The Progress & Freedom Foundation Blog

After a short introduction from ICRA's Stephen Balkam, we began the event by hearing from Europe's most important public official dealing with these matters: EU Commissioner Viviane Reding, Commissioner for Information Society and Media. For Americans unfamiliar with European politics, I suppose her position would be tantamount to a FCC Commissioner, the Secretary of the Department of Commerce, and even a bit of U.S. Senator--all rolled into one single position.

Commissioner Reding began by noting that "Everyone agrees we need to protect children, but how do we do it and where do we draw the line?" A good question, and one that we spent the rest of the day discussing. In her formal remarks, she argued that it is essential for government to take steps to secure basic human rights in this area, such as those defined at the World Summit on Information Society, which took place in Tunis last November: freedom of expression and opinion; freedom to receive and access information; and an open, accessible information society. But, she countered, all freedoms have their limits, especially when they might have a negative effect on children.

Her first example of the need for such limits on speech / expression involved "hate speech" and Holocaust denial. She noted that Europeans have long accepted limits on hate speech (especially of a racist nature) and I noticed many heads in the room nodding as if to say "Yes, that's a given." Of course, it goes without saying that over here in the United States we have a very different perspective on "hate speech." Generally speaking, we frown upon such idiocy but extend to it the full protection of the law. The remedy to hateful speech, most Americans seem to believe, is more and better speech to counter such stupidity. Thus, we let white supremacist KKK knuckleheads spew their idiocy in America because we know they will be roundly denounced as morons and isolated from society accordingly. Then again, while we reject government efforts to regulate such "hate speech" here in the States, there are other forms of speech of expression that we seek to censor in the name of "protecting children" that Europeans find a bit silly. Perhaps most famously, a brief flash of a woman's breast results on television here in the States results in record fines for broadcasters and a dramatic ramping up of Federal Communications Commission (FCC) regulation of "indecent" speech on TV and radio. Europeans laugh out loud about that (and they did so several times when I was conversing with them over dinner and drinks). Such a thing hardly raises an eyebrow on the other side of the Atlantic. Thus, cultural differences are important and neither side can cast the first stone when it comes to bragging about being more open to different types of speech and expression.

Anyway, Reding went on to outline what would end up being the focus of much of the day's discussion: Europe's various models of "co-regulation." Indeed, throughout the day, we heard various descriptions of this with labels such as "conditioned self-regulation" and "regulated self-regulation." Although those terms sound terribly oxymoronic to me, the logic behind them is fairly straight-forward: Government steers and industry rows. That is, government establishes some baseline content objectives in terms of what must be done to protect children and then industry devises policies or provides parents with tools to accomplish those goals. Or, as Commission Reding noted, co-regulation can mean government will let the industry led but act as a back-stop if necessary: "A co-regulatory system is one where public authorities accept that the protection of societal values can be left to self-regulatory mechanisms and codes of conduct, but where they reserve the right to step in case that self-regulation should prove to be inefficient."

Of course, what sounds simple in theory proves to be anything but in practice. Governments can have a wide variety of objectives and often the distinction between steering and rowing becomes irrelevant as it all ends in more restrictions and speech and expression. This seems to be the case with the EU's new "audio-visual directive," which Commissioner Reding spent much time discussing. This new directive, which is more formally known as the "TV Without Frontiers" initiative, (in Reding's words), "propose(s) that there should be certain basic rules which should be applicable to all audiovisual content services, whatever the delivery platform - - whether free-to-air television, cable or satellite TV, or the increasing variety of services available over the Internet and mobile phones." She argued that this new model was essential to deal with the reality of modern media convergence.

But during Q&A, Ms. Reding was inundated with questions about how it will all work in practice. For example, several participants inquired about the attempt to distinguish between video-on-demand content (a supposed "non-liner" type of content that she said would remain unregulated) and other forms of video programming (which would remain subject to regulation under the plan). Indeed, ICRA's Stephen Balkam, who had his video i-Pod sitting in front of him, showed Commissioner Reding a clip from ABC's "Desperate Housewives" that he had downloaded from the Internet for a few dollars. But he pointed out that he could also watch the show over broadcast television or on DVD. So, he asked, will "Desperate Housewives" be regulated the same way or differently on all 3 platforms? Commissioner Reding didn't really provide Stephen and the audience with a clear answer, and when challenged with similar questions from other participants it became obvious to me that the devil will be in the (regulatory) details.

Similar concerns about the directive prompted my PFF colleague Patrick Ross to suggest that the net effect (excuse the pun) of the EU's new directive might be "Internet Regulation without Frontiers." Patrick has penned two excellent in-depth studies on the directive outlining his concerns. In one of them he noted that "It is exceedingly unclear when a service or service provider is a "linear" or "non-linear" provider..." Indeed, that seemed to be the consensus view at the conference in Brussels this week.

