James Byrne BBLS

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The Regulation of On-line Video Websites: Lessons from the Audiovisual Media Services Directive

James Byrne BBLS 16th August 2010 Word Count: 14,955
(incl. footnotes, excl. bibliography and lists)

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James Byrne BBLS Table of Contents:

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TABLE OF CONTENTS:.................................................................2 ABSTRACT.................................................................................4 1. INTRODUCTION .....................................................................5 1.1 REGULATION
FOR THE AUDIOVISUAL INTERNET........................................................6

1.1.1˚ Online video websites and the law............................................7 1.1.2˚ Irish legislation relating to video websites.................................8 1.1.3˚ Non-state regulation of video websites......................................8 1.2 TECHNOLOGICAL 1.3 CAN
CHANGES AFFECTING THE SCOPE OF THE

AVMS DIRECTIVE....................9

1.2.1˚ Push or pulled content – tiers of regulation.............................11
WE STILL DEFINE ONLINE VIDEO WEBSITES SEPARATELY FROM BROADCASTER SERVICES FOR

THE PURPOSES OF THE

AVMS DIRECTIVE?.............................................................13

1.3.1˚ User Generated Content liability..............................................14 1.3.2˚ Broadcasters online.................................................................14 2. EU BROADCAST REGULATION ONLINE....................................16 2.1 AVMS DIRECTIVE
GOALS APPLIED TO THE INTERNET.............................................16

2.1.1˚ Freedom of services in the EU.................................................16 2.1.2˚ Cultural protection...................................................................17 2.1.3˚ Protection of viewers...............................................................18 2.1.4˚ Tech-neutral definitions...........................................................18 2.2 THE
RATIONALE FOR LIGHT TOUCH REGULATION....................................................19

2.2.1˚ On-demand dominance or force of design...............................19 2.3 IRELAND’S
IMPLEMENTATION.........................................................................20

3. HOW DOES THE AVMS DIRECTIVE AFFECT IRISH WEBSITE PROPRIETORS?........................................................................22 3.1 IDENTIFYING
ON-DEMAND AUDIOVISUAL MEDIA SERVICE PROVIDERS REGULATED BY THE

AVMS

DIRECTIVE ..................................................................................................22 3.1.1˚ Are you a ‘media service provider’?........................................22 3.1.2˚ Is the service within the jurisdiction of a member state of the EU?.....................................................................................................23 3.1.3˚ Is the service an ‘audiovisual media service’?.........................25 3.1.4˚ Is that audiovisual media service an ‘on-demand audiovisual media service’?..................................................................................26 3.1.5˚ Is that service exempted from regulation?..............................27 3.1.6˚ The actual scope of the regulation’s application.....................30

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James Byrne BBLS
3.2 IDENTIFYING
BY THE ONLINE TELEVISION BROADCASTING

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(WEBCASTING)
SERVICE PROVIDERS REGULATED

AVMS DIRECTIVE................................................................................31

3.2.1˚ Ambiguities in identifying regulated webcasting.....................31 3.2.2˚ Alternative definitions..............................................................32 3.3 CHANGES
FOR IRISH SERVICES PROVIDERS FOLLOWING THE

AVMS DIRECTIVE................32

3.3.1˚ Potential benefits of regulation................................................33 3.3.2˚ Restrictions imposed...............................................................33 3.3.3˚ Audiovisual commercial communications................................34 3.4 REGULATORY
REGIMES

(CO-REGULATION)

AND ENFORCEMENT....................................36

3.4.1˚ Structural regulation................................................................38 4. LESSONS FROM THE AVMS DIRECTIVE...................................39 4.1 SHORT
COMINGS OF THE REGULATION AND SOLUTIONS............................................39

4.1.1˚ Website design’s affect on the application of regulation.........39 4.1.2˚ Regulation’s affect on website design.....................................41 4.1.3˚ Unclear definition of programme.............................................41 4.1.4˚ Jurisdiction ambiguities............................................................42 4.2 FURTHER
ISSUES RELATING TO ON-LINE VIDEO WEBSITES..........................................42

4.2.1˚ Privacy of viewing history........................................................42 4.2.2˚ Screen scraping audiovisual media services...........................43 5. CONCLUSION........................................................................45 BIBLIOGRAPHY.........................................................................47 TABLE OF LEGISLATION............................................................52 TABLE OF CASES......................................................................53

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James Byrne BBLS Abstract

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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 This dissertation discusses the content regulation applicable to audiovisual services present on the internet. The particular focus of this dissertation is on the application of audiovisual regulation to Irish websites in light of the recent transposition3 of the Audiovisual Media Services Directive4 (AVMS Directive). As we move closer to the majority of television content being delivered across the internet, this dissertation notes technological changes, highlights the deficiencies of this regulation going forward and makes suggestions for future regulation.

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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James Byrne BBLS 1. Introduction

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A company wishing to set up a website similar to YouTube5 is ill advised, owing to legal concerns, to set up in Ireland. In comparison to the USA, a company in Ireland would have less protection from defamation claims,6 ill defined take down procedures,7 and ambiguity as to the application of EU audiovisual regulation. 8 Hulu is the main competitor and is unlikely to have any of these issues as all its content is regulated.9 Hulu’s service is analogous to the RTÉ Player, dealing in vetted professional content.10 Founded by NBC and News Corp with Disney buying in shortly after, Hulu is free to view and generates revenue mainly from advertisements. Hulu however attempts to restrict its content currently to the US online market largely due to licensing restrictions.11 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 6

www.youtube.com. 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. 1.1 Regulation for the audiovisual internet There is a great deal of focus in the academic discussion of regulating audiovisual content on the convergence of regulation.18 This results in the overlap of the remit of regulatory bodies and the imposition of telecommunications regulation on television broadcasters.19 This was inherent with the development of the television industry onto the internet. The AVMS Directive however goes further by applying broadcast regulation to the telecommunications industry. It does so clearly by redefining its scope from television broadcasts to audiovisual media services, as provided through an electronic communications network.20 The definition of such a network includes ‘transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by … fixed (circuit- and
in addition to websites that allow for viewing within online players. 15 E.g. 17 USC 512(f) that allows for damages for bogus copyright takedown notices. See Eric Goldman, 'Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice' (Blog Post, 26 Feb 2010) <http://blog.ericgoldman.org/archives/2010/02/standards_for_5.htm>. 16 E.g. Directive 2000/31/EC – The E-Commerce Directive. 17 www.hotline.com. 18 E.g. Damian Tambini et al, Codifying Cyberspace – Communications self-regulation in the age of Internet convergence, (Routledge, Oxfordshire 2008) 35-47; Elizabeth Newman, ‘EC Regulation of Audio-Visual Content on the Internet’ in Lilian Edwards and Charlotte Waelde (eds), Law and the Internet, (Hart, Oxford 2009) 160-1. 19 OFCOM in the UK under the Communications Act 2003 (UK) is set up to regulate both the broadcasting and telecommunication industry, and does so by designating certain industries to subsidiary bodies such as the ATVOD and the ASA. 20 Article 1 of the AVMS Directive.

