.
Technical limitations facing audiovisual content online have been largely overcome
for current standards. Since 2005 it has been proven possible to stream cinema-
standard 4K (4,000 horizontal pixels) video – 4.5 times the resolution of full high
definition 1080p (HD) – at a bit-rate of 200-450Mbps.45 In the same year, additional
developments in scalability were shown that allowed for 2.5 times the delivery
capacity of the backbone network itself.46 Today it is mainly the costs associated with
hosting, network capacity and bandwidth usage that limit development.
43
Claimed to represent 90% of the market, see
http://www.internetsafety.ie/website/ois/oisweb.nsf/page/regulation-howitworks-en.
44
Hotline aims to have illegal content taken down by informing the relevant party. Hotline largely
deals with child abuse images and to date has only found one Irish site hosting this content. Hotline,
2009 Annual Report, (Dublin 2009).
45
Takashi Shimizu et al, 'International real-time streaming of 4K digital cinema' FGCS (Oct 200) Vol
22(8) 929-939, 929.
46
Miroslaw Czyrnek et al, 'Large-scale multimedia content delivery over optical networks for
interactive TV services' FGCS (Oct 2006) Vol 22(8) 1018-1024, 1023.
47
http://www.google.com/tv/.
48
http://www.blockbuster.com/download.
49
http://www.channel4.com/programmes/4od.
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3G/4G devices allow access to audiovisual content when on the move.50 Many
independent producers embrace the online outlet as their sole output medium, even
generating sufficient revenue to cover production costs.51 Even major networks
continue to increase their online catalogues of on-demand content. With a constant
supply of content from many sources we have come a long way from the time when a
complete suspension of broadcasting, in order to protect children, was conceivable.52
The factors delaying the full delivery of TV via the internet include a greater number
of television sets than broadband connections present in Ireland.53 There are
significant delays in securing licences for international publication of copyrighted
works.54 There are also a number of persistent security concerns when providing
content via the internet such as service theft, unapproved access, denial of service
attacks, tapping, viruses and malware.55 Furthermore, users employing the onion
router TOR, or Haystack can easily overcome licenses limited by jurisdiction. These
systems are even capable of bypassing the censorship of the Chinese Government.56
Therefore, producers may be advised to seek greater fees in return for a broader
licence to a single provider in recognition that a single licence potentially distributes
the content worldwide.
Technology has also affected the industry balance between independent and corporate
productions. Cameras have moved from a film to digital format. Cheaper equipment
means prosumer-level and even consumer-level productions are capable of competing
with well-financed productions for both quality and entertainment value. Compare the
viewership of the most watched show on RTÉ, The Late Late show, at 908,000
50
John Collins, 'Mobile Broadband Gathers Speed' The Irish Times (Dublin, 4 July 2010)
<http://www.irishtimes.com/newspaper/finance/2010/0604/1224271808931.html>.
51
The production company VODO are producing a series titled ‘Pioneer One’ crowdfunded through
the Kickstarter website and now through http://vodo.net/pioneerone. When last viewed they have raised
over US$27,000 to fund future episodes.
52
Eoin O Dell, 'Won't Someone Please Think Of The Children?' (Blog Post, 17 Feb 2007)
<http://www.cearta.ie/2007/02/wont-someone-please-think-of-the-children/>.
53
A recent survey by ComReg suggests that over 97% of homes have TVs, but just over 72% have a
broadband connection. ComReg, 'Residential ICT Services Survey Q2 2010' (5 Aug 2010) Ref No
10/62, 35 and 51. Available at <http://www.comreg.ie/_fileupload/publications/ComReg1062.pdf>.
54
RTÉ, ‘Corporate Responsibility 2009’ Report (Dublin, 2010) 6. Available at
<http://www.rte.ie/about/pdfs/corp_responsibility2009_english_version.pdf>.
55
For more see Jong Park, 'Subscriber authentication technology of AAA mechanism for mobile IPTV
service offer' TS (Sep 2010) Vol 45(1) 37-45, 37.
56
Weiliang Nie, 'Chinese Learn to Leap the 'Great Firewall' BBC News (London, 19 March 2010)
<http://news.bbc.co.uk/2/hi/technology/8575476.stm>.
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This fact alone should not mandate their inclusion in regulation. However when their
content is delivered in a similar format and competes directly with RTÉ, it should be
said to be television-like and in competition with broadcasting services, thus falling
within the definition of an audiovisual media service as per legislation.59
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It should be noted that while this addition broadens the scope of regulation, it does
nothing to alleviate the confusion of a viewer. For example, advertisement limits may
be expected. Article 18 of the AVMS Directive provides that a maximum of 20% (12
minutes) of an hour may be devoted to television advertisements. Article 10(2) and
11(1) also limit television advertisements but similarly do not apply to on-demand
offerings. Similar restrictions should apply to on-demand services. Market forces may
encourage brief advertisements for online audiovisual content, but not where one
provider has exclusive distribution rights to popular content.
Article 3h (2)(a) – Media service providers of on-demand audiovisual media services shall
notify users of the length of time any audiovisual commercial communications prior to a
programme is intended to delay the start of the programme.
