Category Archives: Research

ILPC launches new report: ‘Protecting Sources and Whistleblowers in the Digital Age’

front-page-snippet-download-the-reportThe emergence of an everyday digital culture and the increasing use of legal instruments by state actors to collect and access communications data has led to growing concern about the protection of journalistic sources and whistleblowers.

With the support of Guardian News and Media, the Information Law and Policy Centre has published a new report to consider these developments entitled ‘Protecting Sources and Whistleblowers in the Digital Age’. The report is open access and available for download.

Authored by Dr Judith Townend and Dr Richard Danbury, the report analyses how technological advances expose journalists and their sources to interference by state actors, corporate entities or individuals.

The report also looks at how journalists can reduce threats to whistleblowing; examines the rights and responsibilities of journalists, whistleblowers and lawmakers; and makes a number of positive recommendations for policymakers, journalists, NGOs and researchers.

The report’s findings are based on discussions with 25 investigative journalists, representatives from relevant NGOs and media organisations, media lawyers and specialist researchers in September 2016.

Protecting Sources and Whistleblowers in the Digital Age was officially launched on 22 February 2017 at the House of Lords.

Alongside the report, the Information Policy Law and Policy Centre has also published a range of open access resources on journalistic sources and whistleblowing which are available here.

Information Law and Policy Centre appoints new director

n__ni_loideain new director of the Information Law and Policy CentreDr Nora Ni Loideain, a scholar in governance, human rights and technology, has been appointed director of the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies (IALS), one of nine research institutes of the School of Advanced Study, University of London.

Currently a postdoctoral research associate for the technology and democracy project at the University of Cambridge’s Centre for Research in the Arts, Social Sciences and Humanities (CRASSH), Dr Ni Loideain takes up her new role at IALS in May.

The Information Law and Policy Centre opened in 2015. Its mission is to extend the institute’s research into how law both restricts and enables the sharing and dissemination of different types of information and provide a physical and virtual meeting place for those active in the area.

Issues the Centre will look at include data access and ownership rights, privacy and confidentiality, the malicious use and misuse of data, freedom of information and legal publishing (both commercial and free-to-internet). It is also interested in trends in scholarly communication relating to legal studies.

Dr Ni Loideain was awarded her PhD in law from the University of Cambridge. Her doctoral research examined the impact of the ‘right to privacy’ on the EU Data Retention Directive which mandated the mass retention of EU citizens’ communications metadata for national security and law enforcement purposes.

Previously she clerked for the Irish Supreme Court and was a legal and policy officer for the Office of the Director of Public Prosecutions of Ireland. Her research interests and publications focus on governance, human rights and technology, particularly in the fields of digital privacy, data protection and state surveillance.

She is also an affiliated lecturer at the Cambridge Faculty of Law, a visiting lecturer for the LL.M. Privacy and Information Law module at King’s College London and a senior research fellow at the University of Johannesburg’s Faculty of Humanities.

‘The institute welcomes Dr Ni Loideain to contribute to this dynamic area of interdisciplinary research on information law and policy which affects everyone’s daily life,’ says Jules Winterton, director of the Institute of Advanced Legal Studies.

‘Under Dr Ni Loideain’s leadership the Centre will provide a base for important and timely academic activity in this area, pursuing its own research and also aligning with the institute’s mission to promote and facilitate the research of others in the UK and beyond.’

Commenting on her new role, Dr Ni Loideain confirms she is ‘delighted to have been appointed as the director of the Information Law and Policy Centre. I look forward to continuing to contribute to the excellent work of the Centre and to carry on the successes of the previous director, Dr Judith Townend.’

Call for Papers: Deadline 27/1: 4th Winchester Conference on Trust, Risk, Information and the Law

Date: Wednesday 3 May 2017
Venue: West Downs Campus, University of Winchester, Hampshire, UK
Book Online at University of Winchester Events

The Fourth Interdisciplinary Winchester Conference on Trust, Risk, Information and the Law (#TRILCon17) will be held on Wednesday 3 May 2017 at the West Downs Campus, University of Winchester, UK.  The overall theme for this conference will be:

Artificial and De-Personalised Decision-Making: Machine-Learning, A.I. and Drones

The keynote speakers will be Professor Katie Atkinson, Head of Computer Science, University of Liverpool, an expert in Artificial Intelligence and its application to legal reasoning, and John McNamara, IBM Senior Inventor, who will speak on ‘Protecting trust in a world disrupted by machine learning’.