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packet-switched, including Internet) and mobile terrestrial networks’.21 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 1.1.1˚ Online video websites and the law In Europe, online ‘information services’ are notably regulated under the Electronic Communications Framework Directive,24 the E-Commerce Directive,25 the Unfair Commercial Practices Directive,26 and the Misleading Advertising Directive.27 The most prolific provisions are the internet service provider’s (ISP) hosting, caching and mere-transmission immunities.28 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 22

Article 2(a) of Directive 2002/21/EC. 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. 1.1.2˚ Irish legislation relating to video websites The Irish Government has recently passed by way of statutory instrument, the European Communities (Audiovisual Media Services) Regulations 2010 (hereafter ‘S.I.’)37 transposing the AVMS Directive. Besides some typos38 the statutory instrument does a highly effective job of implementing the AVMS Directive. 39 Furthermore, the Broadcasting Act 2009 aimed to repeal all existing content regulation for television broadcasting and to consolidate all broadcasting regulation into one piece of legislation.40 In addition the Broadcasting Authority of Ireland (BAI), set up under the Broadcasting Act 2009, have compiled a considerable list of legislation potentially applying to providers of audiovisual services.41 This lists 74 Irish enactments and 34 European legislative measures alongside their respective Irish implementing instrument. The sheer volume emphasises the need for a centralised body to create a code of conduct encapsulating the regulations. This need was identified and acted on by the Irish government by implementing Regulation 13 of the S.I. as discussed below.42 1.1.3˚ Non-state regulation of video websites In Ireland the Internet Service Providers Association of Ireland (ISPAI) act as a
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 cinemastandard 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. 1.2 Technological changes affecting the scope of the AVMS Directive The market for audiovisual media services online is ripe. Some TV displays are now equipped to carry content directly from the internet. Perhaps the most advertised example currently is GoogleTV.47 Consumers are comfortable with the consumption of video online as the average viewing experience improves. New releases in both feature film48 and broadcast programming are available online.49 Mobile Wi-fi and
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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viewers57 with the viewership of a top subscribed ‘channel’ on YouTube, RayWilliamJohnson, who averages between 3 and 4 million views per twice-weekly episode.58 Although there are clear comparative differences, e.g. one is online and the other is a time-limited broadcast, this example shows the potential competition for viewership from online audiovisual content not regulated under the AVMS Directive. 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 1.2.1˚ Push or pulled content – tiers of regulation The AVMS Directive extends the scope of regulation not by direct reference to the internet but by inclusion of on-demand audiovisual media services.60 The Mediakabel case defined the boundary of television broadcasting as the initial transmission of programmes to an indeterminate number of simultaneous viewers regardless of the manner of transmission.61 This is referred to as liner or pushed content.62 Woods notes this excluded identical content supplied by individual download, even when supplied by the same company.63 This may confuse the viewer. Non-linear or pulled content, defined by ‘the viewing of programmes at the moment chosen by the user and at his individual request’,64 is now regulated separate to broadcasting, though some rules apply equally to both services,65 some are amended for on-demand services,66 and some solely apply to broadcasts.67 This further
57

RTÉ Press Centre, 'RTÉ Television continues to deliver the Most-Watched Programmes so far this Year' (Press Release, 29 July 2010) <http://www.rte.ie/about/pressreleases/2010/0729/tvmostwatched290710.html>. 58 http://www.youtube.com/user/RayWilliamJohnson. 59 S.I. Regulation 2 contains the definition of an ‘audiovisual media service’. 60 Article 1 of the AVMS Directive. 61 Case C-89/04, Mediakabel BV v Commissariaat voor de Media 2 June 2005 [33]. 62 Isik Onay, ‘Regulating webcasting- An analysis of the Audiovisual Media Services Directive and the current broadcasting law in the UK’, Computer law & security review 25 (2009) 335–351, 337. 63 Lorna Woods, ‘Jurisdiction in the Television Without Frontiers Directive’ in David Ward (ed), The European Union and the Culture Industries (Ashgate, Hampshire 2008) 149. 64 Article 1 of AVMS Directive. 65 Article 2 – jurisdiction; Article 2a (1) – freedom of reception; Article 3 – member state stricter rules; Articles 3a, 3b, 3c, 3d, 3e, 3f and 3g – general provisions incl. advertisement rules. 66 Article 2a (2) and (3) vs (4), (5) and (6) – restriction on freedom of reception; Article 22 vs Article 3h – protection of minors; Article 4 and 5 vs Article 3i – promotion of EU works. 67 Article 3j – major events rights; Article 3k – short news reports rights; Article 10, 11, 14, 15, 18, 18a,

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complicates the implementation of these regulations as the previous boundary for regulation now forms an internal boundary between regulations, while a new external limit to the regulation’s scope has been created. 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. Furthermore, advertisements for on-demand services typically have user controls disabled.68 Though not within the definition of a linear service for want of simultaneous viewing along with the general public, this may be considered pushed content. The justification for lighter regulation of on-demand services was the control and choice of a user.69 Though this remains in terms of viewing a programme at the individual request of the user, it may not be at the moment chosen by that user if it is significantly delayed by advertisements without warning. This has the unusual potential to exempt a service entirely from regulation by failing to meet the definition of an on-demand audiovisual media service. However, the phrase ‘at the moment’ is open to interpretation. For example, it is clearly to include downloaded programmes, 70 which take some amount of time to transfer to the viewer’s hard drive. In light of the ambiguity described, the following addition is to be recommended:
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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catalogue of an on-demand audiovisual media service may not exceed 20%.