Article 3h (2)(b) – The proportion of audiovisual commercial communications in any item in a
19 and 20 – television advertising and teleshopping additional rules; Article 23 – right of reply.
68
For example the www.4od.com and www.youtube.com offerings.
69
Recital 42 of the AVMS Directive.
70
And by extension progressive downloads that allow a user to view the start of the audiovisual content
while the remainder is still downloading.
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1.3 Can we still define online video websites separately from broadcaster services
for the purposes of the AVMS Directive?
The question posed seeks to adduce whether there is a distinct and reasonable
differentiation between broadcasters and video website proprietors. As noted below,71
where online video websites provide a particular stream of audiovisual programme
content, it is in fact already regulated as a broadcast service.
Content then is regulated on the basis of what kind of content it is. Given the advent
of IPTV and the current market trends eliminating the distinction between content you
can watch on a television and content only available on a computer screen,72 the
concept of television-like becomes redundant.73 The Directive indicates the concept is
to include content for which the means of access leads to an expectation of regulation
and it competes for the broadcast audience. Given the subjective nature of the latter
requirement and the extent of internet access, this may include any content.
71
In section 3.2.
72
OECD Working Party on Communication Infrastructure and Services Policy, ‘IPTV: Market
Developments and Regulatory Treatment’ (19 Dec 2007) DSTI/ ICCP/CISP(2006)5/FINAL, 6.
73
Described in Recital 17 of the AVMS Directive.
74
The definition includes the alternative of providing audiovisual commercial communications.
However, to be regulated, there must be a MSP who has ‘editorial control’ over ‘programmes’.
75
Article 1(b) of the AVMS Directive.
76
Susan Murray and Laurie Ouellette, Reality TV: Remaking Television Culture (2nd edn NYU Press,
New York 2009) 2.
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It is clear the Directive’s main aim is to regulate the television broadcasting industry
as it develops delivery methods.77 The Directive’s provisions aim to avoid regulating
content that would not be published but for the internet. However, by determining
regulation based on content type, this inherently fails to contain regulation to the
online equivalent of a traditional broadcaster but rather, as seen, potentially regulates
all online video websites. Other factors then that may be used to determine if content
is television-like might include whether the MSP has a broadcasting licence, actively
licenses or commissions content, or is a registered company for audiovisual services.
The website design may be employed to avoid regulation. For example, increasing
instances of community participation by allowing feedback comments, ratings,
subscriptions, video replies and such may allow this service to claim it is a service for
private users to share within communities of interest.
77
Particularly given the exemption of private websites explained in Recital 16 of the Directive.
78
Newman makes a similar point noting the ‘false dichotomy’ of the AVMS Directive in attempting to
distinguish between professional content and amateur content. Elizabeth Newman, (n. 18), 166.
79
S.I. Regulation 2.
80
Section 123 and 114 of the Broadcasting Act 2009.
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the proportion allocated to the publishing department of RTÉ81 in the latest annual
report once publicised.82 RTÉ claims that it does not use licence fees to compete
online.83 This may change as the industry develops. It is certainly true that
commercial revenues of broadcasters are spent on their online offerings.
81
Responsible for maintenance of the RTÉ player, the RTÉ Guide and other activities.
82
Though fees representing the acquisition of online distribution rights may be included under a
different heading, the attribution of license fee revenues to the publishing department may indicate
significant investment in online delivery of content. Note 1 to the group accounts indicates this figure
was 0 in 2008. RTÉ, 2008 Annual Report (Dublin 2008).
83
Siobhan O'Connell, 'Newspapers Rail Against Proposals to Boost Advertising Time Available to TV
Channels' The Irish Times (Dublin, 15 July 2010)
<http://www.irishtimes.com/newspaper/finance/2010/0715/1224274737894.html>.
84
BBC Entertainment News, ‘Project Canvas Approved by BBC Trust’ BBC News (London, 25 June
2010) <http://www.bbc.co.uk/news/10414215>.
85
http://www.google.com/tv/.
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It must be made clear at the outset that the AVMS Directive does not apply to non-EU
media service providers (MSP) who, apart from an online presence, maintain no part
of their business in the EU. By determining jurisdiction on the basis of workforce
location, decision-making location, head office location or, in the alternative, the
establishment location,86 Article 2 subsections (3) and (4) of the Directive 87 excludes
these services.88
86
Article 2(5) of the AVMS Directive defines this as within the meaning of Articles 49 to 54 (ex
Articles 43 to 48 TEC) of the Treaty of the European Union. The ECJ stated this involves the actual
pursuit of an economic activity through a fixed establishment for an indefinite period in Case C-221/89
Factortame (1991) ECR I-3905 at paragraph [20].
87
Transposed by Regulation 3 of the S.I.
88
For how these factors determine jurisdiction see section 3.1.2˚.
89
Mira Burri-Nenova, ‘The Reform of the EC Audiovisual Media Regulation’ IJCP 2007 14(2) 169-
204, 177.