Papers and Posters are welcomed on any aspect of the conference theme.  This might include although is not restricted to:

  • Machine learning and processing of personal information;
  • Artificial intelligence and its application to law enforcement, legal reasoning or judicial decisions;
  • Big Data and the algorithmic analysis of information;
  • Implications of the Internet of Things;
  • Machine based decision-making and fairness;
  • Drone law and policy;
  • Trust and the machine;
  • Risks of removing the human from – or leaving the human in – the process;
  • Responsibility, accountability and liability for machine-made decisions.

The conference offers a best poster prize judged against the following criteria: 1) quality, relevance and potential impact of research presented 2) visual impact 3) effectiveness of the poster as a way of communicating the research.

Proposals for workshops are also welcome.  Workshops offer organisers the opportunity to curate panels or research/scholarship activities on an aspect of the conference theme in order to facilitate interdisciplinary discussion.

This call for papers/posters/workshops is open to academics, postgraduate students, policy-makers and practitioners, and in particular those working in law, computer science & technology, data science, information rights, privacy, compliance, statistics, probability, law enforcement & justice, behavioural science and health and social care.

Abstracts for papers are invited for consideration.  Abstracts should be no more than 300 words in length.  Successful applicants will be allocated 15-20 minutes for presentation of their paper plus time for questions and discussion.

Abstracts for posters are invited for consideration.  Abstracts should be no more than 300 words in length.  Please note that accepted poster presenters will be required to email an electronic copy of their poster no later than a week before the conference.  Accepted poster presenters will also need to deliver the hard copy of their poster to the venue no later than 9am on the date of the conference to enable it to be displayed during the day.

Workshop proposals should summarise the workshop theme and goals, organising committee and schedule of speakers, panels and/or talks.  Proposals should be no more than 500 words.  Workshops should be timed to be 1.5-2 hours in length.

Abstracts and proposals, contained in a Word document, should be emailed to trilcon17@winchester.ac.uk.  Please include name, title, institution/organisation details and email correspondence address.  The deadline for submission of abstracts/proposals is Friday 27 January 2017.  Successful applicants will be notified by 17 February 2017.  Speakers/poster presenters/workshop organisers will be entitled to the early registration discounted conference fee of £80 and will be required to book a place at the conference by 28 February in order to guarantee inclusion of their paper/poster/workshop.

Speakers will be invited to submit their paper for inclusion in a special edition of the open access eJournal, Information Rights, Policy & Practice.

To book a place at the conference, please click here to visit the Winchester University Store and click on academic conferences.

For more information, please contact the conference team at trilcon17@winchester.ac.uk

‘Tracking People’ research network established

Tracking People Research NetworkA new research network has been established to investigate the legal, ethical, social and technical issues which arise from the use of wearable, non-removable tagging and tracking devices.

According to the network’s website, tracking devices are increasingly being used to monitor a range of individuals including “offenders, mental health patients, dementia patients, young people in care, immigrants and suspected terrorists”.

The interdisciplinary network is being hosted at the University of Leeds and aims to foster “new empirical, conceptual, theoretical and practical insights into the use of tracking devices”.

The network is being coordinated by Professor Anthea Hucklesby and Dr Kevin MacNish. It will bring together academics, designers, policy-makers and practitioners to explore critical issues such as:

  • privacy;
  • ethics;
  • data protection;
  • efficiency and effectiveness;
  • the efficacy and suitability of the equipment design;
  • the involvement of the private sector as providers and operators;
  • the potential for discriminatory use.

Readers of the Information Law and Policy Centre blog might be particularly interested in a seminar event scheduled for April 2017 which will consider the “legal and ethical issues arising from actual and potential uses of tracking devices across a range of contexts”.

For further information, check out the network’s website or email the team to join the network.

Full Programme: Annual Workshop and Evening Lecture

Restricted and Redacted: Where now for human rights and digital information control?