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. The AVMS Directive defines regulated services as providing ‘programme’ content.74 An item is a programme where its ‘form and content is comparable to the form and content of television broadcasting’.75 It is particularly relevant that Recital 17 indicates this term is to be dynamic considering the term ‘television broadcasting’ may become redundant. The AVMS Directive goes further to say that programmes should inform, entertain or educate. Examples given include feature films, sports, sitcoms, documentaries, original drama and children’s programming. However the format of these programmes are not defined. In addition, forms of programme such as reality TV, which arguably encompass home made videos, have become a large part of our daily television scheduling.76 All that remains then is that the programme inform, entertain or educate. Again, this may include all audiovisual material.
71 72

In section 3.2. 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. 1.3.1˚ User Generated Content liability It follows that websites such as YouTube that are dominated with UGC may in fact comprise largely of programme content.78 For a linear service this may render the service regulated. Conversely, the S.I. excludes on-demand audiovisual media services that are primarily for sharing UGC, which is under the editorial control of the user, within communities of interest.79 It should be noted that editorial control differs from editorial responsibility, as defined, and speaks more to the control over the actual content, rather than its selection or organisation among other content. Websites such as YouTube who schedule additions to their catalogue of content, enforced through YouTube partnership contracts with YouTube members, may void the editorial control of the user. 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. 1.3.2˚ Broadcasters online Under the Broadcasting Act, RTÉ may now use revenue it receives from the Irish Government from licensing fees for its online activities.80 It will be interesting to note
77 78

Particularly given the exemption of private websites explained in Recital 16 of the Directive. 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. Project Canvas in the UK is the simplest example of broadcast delivery changes. BBC, ITV, BT, Channel 4 and TalkTalk together aim to deliver set-top boxes allowing customers access to on-demand services alongside linear services on their current television.84 In this system a person may select ‘TV’ on their remote to view television broadcasts. Then, selecting ‘VoD’ (Video on Demand) or something similar, a person may choose from a catalogue on a broadcaster’s website. GoogleTV on the other hand attempts to integrate online services with broadcasting by using a search feature that searches both simultaneously on a single screen.85

81 82

Responsible for maintenance of the RTÉ player, the RTÉ Guide and other activities. 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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James Byrne BBLS 2. EU Broadcast Regulation Online

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In this section, highlighted issues are explored in the application of broadcasting regulations to broadcast and on-demand audiovisual media services provided via the internet. 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 2.1 AVMS Directive goals applied to the internet What are the AVMS Directive’s goals and is it correct they be applied to content delivered via the internet? Those against regulation say regulation may stifle innovation89 and that for on-demand services, users can make informed choices negating the power of broadcasts.90 The Directive, through implementation, replies with the following aims. 2.1.1˚ Freedom of services in the EU Drawing directly from the Debauve case,91 the Television Without Frontiers Directive was passed to ensure that a broadcast service will be regulated by the country of origin, not the country of reception, thus ensuring broadcasting as a service had freedom to move within the EU.92 The E-Commerce Directive contains a country of origin principle for EU based internet services and, as noted by Newman, derogation
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) 169204, 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. 2.1.2˚ Cultural protection Recitals 5, 8, 40, 48, 49 and 50 iterate the intent to protect EU culture and audiovisual productions. Burri-Nenova highlights the prominence of this objective in international discussions.95 European works, independent works and media pluralism are promoted. Major events and news reporting are encouraged to be publicly viewable. 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 94

Elizabeth Newman, (n. 18) 163. 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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James Byrne BBLS Copyright and Related Rights Act 2000.100 2.1.3˚ Protection of viewers

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The AVMS Directive imposes rules on advertising content and placement, 101 discriminatory, pornographic and hatred material,102 rights of reply and presenting of contact information,103 and access for disabled persons.104 The bulk of these requirements apply equally to on-demand and broadcast services. Where they differ, however, their application to internet services leaves the possibility of enforcement questionable. 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. 2.1.4˚ Tech-neutral definitions The EU aimed to cover many technologies and future proof, as far as possible, these regulations with the definitions in the AVMS Directive.107 Onay notes how, in one sense, this is not achieved, i.e. different regulations apply to the same content dependent on whether the user has certain controls, control being an element of technology.108 Strictly speaking, the definitions do function neutrally towards differing technologies in terms of hardware. Software or functional controls however, may determine the application of regulation. Thus, by extension, website design may determine the application of regulation. This is considered further in section 4.1.1˚.
100 101

Section 51(2). Articles 3e, 3f, 3g, 10, 11, 14, 15, 18, 18a, 19 and 20 AVMS Directive – Regulations 6(1), 7, 8, 9 and 10 S.I. 102 Articles 3b, 3h and 22 AVMS Directive – Regulations 6(2) and 18 S.I. 103 Articles 3a and 23 AVMS Directive – Regulation 5 S.I. 104 Article 3c AVMS Directive – Regulation 12 S.I. 105 Article 3h AVMS Directive – Regulation 6(2) S.I. 106 Oliver Carsten Füg, 'Content Ratings Harmonization' in David Ward (ed), The European Union and the Culture Industries, (Ashgate, Hampshire 2008) 165-186, 170. 107 European Commission, ‘Audiovisual Media Services without Frontiers – FAQ’ (2008) MEMO/08/803, 2. 108 Isik Onay, (n. 62) 339.

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2.2 The rationale for light touch regulation Certain provisions apply in a relaxed manner to on-demand services. This may be perceived as lighter regulation for websites given that on-demand ‘catch-up’ services are provided predominately via the internet in Ireland.109 These services are neither exclusively online,110 nor the exclusive online offering.111 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 ondemand 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. 2.2.1˚ On-demand dominance or force of design The former is supported by Recital 42 of the Directive, which notes the different impact on-demand services may have on society as a justification for lighter regulation; that consumer choice and control alleviates concerns over harmful content. Newman suggests the European Commission also sought to protect newer SMEs to encourage growth.112 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
109 110

RTÉ Player, TV3 Catch-up, TG4 player. 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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not function in the same way in this system as it would in broadcast.115 Furthermore, broadcast only rules do little to directly encourage on-demand dominance. Allowing the exclusivity of major events for on-demand services does not encourage media pluralism.116 Short news reports may already be exempted by fair dealing exceptions.117 Similarly, rights of reply may be substituted with remedies for defamation for on-demand services.118 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. 2.3 Ireland’s implementation Section 3 will discuss the specific provisions of the S.I. in context. In broad terms the Broadcasting Act 2009 enacted the broadcasting regulations while the S.I. transposes the remaining unimplemented provisions of the AVMS Directive almost directly. 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.
115 116

Mira Burri-Nenova, (n. 95) 16. 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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 Article 3b: incitement to hatred – section 3 Prohibition of Incitement To Hatred Act, 1989.  Article 3e (1)(c)(ii): discrimination – sections 12-13 Equal Status Act 2000.  Article 3e(1)(d): tobacco advertisement ban – section 33 Public Health (Tobacco) Act (as amended) 2002.