90
Similar to Recital 37 of the Directive which uses this logic within the term ‘media literacy’ as a
justification for lighter touch regulation.
91
Case 52/79 Procureur du Roi v Marc J.V.C. Debauve and others [1980] ECR 0833.
92
Alison J. Harcourt, ‘Institution-driven Competition’ JPP (2007) 27, 293-317, 305.
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on public policy grounds is almost never used.93 The AVMS Directive does however
take this further. In Article 3, member states with stricter rules may derogate from this
principle where an external service is mostly directed towards the state.94 The
European Commission provides oversight.
Building on this goal to open and improve the internal market, it may also be advised
to harmonise the external barrier of the EU trading block. By not regulating non-EU
MSPs, they effectively operate with a country of origin principle, though without any
effective means of derogation for receiving states. This creation of an unlevel playing
field fails to protect the EU market, a goal of the AVMS Directive as noted below.
Burri-Nenova notes that the stimuli for content providers to consolidate in Europe
will negatively affect diversity of cultural expression in Europe.96 Elizabeth Newman
views the non-specific provisions to ‘promote, where practicable and by appropriate
means’, EU and independent works for on-demand services,97 as a ‘subjective
requirement’ and unenforceable.98 This may stem from an unwillingness of the
legislator to enter conflicts between ‘integrationists and intergovernmentalists,
interventionists and liberalisers’.99 Particularly so given alternative economic
concerns could be focused on.
While broadcasting remains, the application of the major events provision only to
broadcasts suffices to achieve its aim. In Ireland, copying a short news clip for the
purposes of reporting current events is already protected as a fair dealing under the
93
Elizabeth Newman, (n. 18) 163.
94
This is in light of the rulings in Case C-212/97 Centros [1999] ECR I-1459, Case 33/74 Binsbergen
(1974) ECR 1299 and Case C-23/93 TV 10 SA (1994) ECR I-4795.
95
Mira Burri-Nenova, 'Cultural Diversity and the EC AVMSD' NCCR Trade Reg WP (2009-09) 2.
96
Ibid 11-12.
97
Article 3i of the AVMS Directive, transposed by Regulation 11(1) of the S.I.
98
Elizabeth Newman, (n. 18) 174.
99
Mira Burri-Nenova, (n. 95) 17.
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Protection of minors for example requires on-demand providers to ensure that minors
will not normally hear or see particular content. 105 Website design is then crucial to
show an attempt in this regard. Recital 45 emphasises the use of pins, labelling and
filtering. Füg finds that some self-regulatory systems lead developments by creating a
system of detailed content labelling.106 However, parental or guardian control is
implicitly paramount therein. The Directive’s requirements serve only to aid
guardians in that regard.
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It follows that the reasoning for lighter regulation cannot be specifically to promote
the emerging online audiovisual media service industry. Rather, the lighter tier of
regulation applies to what must now be considered the competing market of on-
demand audiovisual media services. Lighter regulation and greater user control
present this as a substitute to television broadcasting. Does the lighter regulation then
deliberately encourage market dominance of on-demand offerings, or is it rather a
symptom of the service design? It would appear the latter is the answer.
However prior to the AVMS Directive, services outside television broadcasting were
not within the scope of this regulation. This was highlighted in the Mediakabel case
where a near-video-on-demand service, i.e. one in which a programme is transmitted
multiple times at staggered intervals, failed to escape regulation.113 The imposition of
regulation, though removing uncertainties about potential regulation, serves to
increase costs for these services. In addition, the idiosyncrasies in on-demand
regulation, notably protection of minors and promotion of EU-works,114 respond to the
nature of the on-demand service. As noted by Burri-Nenova the quota system would
109
RTÉ Player, TV3 Catch-up, TG4 player.
110
PVR players, e.g. Sky Anyime with Sky set top boxes.
111
Broadcast services delivered via IPTV compete.
112
Elizabeth Newman, (n. 18) 168.
113
Case C-89/04, Mediakabel BV v Commissariaat voor de Media, 2 June 2005.
114
Article 22 vs Article 3h – Minors; Article 4 and 5 vs Article 3i – EU Works.
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In fact it would appear the greatest direct benefit of lighter regulation is the lack of
time and placement limits of audiovisual commercial communications (ACC).119
ACCs delivered as pushed content affecting the user’s choice of when to watch
content should be regulated as outlined in section 1.2.1˚ in line with the Directive’s
acknowledgment that user control supports lighter regulation.
Definitions and provisions are transposed word for word, with some additions to
reflect the interpretations given in the recitals to the Directive. Worthy of note is the
fact that Ireland defined on-demand audiovisual media services to exclude all services
listed in Recitals 16 to 18.
Beyond that, Ireland has provided for co-regulation in Regulation 13 of the S.I.
which, given the country of origin principle, should not affect EU harmonisation of
audiovisual regulation.
The following is a list of selected provisions not directly implemented in the S.I. and
the Irish statute likely to suffice for the purposes of transposition.
115
Mira Burri-Nenova, (n. 95) 16.
116
Article 3j.