The full programme for the Information Law and Policy Centre’s annual workshop and lecture on Wednesday 9th November 2016 is now available (see below).

For both events, attendance will be free of charge thanks to the support of the IALS and our sponsor, Bloomsbury’s Communications Law journal.

To register for the afternoon workshop please visit this Eventbrite page.
To register for the evening lecture please visit this Eventbrite Page.

Please note that for administrative purposes you will need to book separate tickets for the afternoon and evening events if you would like to come to both events.

PROGRAMME

10.45am: REGISTRATION AND COFFEE 

11.15am: Welcome

  • Judith Townend, University of Sussex
  • Paul Wragg, University of Leeds
  • Julian Harris, Institute of Advanced Legal Studies, University of London

11.30am-1pm: PANEL 1 – choice between A and B

Panel A: Social media, online privacy and shaming

Chair: Asma Vranaki, Queen Mary University of London

  1. David Mangan, City, University of London, Dissecting Social Media: Audience and Authorship
  2. Marion Oswald, Helen James, Emma Nottingham, University of Winchester, The not-so-secret life of five year olds: Legal and ethical issues relating to disclosure of information and the depiction of children on broadcast and social media
  3. Maria Run Bjarnadottir, Ministry of the Interior in Iceland, University of Sussex, Does the internet limit human rights protection? The case of revenge porn
  4. Tara Beattie, University of Durham, Censoring online sexuality – A non-heteronormative, feminist perspective

Panel B: Access to Information and protecting the public interest

Chair: Judith Townend, University of Sussex

  1. Ellen P. Goodman, Rutgers University, Obstacles to Using Freedom of Information Laws to Unpack Public/Private Deployments of Algorithmic Reasoning in the Public Sphere
  2. Felipe Romero-Moreno, University of Hertfordshire, ‘Notice and staydown’, the use of content identification and filtering technology posing a fundamental threat to human rights
  3. Vigjilenca Abazi, Maastricht University, Mapping Whistleblowing Protection in Europe: Information Flows in the Public Interest

1-2pm: LUNCH 

2-3.30pm: PANEL 2 – choice between A and B

Panel A: Data protection and surveillance

Chair: Nora Ni Loideain, University of Cambridge

  1. Jiahong Chen, University of Edinburgh, How the Best Laid Plans Go Awry: The (Unsolved) Issues of Applicable Law in the General Data Protection Regulation
  2. Jessica Cruzatti-Flavius, University of Massachusetts, The Human Hard Drive: Name Erasure and the Rebranding of Human Beings
  3. Wenlong Li, University of Edinburgh, Right to Data Portability (RDP)
  4. Ewan Sutherland, Wits University, Wire-tapping in the regulatory state – changing times, changing mores

Panel B: Technology, power and governance

Chair: Chris Marsden, University of Sussex

  1. Monica Horten, London School of Economics, How Internet structures create closure for freedom of expression – an exploration of human rights online in the context of structural power theory
  2. Perry Keller, King’s College, London, Bringing algorithmic governance to the smart city
  3. Marion Oswald, University of Winchester and Jamie Grace, Sheffield Hallam University, Intelligence, policing and the use of algorithmic analysis – initial conclusions from a survey of UK police forces using freedom of information requests as a research methodology
  4. Allison Holmes, Kent University, Private Actor or Public Authority? How the Status of Communications Service Providers affects Human Rights

3.30-5pm: PANEL 3 – choice between A and B

Panel A: Intermediary Liability

Chair: Christina Angelopoulos, University of Cambridge

  1. Judit Bayer, Miskolc University, Freedom and Diversity on the Internet: Liability of Intermediaries for Third Party Content
  2. Mélanie Dulong de Rosnay, Félix Tréguer, CNRS-Sorbonne Institute for Communication Sciences and Federica Giovanella, University of Trento, Intermediary Liability and Community Wireless Networks Design Shaping
  3. David Rolph, University of Sydney, Liability of Search Engines for Publication of Defamatory Matter: An Australian Perspective

Panel B: Privacy and anonymity online

Chair: Paul Wragg, University of Leeds

  1. Gavin Phillipson, University of Durham, Threesome injuncted: has the Supreme Court turned the tide against the media in online privacy cases?
  2. Fiona Brimblecombe, University of Durham, European Privacy Law
  3. James Griffin, University of Exeter and Annika Jones, University of Durham, The future of privacy in a world of 3D printing

5-6pm: TEA BREAK / STRETCH YOUR LEGS

6-8pm: EVENING LECTURE AND DRINKS

Lecture Title: Heads and shoulders, knees and toes (and eyes and ears and mouth and nose…): The impact of the General Data Protection Regulation on use of biometrics.