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3. How Does The AVMS Directive Affect Irish Website Proprietors? As discussed, the AVMS Directive clearly is intended to regulate content delivered via the internet. Irish website proprietors must then determine if they are included in this regulation. The attempt to be tech-neutral has resulted in ambiguous lengthy definitions in the Directive. This dissertation attempts to clarify the situation for website proprietors, making suggestions for interpretations where appropriate. 3.1 Identifying on-demand audiovisual media service providers regulated by the AVMS Directive It may be surprisingly difficult for some video websites to determine if they are to be regulated by the AVMS Directive. There are 5 stages to identifying a service that is regulated as an on-demand service and they include a number of ambiguities. These are, in an attempted order, the following:120 1) Are you a ‘media service provider’? 2) Is the service within the jurisdiction of a member state of the EU? 3) Is the service an ‘audiovisual media service’? 4) Is that audiovisual media service an ‘on-demand audiovisual media service’? 5) Is that service exempted from regulation? As it stands this will exempt the vast majority of audiovisual content available online. 3.1.1˚ Are you a ‘media service provider’? Regulation 2 of the S.I. defines the MSP as ‘the person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised’. This transposes the definition from the AVMS Directive with one small amendment, the absence of the words ‘natural or legal’ before ‘person’. This makes no difference as under Irish Law the term ‘person’ includes both.121 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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selection of programmes and their organisation in either a schedule or catalogue. Isik Onay points to the fact that Recital 23 of the AVMS Directive first notes the importance of the definition of ‘editorial responsibility’ and ‘effective control’, but then goes on to allow member states to develop the definition independently.122 This seems entirely inconsistent with the object of harmonising rules within the EU. Even so, it would appear that any persistent ability to either affect a schedule or affect the organisation of a catalogue would suffice under the definition, transposed directly in the S.I. Furthermore a programme is defined as moving images (with or without sound) presented as an item within a schedule or catalogue of a MSP. The reference to a MSP may give rise to confusion when trying to define a MSP. In addition the definition of programme goes on to give an unenlightening reference to ‘children’s programmes’ as an example of programmes. The multiple layers, the circular definitions, the unhelpful examples, and the illdefined 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
122 123

Isik Onay, (n. 62) 338. 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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maintains a stable and effective link with the Irish Economy. Failing that, the MSP will find this test places it under the jurisdiction of another member state. 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. 3.1.3˚ Is the service an ‘audiovisual media service’? This definition incorporates two independent possible meanings.130 It is either an ACC as separately defined, or it is the service the MSP has editorial responsibility for.131 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 Although ACCs are included in the definition of an audiovisual media service it is simply to ensure the regulation, where it does apply, will extend to this type of communication also. Much more important then is the latter service. This service must conform to the following:  The principle purpose is to provide programmes in order to inform, entertain or educate.  The service must be available to the public by ‘electronic communications networks’ including internet, radio, satellite, mobile networks and more.  It is either a television broadcast or an on-demand audiovisual media service as defined. 3.1.4˚ Is that audiovisual media service an ‘on-demand audiovisual media service’? An on-demand audiovisual media service is an audiovisual media service provided by a MSP for the viewing of programmes ‘at the moment chosen by the user and at his or her individual request on the basis of a catalogue of programmes selected by the media service provider’.134 The viewer must therefore have the ability to choose what and when they want to watch, limited to the catalogue as and when made available by the provider. 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 the general public in order to inform, entertain or educate. This is largely repetition of the definition of an audiovisual media service and to that extent redundant also. The television-like reference aims to incorporate Recital 17 of the AVMS Directive. However, it too is redundant as the reference to programmes includes this requirement.  The service is intended for reception by, and which could have a clear impact on, a significant proportion of the general public. This mimics the definition of an audiovisual media service. It is also in fact a weak requirement in the context of the internet which is available worldwide. 3.1.5˚ Is that service exempted from regulation? Specific exclusions are set out in part (c) of the definition of an on-demand audiovisual media service.135 (i) Services, which are primarily non-economic. The aim of this provision is to exclude those services that are not competing with television broadcasting,136 in particular with respect to revenues. However online advertisement such as Google Adsense is a typical internet revenue stream and is available to anyone.137 YouTube has extended this business model with a partnership programme whereby some members generate their sole revenue from uploading videos to YouTube.138 Therefore, there is a blurred line between a MSP who uses some small advertisement revenues on a site to contribute towards hosting fees and one who generates a sustainable sole income. At what point a service ceases to be primarily non-economic will be left to a court to decide. (ii) Services not in competition with, or akin to, broadcasting services. This exception stems from Recital 16 of the AVMS Directive and aims to limit the regulation’s application to television-like services as detailed in Recital 17. The factors in Recital 17 are that the service competes for the same audience and is accessible through a means by which the user would expect regulation to apply. Developments such as GoogleTV, which aims to deliver online content, not parallel
135 136

S.I. Regulation 2. AVMS Directive Recital 16. 137 www.google.com/adsense. 138 http://www.youtube.com/partners.