117
As it is in Ireland, see section 51(2) Copyright and Related Rights Act 2000.
118
In Ireland, sections 28-34 of the Defamation Act 2009.
119
Articles 10-20 AVMS Directive.
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As it stands this will exempt the vast majority of audiovisual content available online.
Editorial responsibility is then defined as effective control being exercised over the
120
It is almost impossible to put an order on these steps. Though each must be fulfilled, the circular
nature of their definitions means that in order to determine if one is fulfilled, another must be tested.
The order given is the most practical in the authors mind.
121
Interpretation Act 2005 Section 18(c).
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The multiple layers, the circular definitions, the unhelpful examples, and the ill-
defined terms open to member state’s idiosyncratic implementation means that this
definition is not clear and unhelpful to the industry. Solutions are discussed in section
4.1.3˚ below.
3.1.2˚ Is the service within the jurisdiction of a member state of the EU?
Though not directly transposed in the S.I. because the Irish implementation regulates
only services within the jurisdiction of Ireland,123 Article 2(6) of the AVMS Directive
excludes audiovisual media services not intended for reception within the EU and
which the public in member states do not receive with standard consumer equipment.
This is an updated subsection that originally, within the Television Without Frontiers
Directive,124 referred only to television broadcasts.
The term ‘standard consumer equipment’ is not defined. A reasonable definition may
be any item that is deliverable immediately upon demand with a payment of cash only
and below a reasonable upper limit in price. Under this definition, equipment with an
internet connection must be taken to be included in the definition. Therefore all
122
Isik Onay, (n. 62) 338.
123
S.I. Regulation 3.
124
Directive 89/522/EEC as amended by Directive 97/36/EC, Article 2(6).
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internet services are potentially included. Whether equipment in this context would
include software is unclear. Software used to bypass jurisdictional restrictions on
websites might be non-standard, thus MSPs using these restrictions to stop EU
viewers may be excluded.125
Regardless, non-EU MSPs are excluded under Article 2 where both their editorial
decision-making and their head office are located outside the EU. It is a regrettable
this was not directly addressed in the Directive. This unlevel playing field was one
reason that the UK, in particular, promoted the use of pure self-regulation for online
video websites to implement the same rules as the AVMS Directive. 126 Ultimately this
suggestion was implicitly rejected as insufficient to achieve the goals of the Directive.
Once a service provider has been identified as within the EU for the purposes of
regulation, Article 2 of the AVMS Directive determines the individual member state
that has sole jurisdiction over it.127 A MSP will be under the jurisdiction of Ireland if
they have their head office and take editorial decisions in Ireland.
If either the editorial decision-making or the head office is located outside Ireland, but
still within the EU, the following applies:
If a significant part of the workforce undertaking the audiovisual media
service operates in Ireland, then the service provider is still in Ireland’s
jurisdiction.
If there is a significant part of the workforce undertaking the audiovisual
media service in both locations, and the head office is in Ireland, then the
service provider remains in Ireland’s jurisdiction.
If the significant part of the workforce undertaking the audiovisual media
service operate in a location other than the two varying locations of the head
office and the editorial decisions, then the MSP will be under Ireland’s
jurisdiction if it was established under Irish law in Ireland at a prior date to its
establishment in the other locations under their respective laws and the MSP
125
Users may be committing offences under the Copyright and Related Rights Act 2000, or should it be
ratified in Ireland, under Article 6 of the Convention on Cybercrime.
126
Elizabeth Newman, (n. 18) 162.
127
Article 2(3) and (4) of the AVMS Directive were directly implemented by way of Regulation 3 of
the S.I.
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Where either the head office location or the editorial decision-making is not within
the EU, but the other is in Ireland, the MSP will be under Ireland’s jurisdiction if a
significant part of the workforce undertaking the audiovisual media service are in
Ireland. Article 2(5) of the AVMS Directive further provides that failing all of the
above, recourse may be had to The Treaty of the European Union.128
For Small to Medium-sized Enterprises (SMEs) this may in fact be a simple test to
apply. However as organisations grow larger, particularly for international news
channels that may have a significant part of their workforce abroad, the final
jurisdiction may be an undesired location with stricter laws.129 Moreover, defining
jurisdiction based on editorial decision-making and workforce locations means that a
MSP may regularly change jurisdiction, potentially generating issues of enforcement
and uncertainty with regard to the application of stricter idiosyncratic laws of other
member states. By restricting larger companies, Europe is again creating an un-level
playing field with other non-EU MSPs.
ACCs include advertisement spots, therefore it is possible that ACCs alone would not
fall into the definition of a programme as discussed.132 It follows that an audiovisual
media service consisting entirely of ACCs is not provided by a MSP, where a MSP is
required to have editorial responsibly over the selection of programmes.
128
Treaty of the European Union, Chapter 2 – The Right Of Establishment, Articles 49-55 (Previously
43-48 TEC).
129
The AVMS Directive in Article 3 allows member states to enact stricter rules on MSPs in their state.