Of course, this exact same debate is taking place in the U.S. right now and our policymakers don't have any concrete answers either. Indeed, as I pointed out in my address after Commission Reding finished speaking, my favorite example of how convergence is challenging traditional regulatory assumptions and paradigms involves last year's big "Live 8" concert. All of the Live 8 concerts were shown on AOL's website at no charge while portions of the show were broadcast on MTV and then also rebroadcast on ABC's network television stations. The ABC broadcast of the concert netted 2.9 million viewers, while the MTV broadcast drew 1.5 million. But the AOL webcast of the event attracted a far more impressive 5 million unique visitors. This led media analyst Tom Wolzien to predict that "History may well say," that this was the day that the Net truly "became a mass distribution medium." Likewise, The New York Times referred to it as "a watershed event in the development of Internet video."

Interestingly, the concert featured a performance by the rock group The Who that included a profanity (the "F-word"). Although the rebroadcast of the concert on ABC's broadcast television affiliates was on a tape delay, the network and its stations failed to edit the fleeting explicative out of the broadcast. The Parents Television Council, which routinely petitions the FCC for increased broadcast regulation, immediately filed a complaint with the FCC requesting that ABC to be fined for the incident, but nothing was said by the group about the cable, satellite or Internet broadcast even though it fetched so many more viewers.

So, I asked the crowd in Brussels, how would this incident be dealt with using the new EU model that Reding outlined? In particular, were the AOL "broadcasts" linear or non-linear? People could download them without charge from the AOL website so one could argue that that makes it linear. Then again, you did have to take steps to download it (probably through a broadband connection you paid good money for) so would that it "non-linear"?

Moving on, I next argued that media convergence isn't the only thing putting a strain on traditional regulatory systems. I also pointed out that the sheer scale, scope and volume of modern media poses a major challenge for regulators. In our generation, we have witnessed the death of geography as a limiting factor in terms of human communications; national borders no longer as meaningful as they once were. Thus, all media platforms today are being built or reconfigured with the expectation of have a global audience or customer base. And there is no "turning off" media anymore; we live in an "always-on," "always connected" world. What that means is that the sheer volume of media content out there for either government or parents to deal with has become absolutely overwhelming.

Third, I argued that beyond convergence and the "scale-scope-volume" problem, regulators now face a world in which humans create almost as much media as they consume. The combination of cell phones, digital cameras, camcorders, blogs, social networking websites, and faster Internet connections means that every man, woman and child on the planet can be a one-person publisher or broadcaster. This is a radical change in the way the world works and has dramatically decreased the power of media players to act as information intermediaries or gatekeepers. Therefore, I noted, in a world of user-generated content, some parents feel that the more serious problem they face today is not what children can watch or download but instead what they can upload about themselves or others.

After I wrapped up, we turned to several panel discussions. The rest of the conference was off-the-record, however, in order to encourage a more frank, robust exchange of views (especially from public officials who were there with us). Consequently, I can't relay what everyone had to say directly, but as I've already pointed out, the focus was mostly on the many hybrid models of "co-regulation" being discussed or implemented throughout the EU. And, again, there was much confusion about how all these models would work.

We did, however, hear how the ICRA labeling system has already being authorized by the German Commission for the Protection of Minors as an accepted form of co-regulation. (If you can read German, see "ICRA Deutschland" website here). Also, we heard about the NICAM's (Netherlands Institute for the Classification of Audiovisual Media) "Kijkwijzer" labeling system for audio-visual media, which apparently has been quite successful in terms of consumer awareness. Likewise, an official from Ofcom (the UK's communications office) discussed their extensive media literacy efforts and Internet safety awareness efforts.

More generally, there was some discussion about various parental control options (especially TiVos and personal video recorders) that were making it easier for industry to empower parents to self-regulate content that comes into the home. In particular, there was much discussion about the potential to use various new technologies to "map on" a pre-established set of values or filters. For example, as I wrote about in my recent paper on parental controls, here in the U.S., TiVo recently announced a partnership with the Parents Television Council, the Parents Choice Foundation and Common Sense Media to jointly develop "TiVo KidZone." Using ratings and information created by those groups, KidZone will allow parents to filter and record on that content that parents deem appropriate for their children. In a similar fashion, several conference participants hoped that this model could be extended to Internet browsers and web content to give parents the ability to tap filtering or labeling tools that match their own preferences. This led to a brief discussion of the potential of the "semantic web" to solve many of the problems we were discussing.

In conclusion, what I learned from this week's Brussels conference is that the concerns and issues regarding objectionable media content and parental controls are remarkably similar on both sides of the Atlantic. As Commissioner Reding noted, "There may well be disagreements between America and Europe about where exactly to draw the line... however, if you take a broader world view, the similarities of approach in democratic countries are obviously much greater than the differences." Indeed, that appears to be the case. But drawing that line will remain a difficult, contentious task.