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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. While a single on-demand programme on a website may be insufficient, if numerous programmes hosted on various websites are connected to a single provider, collectively this may be deemed both a catalogue and akin to broadcasting services. Furthermore, take for example a video playlist, automatically generated based on a specific algorithm and set to auto-run indefinitely, in which spot advertisements run between videos that have the skip function disabled. This is currently being employed with the YouTube Leanback system.139 When put together with a service like GoogleTV, both operated by the same company, this is both in competition with and akin to broadcasting services, particularly so given that YouTube has a great deal of programme content available. (iii) Private websites or e-mails. Following Recital 16 of the AVMS Directive, this is an attempt to limit regulation away from UGC and audiovisual content not directed at the public at large. The exclusion of e-mails seems quite straightforward, notwithstanding that Recital 18 suggests where the e-mail is sent to an unlimited number of people it may be mass media. However the term ‘private’ website is egregious at best. As Newman points out, a mass audience may view any freely available online video.140 Rather than viewership and popularity being used to define the scope of regulation, it is preferable to interpret the word ‘private’ as meaning restricted to certain users, e.g. by way of limiting viewership to a user account.141 (iv) Services consisting primarily of the hosting or distribution of content generated by third party users of the service for sharing within communities of interest, where editorial control over that content remains with such users.
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 (v) Electronic versions of newspapers and magazines. Referring to ‘electronic versions’ of newspapers and magazines, which are inherently physical objects, implies that there must be a physical version. It is likely then that these publications are already somewhat regulated in Ireland by the Press Council and Press Ombudsman. This is a co-regulatory regime under the Defamation Act 2009. Presently it is hard to imagine that such physical publications could have an audiovisual element, and thus additional audiovisual elements online are not excluded within this exemption. That fact may already be changing with technological development, e.g. newspapers sold on e-readers. However, this exemption does not specifically apply to the website itself that contains the publication, but rather the publication itself.144 It is likely this exemption was simply to reassure print media that television regulation should not apply to them. 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
142 143

Elizabeth Newman, (n. 18) 166. 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_tcm645006.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, mouseover 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. (vii) Gaming, gambling, online games, and search engines; Newman explains that this provision was to ensure the gaming industry that their services would not be regulated.146 Contained in Recital 18 of the Directive, Ireland directly transposed this provision. This also excludes search engines, which may be seen to have taken editorial responsibility for organising programmes in a catalogue. 3.1.6˚ The actual scope of the regulation’s application Although a lengthy process of determination, it would appear that the majority of Irish video websites will be exempt from regulation for want of television-like content, economic purpose, audiovisual principle purpose, or of editorial control over content. Website design will determine many of these factors and so these websites may avoid regulation. 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 ondemand 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. Additionally, various levels of regulation may be applicable to a single website proprietor should they also deliver a linear audiovisual media service

146 147

Ibid 167-8. Isik Onay, (n. 62) 349.

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3.2 Identifying online television broadcasting (webcasting) service providers regulated by the AVMS Directive The definition of a television broadcast is thankfully briefer than on-demand services. The S.I. transposes the definition of television broadcasting/broadcast as ‘an audiovisual media service provided by a media service provider for simultaneous or quasi simultaneous viewing of programmes on the basis of a programme schedule’. 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. 3.2.1˚ Ambiguities in identifying regulated webcasting Potential variations to a service may render it subject to regulation. For example a live webcam service may be a television broadcast notwithstanding amateur production values. In particular, if a person wished to perform everyday in varying ways at scheduled times and stream this from a webcam this is potentially subject to regulation.149 This is similar to Public Access Television, popularised in America in light of the First Amendment rights in their Constitution, and is being promoted in Ireland.150 If the programming is to inform, educate or entertain, which it invariably is, and is under the editorial responsibility of a MSP, then a web stream will be regulated. Further complications are created by playback design on a website. An Irish website
148 149

Case C-89/04, Mediakabel BV v Commissariaat voor de Media, 2 June 2005. 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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proprietor wishing to emulate YouTube’s success with YouTube Leanback must be wary of stricter regulations. This is not the case for YouTube as the YouTube Leanback system is personalised and not for the general public and it employs delayed download technology as opposed to streaming, which allows the user to pause and skip, so it is not simultaneous viewing.151 However a simpler design would be caught. For example, should this service be offered on the basis of a single public link to a stream of the content with controls disabled, it might then in fact be subject the stricter regulation of television broadcasts. Even if the schedule is computer generated, it is arguably in the MSP’s control as they control the algorithm used. 3.2.2˚ Alternative definitions Could there be a better way to differentiate linear and non-linear services online? The definitions of television broadcasting and on-demand services in fact currently functions quite well. They broadly conform to the current technology of streaming versus delayed download. Additionally the definitions themselves are not technology based, so variations in the standards will not affect the regulation. Thus the AVMS Directive achieves its goal in this regard. 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?
151 152

As discussed in section 1.2.1˚. BAI, ‘Licensed Operators’ (Webpage, 10 Aug 2010) <http://www.bai.ie/licensed_operators.html>. 153 Section 3.1.

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James Byrne BBLS 3.3.1˚ Potential benefits of regulation

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Foremost, as the main goal of the AVMS Directive, those regulated will benefit from the country of origin principle, which protects the freedom of services including the freedom of reception in all member states of the EU. This principle, contained in Article 2 of the AVMS Directive and applied to on-demand services, permits a MSP to solely comply with the regulation of one EU member state while providing content within the EU. This effective harmonisation opens the way for pan-European TV conglomerates,154 whilst also easing concerns of service providers whose content may be viewed in neighbouring states.155 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 3.3.2˚ Restrictions imposed The current regulations should not be considered particularly restrictive, or a high barrier to entry into the market for on-demand content. 158 In addition, avoiding regulation by establishing jurisdiction outside the EU may not be an option for SMEs due to costs, or an option for the editorially responsible person or persons for practical reasons. Though the author in this dissertation has argued for an expansion in scope of the Directive to cover a greater number of services and to include those originating from a non-EU state, the main provisions are not excessively burdensome. The majority relates to revenue streams, banning particular advertisements,159
154 155

Though this is still limited in terms of restrictive licences over content and language. Article 2 recognises a number of reasons a member state may derogate from this principle. These include public policy, public health, public security and consumer protection. In urgent cases this can be done without asking the other respective member state and informing the European Commission subject to Article 2a(5) and (6) of the AVMS Directive, a copy of Article 3(5) and (6) of the Ecommerce Directive. 156 S.I. Regulations 8, 9 and 10. 157 Ibid Regulation 5. 158 In fact it is noted that many of the regulations were simply consolidations of previous requirements under other directives. See Peggy Vlacke et al, 'Audiovisual Media Services in the EU' C&S 2008 (71) 103-118, 110-111. 159 S.I. Regulation 7.