In Case C-222/07 UTECA v. Administración General del Estado (ECJ 5 March 2009) the ECJ upheld a
Spanish rule that all broadcasters must have 60% Spanish content, noting that this achieved cultural
promotion.
130
Contained in Regulation 2 of the S.I. transposing Article 1(a) of the AVMS Directive.
131
A services as defined in Articles 56 and 57 (formerly 49 and 50) of the Treaty of the European
Union.
132
See section 3.1.1˚.
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In this case, where for example a website contained on-demand ACCs only, the
regulations would not apply to it under Regulation 3 of the S.I. You must first be a
MSP. This is important with regard to teleshopping, which is already implicitly
characterised as television broadcast only.133
The definition goes on to say, in light of Recital 16, 17 and 18 of the AVMS
Directive, the following characteristics are also required:
The service is under editorial control or responsibility of a service provider.
This is reiterating the definition of a MSP and as such is redundant.
The service has as its principle purpose the provision of television-like content
133
S.I. Regulations 14-16 sets out regulations for broadcasters only, then Regulation 19 removes these
for teleshopping channels. Furthermore Article 19 of the AVMS Directive refers to teleshopping as
content for a ‘television’ channel.
134
S.I. Regulation 2.
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to television broadcast but rather within the same service, could place any online
video website within the remit of this Directive.
139
http://www.youtube.com/leanback - Although with this system you must be a registered member,
and the playlist is predominantly generated based on your previous input, e.g. previously watched
videos.
140
Elizabeth Newman, (n. 18) 166.
141
In the attempts to regulate only television-like services alternative definitions may be sought, as it
may be necessary to regulate some ‘private’ websites. See Jacob Rowbottom, 'Media Freedom and
Political Debate in the Digital Era' MLR 2006, 69(4) 489-513, 509-512.
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It is under this exemption that websites such as YouTube, that allow free uploading of
UGC, will claim exemption from regulation. In fact, it was never the intention of the
European Commission to regulate these websites.142 However, the ambiguity of the
phrase ‘primarily’ permits regulation to apply to websites that cross an undefined
threshold. The website design therefore of an online video website will help
determine the application of regulation.143
Newman considers that this exemption applies to the entire content of a web domain
that hosts an electronic version of a newspaper or magazine.145 This may be a rational
interpretation, however, it cannot be correct given the wording, taken directly from
Recital 21 of the AVMS Directive.
(vi) Services where the audiovisual content is incidental to the main purpose
of the service.
This may apply to a website that contains audiovisual items that do not form the
142
Elizabeth Newman, (n. 18) 166.
143
For solutions see section 4.1.1˚(iv).
144
Viviane Reding, ‘Audiovisual media services directive: the right instrument to provide legal
certainty for Europe’s media businesses in the next decade’ (Speech, 7 June 2006) SPEECH/06/352
2006, 5. Available at <https://www.uer.info/CMSimages/en/BRUDOC_INFO_EN_284_tcm6-
45006.pdf>.
145
Elizabeth Newman, (n. 18) 166.
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principle purpose of visiting that website. This may be used by newspapers and
magazines who may claim the principle purpose of their website is to read the articles
published, whereas the audiovisual content is incidental to illustrate the point of a
written article. Further content to be excluded include: flash intro animations, mouse-
over interactive or other audiovisual advertisement and similar peripheral items.
This may not apply to audiovisual content informing about a service or good, where
the website is solely to inform about that service or good, and not to sell it online, i.e.
it is the principle purpose of that service.
Finally, content will be regulated on an item-by-item basis, and not on the overall
basis of a website. Onay makes this point and highlights the fact that many on-
demand websites deliver a mix of regulated and non-regulated content.147 Therefore it
is quite possible that should the RTÉ player allow UGC to be uploaded to a section of
its website, it would be excluded from regulation if RTÉ avoid any editorial control.
146
Ibid 167-8.
147
Isik Onay, (n. 62) 349.
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The Irish implementation added the words ‘quasi simultaneous’ in light of Recital 24
of the AVMS Directive noting delays in transmission process. Recital 20 also
indicated the definition should include near-video-on-demand following the
Mediakabel case.148
Therefore any MSP providing a single public stream of programme content from a
website, which the user has no control over playback besides a choice to view or not,
will be regulated as a linear service. Therefore, providers of live webcam services
showing locations of interest should be exempted, as this is not a programme within
the definition. Though potentially analogous to a reality show, it is not an item in a
schedule, but rather a continuous feed.
148
Case C-89/04, Mediakabel BV v Commissariaat voor de Media, 2 June 2005.
149
Seen as a pleasurable surveillance in noted contradiction to Foucault’s Panopticon. Susan
Hesemeier, ‘Streaming Video Theory’, LLC, Vol. 21, Suppl Issue, 2006, 67-75, 69.
150
www.dctv.ie.
