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Regulation of Online Video Websites

Regulation of Online Video Websites

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Published by jamesddbyrne
Regulation of Online Video Websites: Lessons from the Audiovisual Media Services Directive
Regulation of Online Video Websites: Lessons from the Audiovisual Media Services Directive

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Published by: jamesddbyrne on Sep 06, 2010
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10/31/2011

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Despite prior implementations of self-regulation,179

the European Commission felt
that online audiovisual media services required the AVMS Directive. This was in the
face of calls for self-regulation to allow for allegedly better regulation and a level
playing field with non-EU competitors in online services.180

Conversely, the Directive
cites creating a level playing field inside the EU as a reason for implementing the
Directive.181

Chapter 1 of Tambini et al’s Codifying Cyberspace describes the model of self-
regulation, depicting the US as the leader of self-regulation in the regulatory vacuum
in the late 1990s.182

Bonnici typifies pure self-regulation as an American perspective

on self-regulation.183

The result of the European Commission’s implementation of the

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)
.

179

Damien Tambini et al, (n. 18) 98-109.

180

House of Lords, 'European Union - Third Report' (EU Committee Publication, 23 Jan 2007)
, 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.

Page 36 of 54

James Byrne BBLS

jamesddbyrne@gmail.com

AVMS Directive reinforces a European differentiation from American self-regulation
and leads to a ‘co-regulatory’ regime. The relevant sections of Article 3 state:

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.

It is hereby submitted that the requirement of the creation of an explicit code of
practice incorporating predominantly basic levels of regulation, with the participation
of the industry is a better solution to self-regulation that may lack certain rules,

Page 37 of 54

James Byrne BBLS

jamesddbyrne@gmail.com

effective enforcement or defined participants. Within this system penalties for
breaches must be defined, likely to include fines. If this system fails, breaches of the
S.I. regulations may result in an injunction to enforce compliance in addition to any
remedies or costs the High Court may find to be appropriate.184

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