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regulating sponsorships160 and regulating product placements.161 In this case the service provider can afford to ensure they are compliant. The regulations that potentially cost the most include: the protection of minors,162 which may require website development in response to consultations with stakeholders; the requirement to obey and participate in developing a code of conduct with the BAI;163 and to promote accessibility for disabled persons.164 Copying the approach of an established competitor in the industry however may offset these costs. The requirements lack specifics and a minimum effort appears to suffice. For example, to promote accessibility, websites with audiovisual content may allow users to submit closed captions to be displayed with videos thus meeting the requirement to ‘endeavour to ensure that their services are gradually made accessible to people with a visual or hearing disability’.165 The implementation of the remainder is trivial, free or immeasurable. They require visible contact details,166 to obey licensing arrangements,167 and to promote EU works.168 3.3.3˚ Audiovisual commercial communications Article 3e of the AVMS Directive is only slightly amended from the previous provision. However, it now applies equally to on-demand services and television broadcasting. The ban on tobacco and discriminatory ACCs was not directly transposed for on-demand services, however it is written in the Directive and has direct effect.169 Television broadcasters licensed in the Irish state through the BAI must comply with their General Commercial Communications Code170 and the Children’s Commercial Communications Code.171 These do not apply to online on160 161

Ibid Regulation 7. Ibid Regulations 8, 9 and 10. 162 Ibid Regulation 6(2). 163 Ibid Regulation 13. 164 Ibid Regulation 12. 165 S.I. Regulation 12. 166 Ibid Regulation 5. 167 Ibid Regulation 6(1). 168 Ibid Regulation 11. 169 The principle that community law may be relied upon in a member state’s courts after the date set for implementation, notwithstanding insufficient or incorrect transposition. See Case 26/62 Van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1. 170 Effective since 10th of June 2010, amended in light of the AVMS Directive following a public consultation. 171 Effective since 1st of June 2010. There are a number of other codes relating to areas other than

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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 ACCs include traditional advertisements, sponsorships and product placements. Amendments to the previous regulation include: extending the grounds for discrimination to include sex, race, ethnicity, nationality, religion/belief, disability, age or sexual orientation; mandating that ACCs shall be recognisable as such; allowing product placement in certain circumstances; and requiring codes of conduct to be developed for food and beverage commercial communications when placed alongside a children’s programme. 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. Additionally, once a service is defined as an on-demand audiovisual media service, with the provision of programmes as its principle purpose, it is the service including the peripheral parts, which are regulated.176 In light of the strict rules on sponsorship, should a randomly generated advertisement on a webpage encourage the purchase or rental of a good or service that sponsors that on-demand audiovisual media service, this may contravene the regulations.177 In this case, it may be argued that the media service did not directly encourage this behaviour due to the random nature of the advertisement. Sales of sponsorship and open advertisement space should therefore be mutually exclusive for MSPs.
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 Furthermore, MSPs of on-demand services must involve themselves in a coregulatory procedure as described immediately below. 3.4 Regulatory regimes (co-regulation) and enforcement 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 selfregulation, 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) <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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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

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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 3.4.1˚ Structural regulation Recital 15 of the AVMS Directive states that the Directive shouldn’t encourage a new system of licensing for audiovisual media services. As a practical point however, this is under consideration. The current Minister for Communications, Energy and Natural Resources, Eamon Ryan has said that by 2020 licensing fees will have to be changed in light of mobile television.185 One can’t enforce the licence when one can’t find the device capable of receiving a signal, particularly if it is very small. Raising funds alternative ways may result in new taxes. 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

184 185

S.I. Regulation 20. 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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James Byrne BBLS 4. Lessons from the AVMS Directive

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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. 4.1 Short comings of the regulation and solutions In Ireland the transposing S.I. has effectively implemented the Directive into Irish law. It is the Directive itself that leaves more to be desired. The following is a list of identified issues and suggested solution. 4.1.1˚ Website design’s affect on the application of regulation As indicated, how a website is designed may affect whether it is regulated. To some extent this should be rectified. Recitals 16-19 emphasise that the Directive aims to regulate online television broadcasting services or on-demand services in direct competition with television broadcasting. It may seem intuitive that such services would be designed a certain way, however potential MSPs may avoid regulation through the following steps. (i) Avoid providing a single stream of content available to public. Even a random selection of UGC may potentially be considered a television broadcast and fulfil the other requirements. Providing individualised feeds to each user and allowing users control of the feed, e.g. a skip function, is important. (ii) On-demand providers should avoid programmes organised in a catalogue. By using various unlinked domain names to access each programme, the creation of a catalogue may be avoided, but access to consumers maintained through a third party service such as Google search. Arguably there is little difference in requiring the user to visit www.domain1.tld and and www.domain2.tld as opposed to www.domain1.tld/programme1 www.domain1.tld/programme2. However,

editorial control over a catalogue is absent where the sites are not linked and a third party service is required to display them together. 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 Page 39 of 54

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definition of a MSP. If they are deemed an on-demand audiovisual media service, they may be responsible for content not necessarily compliant with regulations. (iii) Ensure on-demand services are from a ‘private’ website. This may be done by requiring users to genuinely identify themselves through a log-in procedure to gain access. In addition, access logs should be kept to emphasis the ‘private’ nature of a website through limited viewership. (iv) UGC hosting and distribution should be the primary service. The bulk of content provided should be created and made available by users and under their editorial control. Every commissioned addition should be offset by a larger number of UGC additions. Non-commercial content should be promoted so that the majority of views are attributed to UGC. Additionally programme content may be acquired on a third party basis from users, i.e. no commissioning contract. (v) Maintain the service as primarily non-economic. Common sense dictates that a break-even strategy, whereby only the costs of providing the service are recouped, would be deemed non-economic. Incorporation of unlimited revenue streams that earn on the basis of use, e.g. certain advertisements, may then be justified only to the extent of recouping costs. However, it is uncertain where the line is to be drawn on revenues. Potentially, selling advertisements to a total value known to be greater than running costs may render the service regulated. Without further guidance, profits on these services should be avoided. 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 Page 40 of 54