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3.3 Changes for Irish services providers following the AVMS Directive
It remains that those regulated by the Directive in Ireland are likely to be largely
comprised of the public service broadcaster RTÉ including TG4 and the Irish Film
Channel, and the main broadcasters under Ireland’s jurisdiction and licensed by the
BAI in Ireland such as TV3, Setanta Sports and City Television Network, Chorus TV,
Cork Community Channel and DCTV.152
However, even these services must be within the definitions discussed,153 for their
online video website to be regulated. For example, if the on-demand audiovisual
media service that DCTV provides was deemed to be primarily non-economic, it
would be thus exempted. This creates an un-level playing field online for two services
that compete off-line, e.g. DCTV could use unrestrained product placements. The
question then arises, what effect will the regulation have?
151
As discussed in section 1.2.1˚.
152
BAI, ‘Licensed Operators’ (Webpage, 10 Aug 2010) <http://www.bai.ie/licensed_operators.html>.
153
Section 3.1.
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Compliance with the terms of the AVMS Directive may also be seen as a guarantee of
a quality service. The rules on product placement seek to keep to the spirit of the
separation principle between advertising and programming, in that consumers can
recognise commercial communications.156 This may be a value added for the
consumer. In addition, ensuring contact details are accessible imposes a minimum
level of consumer support adding value to the consumer experience.157
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demand services and as discussed below,172 enforcement for these services will be
through a co-regulatory procedure involving the BAI.173
For the majority of providers regulated, predominantly broadcasters, the content itself
will be compliant by complying with the requirement for broadcast.174 MSPs online
must now be wary that the design of their service is regulated in addition to the
content therein. Online, sponsorship cannot affect the independence of the MSP in
exercising their editorial responsibility, i.e. sponsors may not choose their position in
an online catalogue of videos.175 Identification of all forms of ACC may require the
word ‘advertisement’ or similar, to appear within the media player. It must appear
within should the viewer choose a full-screen viewing option.
advertisements.
172
Section 3.4.
173
As required by Regulation 13 of the S.I.
174
Recital 20 of the AVMS Directive
175
S.I. Regulation 7(2)(a).
176
Arino asks does this extend to a whole website, or just an URL? It would appear to be the entirety of
the service offered by the MSP. Monica Arino, (n. 12) 120.
177
S.I. Regulation 7(2)(b).
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For MSPs with an exclusive online presence, the familiar bans must be put into effect.
These include ACCs that are: subliminal and surreptitious; prejudicial to human
dignity; discriminatory; encourage behaviour prejudicial to health, safety, the
environment; for tobacco; aiming alcohol to minors or encouraging excessive
consumption; for prescription medicines or procedures; a cause of physical or moral
detriment to minors, e.g. exploiting vulnerabilities of minors to exhort sales;
sponsorships for news and current affair programmes; sponsorships for
documentaries, religious and children’s programmes; programmes containing product
placements produced after the 19th of December 2009 except where they are identified
as such and follow particular rules.178
178
S.I. Regulations 8, 9 and 10; this is to allow new revenues. Product placement in America is said to
count for 5 percent of advertisement revenues. See Conor Pope, 'Nice Trackie, Sue' The Irish Times
(Dublin 7 June 2010)
<http://www.irishtimes.com/newspaper/pricewatch/2010/0607/1224271999697.html>.
179
Damien Tambini et al, (n. 18) 98-109.
180
House of Lords, 'European Union - Third Report' (EU Committee Publication, 23 Jan 2007)
<http://www.publications.parliament.uk/pa/ld200607/ldselect/ldeucom/27/2710.htm>, chapter 7.
181
Recital 7 of the AVMS Directive.
182
Damien Tambini et al, (n. 18) 1.
183
Jeanne Pia Mifsud Bonnici, Self-Regulation in Cyberspace, (T.M.C. Asser Press, The Hague 2008)
14-19.
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6. Member States shall, by appropriate means, ensure, within the framework of their
legislation, that media service providers under their jurisdiction effectively comply with the
provisions of this Directive.
7. Member States shall encourage co- and/or self-regulatory regimes at national level in the
fields coordinated by this Directive to the extent permitted by their legal systems. These
regimes shall be such that they are broadly accepted by the main stakeholders in the Member
States concerned and provide for effective enforcement.
Ireland transposed this in Regulation 13 of the S.I. While the statutory instrument
itself put the provisions of the AVMS Directive into law, it seeks to enforce them by
requiring service providers to self-regulate in conjunction with the existing BAI
organisation by complying with a forthcoming code of conduct. This system must
include a complaints procedure, where breaches can be reported and then dealt with.
This will act as enforcement of the law without further intervention by the Irish State.
The Minister for Communications, Energy and Natural Resources must be presented
with the code and regularly reported to. The initial code, revisable as necessary, must
be created by the 8th of September 2010. This is a system of co-regulation as per
Recital 36 of the Directive.
Notably, BAI is not specified as the organisation for oversight of the code. As the
BAI is itself a legislative body under the Broadcasting Act 2009, the option for an
independent body to regulate on-demand service providers remains open. However,
as the BAI must be involved in the preparation of the code, and must approve it, it is
likely they will be designated as the oversight body to which complaints are
addressed. For MSPs providing web-streaming content, they are subject to the
Broadcasting Act 2009 and the established codes of conduct from the BAI. If a
service provides both broadcast and on-demand offerings, they must comply with
both codes independently for each service.