Biometrics are touted as one of the next big things in the connected world. Specific reference to biometrics and genetic data has been included for the first time in the General Data Protection Regulation. How does this affect existing provisions? Will the impact of the Regulation be to encourage or to restrict the development of biometric technology?

  • Speaker: Rosemary Jay, Senior Consultant Attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice.
  • Chair: Professor Lorna Woods, University of Essex
  • Respondents: Professor Andrea Matwyshyn, Northeastern University and Mr James Michael, IALS

Information Law and Policy Centre Annual Lecture and Workshop

An afternoon workshop and evening lecture to be given by leading information and data protection lawyer Rosemary Jay.

Restricted and Redacted: Where now for human rights and digital information control?

The Information Law and Policy Centre is delighted to announce that bookings are now open for its annual workshop and lecture on Wednesday 9th November 2016, this year supported by Bloomsbury’s Communications Law journal.

For both events, attendance will be free of charge thanks to the support of the IALS and our sponsor, although registration will be required as places are limited.

To register for the afternoon workshop please visit this Eventbrite page.

To register for the evening lecture please visit this Eventbrite Page.

Please note that for administrative purposes you will need to book separate tickets for the afternoon and evening events if you would like to come to both events.

AFTERNOON WORKSHOP/SEMINAR 
11am – 5pm (lunch and refreshments provided)

For the afternoon part of this event we have an excellent set of presentations lined up that consider information law and policy in the context of human rights. Speakers will offer an original perspective on the way in which information and data interact with legal rights and principles relating to free expression, privacy, data protection, reputation, copyright, national security, anti-discrimination and open justice.

We will be considering topics such as internet intermediary liability, investigatory and surveillance powers, media regulation, freedom of information, the EU General Data Protection Regulation, whistleblower protection, and ‘anti-extremism’ policy. The full programme will be released in October.

EVENING LECTURE BY ROSEMARY JAY, HUNTON & WILLIAMS
6pm-7.30pm (followed by reception)

The afternoon workshop will be followed by a keynote lecture to be given by Rosemary Jay, senior consultant attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice. Continue reading

The socio-legal aspects of 3D printing: Between “chaos” and “control”

Socio-legal aspects bookNot so long ago 3D printing was being discussed alongside the internet, file sharing and digital currencies as a sign of the beginning of an era of post-control and post-scarcity.

There were fears that governments would struggle to regulate the activities of a new generation of “prosumers” (producer-consumers) and that economic and legal certainties would be challenged by an increase in the decentralised “free” supply of goods.

Last night, at the Information Law and Policy Centre, Dr Angela Daly and Dr Dinusha Mendis presented a more nuanced view of the prospects of 3D printing as a “disruptive” technology to mark the launch of Daly’s new book, Socio-Legal Aspects of the 3D Printing Revolution.

Daly, a research fellow at Queensland University of Technology Faculty of Law, shared findings from postdoctoral research at the Swinburne University of Technology considering the legal aspects of 3D printing from the standpoint of the US, UK-EU and Australian legal systems.

s200_angela.dalyDaly’s transnational lens enabled her to identify a number of divergent legal approaches to 3D printing in relation to exceptions to infringement, intermediary liability, copyright and DMCA takedowns.

She found that the legal implications of 3D printing were hard to generalise despite attempts at the harmonisation of international law. More often the legal status of 3D printing was both nationally and scenario specific. To this end, Daly noted that it would also be interesting to research how legal jurisdictions in emerging economies were tackling 3D printing.

Focussing particularly on the potential problems created for Intellectual Property law by 3D printing, Daly concluded that the technology was neither leading to “total chaos” nor “total control”.