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should set guidelines for what will be deemed a private website and a primarily economic service. 4.1.2˚ Regulation’s affect on website design When regulated, a website must conform to two separate codes of conduct if both linear and on-demand services are provided.188 Minimum design requirements are: a website must label ACCs in a manner viewable with all viewing options, e.g. when in full screen mode; sponsorship sales must be separate from open advertising space sales to avoid directly encouraging the purchase or rental of goods or services of the sponsor;189 industry practice must be followed in the protection of minors; contact details must be available. 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. 4.1.3˚ Unclear definition of programme As highlighted, the term programme creates a number of issues, not least of which is a potential dichotomy of amateur versus commercial content, when production values themselves are irrelevant to the goals of the AVMS Directive. In light of the exclusions from an on-demand service in Regulation 2(1) of the S.I. the definition of a programme may be simplified to the following:
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 ondemand 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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4.1.4˚ Jurisdiction ambiguities The potential for varying jurisdiction if, for example, the majority of the workforce for a service moves intermittently between the place of editorial decision-making and the head office location, presents challenges to enforcement and uncertainties to the service provider. In light of this, service providers should be given the opportunity to nominate a location where either the head office is located, the editorial decisionmaking is done or where the workforce is located. Given the goal to harmonise laws, and Article 4 of the AVMS Directive allowing member states to enforce stricter rules, this solution would end any ambiguity. Furthermore, non-EU services benefit from a quasi-country of origin principle as they lack a jurisdiction for enforcement. Blocking and filtering this content will not suffice for aggrieved member states.190 To this end, international treaties and bi-lateral agreements are needed to enforce any level of regulation. 4.2 Further issues relating to on-line video websites This section aims to cover issues in relation to the application of AVMS Directive regulations and is not intended as a definite list of issues for providers of audiovisual content online. 4.2.1˚ Privacy of viewing history Privacy concerns associated with the internet similarly extend to audiovisual media services. Behavioural marketing based on what is watched, could give rise to breaches of privacy. In this context, the Chairman of the Federal Trade Commission in the USA, Jon Leibowitz, recently outlined two cases the FTC took highlighting the issue.191 The first was against TJ Maxx for a data loss, which resulted in tens of millions of dollars of fraudulent charges to credit and debit cards192 and the second was against Sears who enticed customers to download a program to track all their internet use, compiling vast quantities of private data. 193 In Europe the issues are just
190 191

As blocking technology is imperfect, see Weiliang Nie, (n. 56). Jon Leibowitz, ‘Where’s the Remote? Maintaining Consumer Control in the Age of Behavioral Advertising’ (The Cable Show 2010, 12 May 2010) <http://www.ftc.gov/speeches/leibowitz/100512nctaspeech.pdf>. 192 Jon Leibowitz (n. 191) 2. 193 Ibid 3.

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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 4.2.2˚ Screen scraping audiovisual media services In the context of audiovisual regulation the position for screen scraping is simple. 197 The person who scrapes the content is not a MSP as they do not have editorial control and therefore not liable for breach of the AVMS Directive’s provisions.198 This includes the likes of JustinTV199 where users stream television broadcasts.200 Furthermore if the original service was under regulation, it is likely that the screen scraped service is compliant with the regulations. 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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Inc., Case No. C 08-05780 (N.D. Cal. July 20, 2010).

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James Byrne BBLS 5. Conclusion

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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. However, the AVMS Directive itself is lacking. It fails to regulate a majority of audiovisual services that increasingly compete with television broadcasting, not just in terms of content but also in terms of delivery. Moreover, it fails to address audiovisual services entering the EU market from external markets and does little to promote on-demand EU-works. These are all areas the Directive sought to address.202 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.

promote the offline offering. 204 Currently licensors are forced by broadcasters to provide designated online licenses (though restricted) in order to sell the lucrative broadcasting rights. Licensors benefit from doing so by gaining support from respective organisation to aid in fighting piracy, for example by requiring them to file takedown notices for identified infringing copies. 205 Some foreign profits may be repatriated back to the EU market. YouTube already encourages independent producers by offering awards for popular content. Brian Morrissey, 'Google Sets Up YouTube Grant Program for Content Creators' Media Week (9 July 2010) <http://www.mediaweek.com/mw/content_display/news/digitaldownloads/broadband/e3i637c45eb15b9f7a368a66ad779ebf8c7>. 206 Demand will remain for content created in the recipients language, for a plurality in programming such as news coverage, for local programming in current affairs, drama and sport and for many other reasons. MSPs like RTÉ, who commission content, might maintain an exclusive license. Additionally MSPs perform the value-adding functions of vetting content and grouping content for certain tastes. 207 Labelling systems should be developed and mandated to indicate the country of origin, alongside media literacy campaigns to inform of notable differences in regulation E.g. allowing advertisements of prescription drugs. See Julie M Donohue et al, 'A Decade of Direct-to-Consumer Advertising of Prescription Drugs' NEJM (2007) 357, 673-81, 674.

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James Byrne BBLS Bibliography Books 

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Damian Tambini et al, Codifying Cyberspace – Communications selfregulation in the age of Internet convergence, (Routledge, Oxfordshire 2008). Elizabeth Newman, ‘EC Regulation of Audio-Visual Content on the Internet’ in Lilian Edwards and Charlotte Waelde (eds), Law and the Internet, (Hart, Oxford 2009). Jeanne Pia Mifsud Bonnici, Self-Regulation in Cyberspace, (T.M.C. Asser Press, The Hague 2008). Jonathan Zittrain, The Future of the Internet - And How to Stop It (New Haven, Yale University Press 2008. Laurence Lessig, Code - Version 2.0, 2nd ed. (New York, BasicBooks 2006). Lilian Edwards and Charlotte Waelde (eds), Law and the Internet, (Hart, Oxford 2009). Lorna Woods, ‘Jurisdiction in the Television Without Frontiers Directive’ in David Ward (ed), The European Union and the Culture Industries (Ashgate, Hampshire 2008). Oliver Carsten Füg, 'Content Ratings Harmonization and the Protection of Minors in the European Information Society' in David Ward (ed), The European Union and the Culture Industries: Regulation and the Public Interest, (Ashgate, Hampshire 2008). Philip Wood, Principles of International Insolvency, 2nd Ed (Suffolk, Thomson 2007). Susan Murray and Laurie Ouellette, Reality TV: Remaking Television Culture (2nd edn NYU Press, New York 2009).

 

Articles  Alison J. Harcourt, ‘Institution-driven Competition – The Regulation of Crossborder Broadcasting in the EU’ Journal of Public Policy (2007) 27, 293-317.  Dr. Georgios I. Zekos, ‘State Cyberspace Jurisdiction and Personal Cyberspace Jurisdiction’ International Journal of Law and Information Technology Vol. 15 No. 1 (2007).