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Onay points to the possibility of licensing content providers and notes that it is
difficult to require licensing for online services and that this would contribute to an
unlevel playing field for those subject to the requirement and those not.186 It is
possible however that the BAI or other independent body may employ a system such
as that employed by ATVOD in the UK. This requires MSPs to pay fees to participate
in the mandated regulation.187
184
S.I. Regulation 20.
185
Minister Eamonn Ryan, ‘The Future of Media’ (Speech, 27 April 2010)
<http://www.youtube.com/watch?v=k-17LlO3Tjg> at 1:35-1:55.
186
Isik Onay, (n. 62) 344.
187
NB: one of the main roles of ComReg, the Irish statutory communications regulator, is charged with
devising new licensing regimes under section 60 of the Broadcasting Act 2009.
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This section reviews AVMS Directive in light of the discussion above and aims to
draw together the implications of the Directive’s implementation.
Furthermore, it should be noted with regard to the above that an aggregator site that
compiles a catalogue of either links or embedded content might fall within the
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Thought significant, the effect of avoiding regulation for these services broadly
conforms to the AVMS Directive’s aim to regulate the broadcasting industry’s move
to new transmission methods. However new business models, like YouTube
Leanback, coupled with improvements in typical UGC and the potential for
professional content to be submitted as UGC, are exempt.
The Directive does not go far enough to regulate the new audiovisual media services
industry. To this end, the Directive should exclude, specifically, the content generated
by third party users of a hosting or distribution service as opposed to excluding the
entire service, which consist primarily of that content. In addition, codes of conduct
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should set guidelines for what will be deemed a private website and a primarily
economic service.
The code should make the following additions. Where ACCs are considered pushed
content, additional requirements should be imposed such as those outlined in section
1.2.1˚ above. In addition, unified labelling system for various types of sensitive
content should be developed and imposed on the industry. The unifying of
requirements will help to keep costs down and give certainty to MSPs, a benefit of
regulation.
a set of moving images with or without sound constituting an individual item within a
schedule or a catalogue established by a media service provider.
Services intended not to be regulated are exempt under the definition of an on-
demand media service provider, or on the basis that continuous feeds from a web
camera do not constitute items in a schedule.
188
The BAI’s current codes of conduct, and the forthcoming on-demand code of conduct outlined in
section 3.4.
189
S.I. Regulation 7(2)(b).
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as prevalent yet, despite this, social networking trends that encourage profiling are
popular. The BBC advertise their new iPlayer version with the opening lines
Do you want to know what TV and radio programmes your friends are enjoying? Want to
track what you've played on iPlayer and keep that history wherever you are?194
TJ. McIntyre, the Chairman of Digital Rights Ireland, notes that Ireland faces the
same issues of data breaches and highlights the benefit of data breach notifications.195
Furthermore, limitations on unilateral changes to privacy policies are recommended,
e.g. notifications and opt outs. The Data Protection Directive is the primary regulation
in this area.196
Where a MSP generates a catalogue of content from other online sites, e.g. by
embedding video players from other sites that may not be regulated, the MSP is
within the definitions of the Directive and may be forced to comply with those
regulations for the content included. This is in addition to various potential illegalities
including breach of contract in the terms of use with the original host.201
194
Marina Kalkanis, ‘Under The Bonnet of BBC iPlayer v3’ (BBC Official Blog, 28 June 2010)
<http://www.bbc.co.uk/blogs/bbcinternet/2010/06/under_the_bonnet_of_bbc_iplaye.html>.
195
TJ. McIntyre, ‘Data Law is Long Overdue’ The Sunday Business Post (Dublin 21 June 2009)
<http://archives.tcm.ie/businesspost/2009/06/21/story42618.asp>.
196
Directive 95/46/EC. In addition Directive 2002/58/EC on privacy and electronic communications
applies.
197
Screen scraping is the process whereby the content from a website is copied onto another website.
198
Streaming broadcasts may be copyright infringement. See UEFA & ors v Briscomb & ors [2006]
EWHC 1268.
199
http://www.justin.tv/.
200
Some US courts have found deep linking to other’s streams to be copyright infringement,
notwithstanding the lack of a copy. Live Nation Motor Sports, Inc. v Davis, No. 3:06-CV-276-L, 2007
US Dist. WL 79311 (N.D. Tex. 9 January 2007).
201
Irish courts have recently upheld the validity of terms of use on websites in Ryanair Ltd v
Billigfluege.de [2010] IEHC 47 (2010); There may arise further liability in this regard by breaching
computer statutes such as trespass claims. This is the issue in a US case, Facebook v. Power Ventures,
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5. Conclusion
Following the AVMS Directive, the regulations imposed on the majority of Irish
providers of online video websites are unaffected. In addition, those service providers
who are regulated are well placed to implement the required changes to their online
offerings. However, in quantitative terms the impact may be significant on the Irish
online audiovisual industry and on internet users, given the dominance of the RTÉ
website in terms of viewership.