She highlighted that 3D printing has not yet become a mainstream practice – despite entry level 3D printers selling for around £500, far fewer people own one than they do a smartphone or computer. Daly also emphasised that incumbent businesses and companies are incorporating 3D printing into their business models.

She stated, therefore, that although there was some chaos around the edges – such as the ability for people to print 3D guns – the overall picture was that from a socio-legal perspective the technology was not currently particularly ‘disruptive’.

Dinusha MendisDaly’s position was reinforced by a presentation from Dr Dinusha Mendis, Co-Director of the Centre for Intellectual Property Policy and Management (CIPPM) at Bournemouth University. Mendis has conducted research on the Intellectual Property and Copyright implications of 3D printing including work which was commissioned by the UK government’s Intellectual Property Office.

Of fundamental concern here is the potential illegal copying and use of the computer-aided design (CAD) files required to print objects in 3D. Her research identified hundreds of online platforms for the distribution of 3D printing files which were providing access to hundreds of thousands of designs.

Mendis’ research into online platforms reveals that interest in 3D printing has grown immensely between 2008 and 2014, but she identified limitations to the spread of the practice.

Potential users do not always have access to the right materials, funds to be able to purchase more sophisticated printers or the legal knowledge to license their work. Moreover, companies and businesses in this field informed her that there was currently little commercial impact on either automotive or domestic products. They predicted that 3D printing would remain limited for the next five to ten years.

For both Mendis and Daly, then, 3D printing has not yet lived up to initial hype over its ‘disruptive’ potential. Mendis recommended a ‘wait and see’ approach to UK government, concerned that legislating too hastily in this area might stifle creativity.

Nevertheless, as 3D printing technology improves and becomes cheaper, it might become the focus of increasing interest for legal scholars in the future.

Further Reading

A. Daly (2016) Socio-Legal Aspects of the 3D Printing Revolution, Palgrave MacMillan: UK
D. Mendis (2015) A Legal and Empirical Study into the Intellectual Property Implications of 3D Printing.
D. Mendis (2014) “Clone Wars”: Episode II – The Next Generation: The Copyright Implications relating to 3D Printing and Computer-Aided Design (CAD) Files. Law, Innovation and Technology, 6 (2), 265-281.
D. Mendis (2013) ‘The Clone Wars’ – Episode 1: The Rise of 3D Printing and its Implications for Intellectual Property Law – Learning Lessons from the Past?,  European Intellectual Property Review, 35 (3), 155-169.

Whistleblowers and journalists in the digital age

Snowden

Dr Aljosha Karim Schapals, research assistant at the Information Law and Policy Centre, reports on a research workshop hosted by the University of Cardiff on Digital Citizenship and the ‘Surveillance Society’.

A workshop led by researchers at the Cardiff School of Journalism, Media and Cultural Studies (JOMEC) on 27th June in London shared the findings of an 18 month ESRC funded research project examining the relationships between the state, the media and citizens in the wake of the Snowden revelations of 2013.

It was the concluding event of a number of conferences, seminars and workshops organised by the five principal researchers: Dr Arne Hintz (Cardiff), Dr Lina Dencik (Cardiff), Prof Karin Wahl-Jorgensen (Cardiff), Prof Ian Brown (Oxford) and Dr Michael Rogers (TU Delft).

Broadly speaking, the Digital Citizenship and the ‘Surveillance Society’ (DCSS) project has investigated the nature, opportunities and challenges of digital citizenship in light of US and UK governmental surveillance as revealed by whistleblower Edward Snowden.

Touching on more general themes such as freedom of expression, data privacy and civic transparency, the project aligns with the research activities of the Information Law and Policy Centre, which include developing work on journalism and whistleblower protection, and discussions and analysis of the Investigatory Powers Bill. Continue reading

Submissions and peer reviewers sought for new open access information rights journal

The Journal of Information Rights, Policy and Practice is a new open access, peer reviewed online journal launched in April.

The journal aims to encourage interdisciplinary debate of current information rights issues from a variety of policy, practitioner and academic perspectives.

The journal was launched at the Trust, Risk, Information and the Law Conference (TRILCon16) and submissions are now being received for the inaugural issue based on papers presented at the conference. The deadline for papers for this issue has been extended to 31 July.