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James Byrne BBLS 

jamesddbyrne@gmail.com

Isik Onay, ‘Regulating webcasting- An analysis of the Audiovisual Media Services Directive and the current broadcasting law in the UK’, Computer law & security review 25 (2009) 335–351. Jacob Rowbottom, 'Media Freedom and Political Debate in the Digital Era' Modern Law Review 2006, 69(4) 489-513. Jong Park, 'Subscriber authentication technology of AAA mechanism for mobile IPTV service offer' Telecommunications Systems (Sep 2010) Vol 45(1) 37-45. Juan P. Artero, 'Online Video Business Models: YouTube vs. Hulu' (2010) Palabra Clave, 13(1) 111-123. Julie M Donohue et al, 'A Decade of Direct-to-Consumer Advertising of Prescription Drugs' The New England Journal Of Medicine (2007) 357, 67381. Luca Tiberi and Michele Zamboni, ‘Liability of Service Providers’ (2003) Computer & Telecommunications Law Review 9(2) 49-58. Mira Burri-Nenova, 'Cultural Diversity and the EC Audiovisual Media Services Directive - Beyond the Handsome Rhetoric' NCCR Trade Reg WP (2009-09). Mira Burri-Nenova, ‘The Reform of the EC Audiovisual Media Regulation Television Without Cultural Diversity’ (NCCR Trade Regulation W.P. No. 2007-06, 1 March 2007) International Journal of Cultural Property, 2007 14(2) 169-204. Miroslaw Czyrnek et al, 'Large-scale multimedia content delivery over optical networks for interactive TV services' Future Generation Computer Systems (Oct 2006) Vol 22(8) 1018-1024. Monica Arino, ‘Content regulation and new media: a case study of online video portals communication and strategies’ Communications and Strategies 2007 (66) 115. Peggy Vlacke et al, 'Audiovisual Media Services in the EU: Next Generation Approach or Old Wine in New Barrels?' Communications & Strategies 2008 (71) 103-118. Susan Hesemeier, Streaming Video Theory, Literary and Linguistic Computing, Vol. 21, Suppl Issue, 2006, 67-75.

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Takashi Shimizu et al, 'International real-time streaming of 4K digital cinema' Future Generation Computer Systems (Oct 200) Vol 22(8) 929-939.

Reports  ComReg, 'Residential ICT Services Survey Q2 2010' (5 Aug 2010) Ref No 10/62.  European Commission, ‘Audiovisual Media Services without Frontiers – FAQ’ (2008) MEMO/08/803.   Hotline, 2009 Annual Report, (Dublin 2009). House of Lords, 'European Union - Third Report' (EU Committee Publication, 23 Jan 2007) <http://www.publications.parliament.uk/pa/ld200607/ldselect/ldeucom/27/271 0.htm>.  OECD Working Party on Communication Infrastructure and Services Policy, ‘IPTV: Market Developments and Regulatory Treatment’ (19 Dec 2007) DSTI/ ICCP/CISP(2006)5/FINAL.    RTÉ, ‘Corporate Responsibility 2009’ Report (Dublin, 2010). RTÉ, 2008 Annual Report (Dublin 2008). 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. Internet Resources  BAI, ‘Licensed Operators’ (Webpage, 10 Aug 2010) <http://www.bai.ie/licensed_operators.html>.  BBC Entertainment News, ‘Project Canvas Approved by BBC Trust’ BBC News (London, 25 June 2010) <http://www.bbc.co.uk/news/10414215>.  Brian Morrissey, 'Google Sets Up YouTube Grant Program for Content Creators' Media Week (9 July 2010) <http://www.mediaweek.com/mw/content_display/news/digitaldownloads/broadband/e3i637c45eb15b9f7a368a66ad779ebf8c7 >.  Conor Pope, 'Nice Trackie, Sue' The Irish Times (Dublin 7 June 2010) <http://www.irishtimes.com/newspaper/pricewatch/2010/0607/122427199969 Page 49 of 54

James Byrne BBLS 7.html> 

jamesddbyrne@gmail.com

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-thechildren/>. Eric Goldman, 'Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice' (Blog Post, 26 Feb 2010) <http://blog.ericgoldman.org/archives/2010/02/standards_for_5.htm> John Collins, 'Mobile Broadband Gathers Speed' The Irish Times (Dublin, 4 July 2010) <http://www.irishtimes.com/newspaper/finance/2010/0604/1224271808931.ht ml>. Jon Leibowitz, ‘Where’s the Remote? Maintaining Consumer Control in the Age of Behavioral Advertising’ (The Cable Show 2010, 12 May 2010) <http://www.ftc.gov/speeches/leibowitz/100512nctaspeech.pdf>. 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>. Minister Eamonn Ryan, ‘The Future of Media’ (Speech, 27 April 2010) <http://www.youtube.com/watch?v=k-17LlO3Tjg>. RTÉ Press Centre, 'RTÉ Television continues to deliver the Most-Watched Programmes so far this Year' (Press Release, 29 July 2010) <http://www.rte.ie/about/pressreleases/2010/0729/tvmostwatched290710.html >. 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>. 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.ht ml>. TJ McIntyre, 'Think tank: web firms aren’t liable to stay' The Sunday Times

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James Byrne BBLS (London, 28 February 2010)

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<http://www.timesonline.co.uk/tol/news/world/ireland/article7043718.ece>  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>.  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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James Byrne BBLS 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

jamesddbyrne@gmail.com

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) 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 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 US Legislation and Constitution    EU Legislation  

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James Byrne BBLS International Treaties   Convention on Cybercrime Treaty of the European Union Table of Cases Irish Case Law 

jamesddbyrne@gmail.com

Ryanair Ltd v Billigfluege.de [2010] IEHC 47 (2010)

English Case Law  UEFA & ors v Briscomb & ors [2006] EWHC 1268

ECJ Case Law    Case 26/62 Van Gend & Loos v Netherlands Inland Revenue [1963] ECR 1 Case 33/74 Binsbergen (1974) ECR 1299 Case 52/79 Procureur du Roi v Marc J.V.C. Debauve and others [1980] ECR 0833    Case C-212/97 Centros [1999] ECR I-1459 Case C-221/89 Factortame (1991) ECR I-3905 (25 July 1991) Case C-222/07 UTECA v. Administración General del Estado (ECJ 5 March 2009)   Case C-23/93 TV 10 SA (1994) ECR I-4795 Case C-89/04, Mediakabel BV v Commissariaat voor de Media, (2 June 2005)

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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