Significantly, the AVMS Directive has marked the imposition of television broadcast
regulation on services supplied via the internet. From this we learn that whatever the
medium for audiovisual content, regulation standards will follow. Indeed whether the
on-demand market or the broadcast market is most successful long term is immaterial
as the Directive applies the same regulatory goals to both.
Furthermore, the regulation itself, applied through co-regulation under the Irish
implementation, will be efficiently and effectively enforced through an evolving code
of conduct. The forthcoming code should be used to clear up the ambiguities in the
definitions as outlined.
Take the following example at the extreme of possibility. The on-demand market
undergoes consolidation of providers following the popularisation of worldwide
licensing for internet services.203 A single provider will have exclusive distribution
202
Recital 17, 6 and 48 respectively. Recital 6 recognises the importance of protecting the internal
market for employment opportunities.
203
The EU has commissioned a study concerning multi-territory licensing for the online distribution of
audiovisual works in the European Union (SMART 2008/0002). In the current market place there are
incentives to provide duplicate content online. In particular the right holder can generate more revenue
by selling licences to numerous parties as opposed to one and limiting them by jurisdiction and time.
Service providers employ duplicate content to improve ranking in search engines, to lock-in current
viewers, to entice target demographics to a website, to maintain a credible online presence and to
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rights to entire productions such as the Friends or Simpsons television show and other
service providers could not compete for related revenues.204 The potential for this
situation exists with services like Hulu.
Technological changes in the delivery of content, like GoogleTV, may redefine the
television experience as an on-demand service. In this case, the loss of Hollywood
and other American productions to American service providers would dramatically
affect the services European viewers choose to use.
This potential eventuality is presented to illustrate the regulatory gap that exists. EU
markets in their current state may suffer without protection or incentives, 205 and EU
citizens may suffer from unregulated content such as alcohol advertisement aimed at
minors. While market forces may keep the former concern in check,206 it is
foreseeable that EU viewers will face dominant foreign players with unregulated
content alongside EU MSPs on their television sets.
To this end, audiovisual media services from non-EU states should be regulated inside
the EU.207 At the very least a badge of compliance with the AVMS Directive should
be made available to regulated MSPs and promoted by the European Commission. In
this way, all the goals of the AVMS Directive will be addressed for now. Going
forward, market developments mean regulation must be kept under constant review.
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Bibliography
Books
Damian Tambini et al, Codifying Cyberspace – Communications self-
regulation in the age of Internet convergence, (Routledge, Oxfordshire 2008).
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(Speech, 7 June 2006) SPEECH/06/352 2006.
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BAI, ‘Licensed Operators’ (Webpage, 10 Aug 2010)
<http://www.bai.ie/licensed_operators.html>.
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Brian Morrissey, 'Google Sets Up YouTube Grant Program for Content
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<http://www.mediaweek.com/mw/content_display/news/digital-
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<http://www.irishtimes.com/newspaper/pricewatch/2010/0607/122427199969
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7.html>
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Table of Legislation
Irish Legislation
Broadcasting Act 2009
Copyright and Related Rights Act 2000
Defamation Act 2009
Equal Status Act 2000
Interpretation Act 2005
Prohibition of Incitement To Hatred Act, 1989
Public Health (Tobacco) Act 2002 (as amended by the Public Health
(Tobacco) (Amendment) Act 2004)
S.I. No. 220 of 1998 Telecommunications (Amendment) (No. 4) Scheme,
1998
S.I. No. 258 of 2010 European Communities (Audiovisual Media Services)
Regulations 2010
S.I. No. 68 of 2003 European Communities (Directive 2000/31/EC)
Regulations 2003
UK Legislation
Communications Act 2003 (UK)
EU Legislation
Directive 2000/31/EC – E-commerce Directive
Directive 2002/21/EC – A Common Regulatory Framework for Electronic
Communications Networks and Services
Directive 2002/58/EC - Directive on privacy and electronic communications
Directive 2005/29/EC – Unfair Commercial Practices Directive
Directive 2006/114/EC – Misleading Advertisements Directive
Directive 89/522/EEC as amended by Directive 97/36/EC and Directive
2007/65/EC – Audiovisual Media Services Directive (AVMS Directive)
Directive 95/46/EC – Data Protection Directive
US Legislation and Constitution
17 USC 512 (US) - Limitations on liability relating to material online
Anti-Libel Tourism Act (HR 2765) (the 'SPEECH Act') (US)
The United States Constitution
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James Byrne BBLS jamesddbyrne@gmail.com
International Treaties
Convention on Cybercrime
Treaty of the European Union
Table of Cases
US Case Law
Facebook v. Power Ventures, Inc., Case No. C 08-05780 (N.D. Cal. July 20,
2010)
Live Nation Motor Sports, Inc. v Davis, No. 3:06-CV-276-L, (N.D. Tex. 9 Jan
2007)
Perfect 10, Inc. v. Google, Inc., 2:04-cv-09484-AHM-SH (C.D. Cal. July 26,
2010)
Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199, 1202 (9th Cir.
2006)
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James Byrne BBLS jamesddbyrne@gmail.com
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