The editorial board is also looking to recruit academics and practitioners willing to act as peer reviewers for articles, case reports and forward thinking pieces.

To propose a contribution (for current or future issues), or offer your services as a peer reviewer, please contact the Editor-in-Chief, Helen James at helen.james@winchester.ac.uk.

Further details can be found on the journal’s website at the University of Winchester Press. A full list of the editorial team, editorial board and advisory board appears below.

Editorial Team
Judith Townend (Institute of Advanced Legal Studies), Marion Oswald (University of Winchester) and Helen James (University of Winchester).

Editorial Board
Professor Brian Simpson School of Law, University of New England, New South Wales, Australia; Dr Mark O’Brien, Head of Law, Oxford Brookes University; Dr Kieron O’Hara, Senior Research Fellow in Computer Science, Southampton University and Visiting Professor, University of Winchester; Jamie Grace, Senior Lecturer in Law, Sheffield Hallam University; and Julian Dobson, Lecturer in Law, University of Winchester.

Advisory Board
Iain Bourne, Information Commissioner’s Office; Mark Webber, Partner & Registered Foreign Legal Consultant with the California State Bar, Field Fisher, Silicon Valley, US; Professor Pilar Cousido Gonzalez, University of Madrid and Visiting Professor, University of Winchester; and Professor Abu Bakar Munir, Professor of Law from University of Malaya.

Briefing: How Brexit might affect EU audio-visual media services policy-making

This brief by Professor Alison Harcourt, University of Exeter, discusses the current issues affecting UK stakeholders in the cross-border audio-visual services sector.

It is written in light of the replies to the public consultation on Directive 2010/13/EU on Audio-visual Media Services (AVMSD), the Commission’s Regulatory Fitness (REFIT) exercise, the public consultation on the EU Satellite and Cable Directive, national consultations and a possible exit of the UK from the EU. The paper also draws on anonymised responses to an online survey run by the author.

The paper’s findings are considered in the context of current market trends: the increase in high definition channels, decrease in television watching (e.g. DTT, cable, satellite, IPTV) particularly amongst the younger populations, the move towards on-line and on-demand services and changes in content investment.

If the UK were to withdraw from the EU, companies would still be able to broadcast to Europe from the UK under an EEA or possible bi-lateral agreement. However, the UK would no longer have a vote on Single Market decision-making within the Council of Ministers and no representation in the European Parliament. It would cease to have formal representation in soft governance fora such as BEREC and ERGA. Future changes to EU communications policy could affect UK interests and UK-based stakeholders might change their preferences accordingly.

Many in the industry have expressed concerns over Brexit. A survey conducted by Pact found that 85 per cent of its members were in favour of the UK remaining in EU. Enders reports that the advertising market, which is a growth area for the UK, will suffer as “a post-Brexit recession will cause a hyper-cyclical decline in the advertising revenues of broadcasters and publishers”.

This article will look at current European Commission proposals that affect cross-border broadcasting to understand why stakeholders are so concerned about Brexit and tease out different scenarios. The section focuses on European Commission proposals to revise the Audio-visual Media Services and SatCab Directives (AVMSD). The AVMSD proposal is expected in the summer of 2016.

Most UK concerns over Directive revisions relate to a possible change in the definition of the country of origin (COO) principle. The European Commission concluded that there should be no changes to AVMSD for measures on accessibility, the listing of events or the right of reply. However, it stated that there was no consensus on commercial communications, protection of minors and changes to European works quotas.

From its consultation, the EC found that there is no appetite for changing the country of origin principle within AVMSD. However, it does not rule out a change to the definition of the principle as occurred in 1997. The 2015 AVMSD consultation queried whether there should be a derogation to the country of origin principle in the areas of 1) incitement to hatred 2) ‘where editorial decisions on an audio-visual media service are taken’ 3) where broadcasters try to circumvent stricter rules in specific Member States and 4) protection of minors.

The DCMS response the European Commission AVSMD consultation stated that “the country of origin principle (COO) is a fundamental and critical precondition for the generation of a Digital Single Market in content; it is the core of the directive and must not be lost or eroded”. ITV states “we are therefore not convinced that an extension or adaptation of country of origin principle, for example to online VOD, would result in the creation of an internal market for audio-visual content”.

A 2016 COBA report states that “under current proposals for changing the principle, many VoD services would almost certainly cease to be viable”. The lack of appetite for a change in AVMSD may lead to a change to the principle in other Directives. Indeed, the European Commission queried to a possible change in the country of origin principle within the SatCab Directive. In response in the SatCab Directive, Sky responded that “Sky is concerned that the SatCab Directive review, which did not originally form part of the DSM strategy, was included in the strategy at the very last minute, with no prior impact assessment”.

AVMSD is expected to be revised within the next two years before the UK officially would leave the UK if Brexit occurs and might possibly be decided during the UK Presidency of the Council of the EU. However, if Directive revision is delayed, and the UK was to leave the EU and not contribute to AVMSD final revisions, there could be a change to the Directive, which might not be favourable to UK interests. Or the Directive could be updated again after the UK leaves. This could potentially make the UK less attractive as a base for companies’ operation.

Regarding derogation to the COO based on hate speech, this could be interpreted in many ways by Member States particularly in Central and Eastern Europe which have historically had stricter interpretations of hate speech than the UK. Regarding, a change to the definition of COO in relation to editorial control, this could affect operators like MTG which takes editorial decisions on programming in Stockholm. For example, if the COO was redefined based upon editorial decision-making, licensing for MTG would be changed to Italy and Germany respectively and Sweden.

Regarding derogation to the COO based on the protection of minors, this could affect UK operators that provide children’s channels to Nordic states. The Nordic states have long lobbied for an opt-out for jurisdiction over children’s programming on the grounds of the protection of minors. There are many UK operators that provide children’s programming from the BBC to Disney and Discovery whose channels might no longer be licensed in the UK. Another effect could be a loosened of advertising restrictions to channels broadcasting to the UK. The UK has concerns about looser advertising restrictions particularly in regard to protecting minors against  the advertising of foods high in fat, salt and sugar (HFSS) and watersheds for linear content (or parental controls for non-linear services).

On other advertising issues, UK stakeholders are divided. Some want looser advertising restrictions on advertising techniques and electronic programme guides (EPGs) e.g. the UK has prioritised public service broadcasters and people with disabilities. Others want tighter restrictions. There is also mixed response to whether there should be access obligations for all delivery platforms.

The European Commission also queried whether it should apply a “dominance test” for content providers and distributors. Although this proposal has been framed in the context of media pluralism, ultimately, this could potentially move competition decisions on media markets to the European level. What this could eventually mean is that the subsidiarity opt-out, long supported by the UK, which permits Member States to apply lowered thresholds and public-interest tests in national competition decisions on media mergers and acquisitions could be lost. A potential change to competition law has potential implications for BBC provision of public service broadcasting under state aid rules.

Lastly, there is mixed UK stakeholder response to the extension of AVMSD rules to on-demand content provision. The Commission has proposed that AVMSD should be extended to online content (e.g. audio-visual user-generated content or audio-visual content within social media), including non-audio-visual content (e.g. still images). For example, Youtube or Facebook increasingly provide streaming services and existing providers view them as direct competitors.

What is clear is that the European Commission is most likely going to propose that on-line services based in non-EU states are blocked and must establish an EU base e.g. from services such as Google Play, Microsoft Store, Youtube and Vimeo registered in the United States and other channels broadcasting into Europe (e.g. from Russia and the Middle East). The feasibility of these proposals must be considered in the context of on-going TTIP negotiations and (more widely) general bilateral relations between non-EU and EU Member States.

About the author

Professor Alison Harcourt (University of Exeter) specialises in regulatory change in communications markets.  Currently, among other roles, Alison is an ESRC Senior Fellow on the ESRC UK in a Changing Europe programme with the project “The impact of a proposed UK Brexit from the EU: the UK communications industries“.

This post originally appeared on the Oxford University Politics Blog and it is re-published here with permission and thanks.

Please note: This site provides general information only and does not contain legal advice. It is not responsible for the content of third party sites. Posts reflect the views of individual authors.