Digital Media and the Law

Pria ChettyTechnology and Innovation Law, PwC

www.pwc.com

Discover Technology & Innovation Law

Discover Technology & Innovation Law

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Dashboard

Bats

Wasteland of the Digital Age

Content Wars

Internet Regulation

Constitution

ECT Act, EC Act, Copyright Act

Freemium Model

WASPA

Digital Media Regulatory Trends and Challenges

Digital Media Regulation 101

Managing Trending Legal Risks

Internet Regulation Talking Points

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On: A Vast Wasteland Revisited

Ethan Zuckerman liveblogger:

“Television was the dominant medium of the era. The televised Kennedy/Nixon debate had decided the election. But there was little discussion about public interest and public responsibility on the part of broadcasters. Minow’s contribution as an FCC chairman was to try to expand choice – licensing the UHF spectrum, early cable TV systems and satellite television. When Kennedy invited him to visit the space program, Minow observed that satellites were more important to sending a man into space, because they permitted sending ideas into space, and ideas last longer than people.”

Photo of Newt Minow,

Source: Berkman Center for Internet and Society

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On: A Vast Wasteland Revisited

Media Citizen:

“technology and players have shifted, the problem of U.S. media remains the same: A failure to foster the sort of public interest, independent and non-commercial media system to serve as an antidote to the dreck of commercial news and information that infects America's political discourse”

Benckler:

"Because we all now carry sound, video and text generating and disseminating tools – phones – we’ve got an unprecedented opportunity to close the gap between what costs a great deal of money and what we all need as citizens."

PwC

http://chiefmarketer.com/0902-newspaper-paid-content-wars/

Newspapers charging for online content – bolster print

Battle to secure share in paid content market

Battle to rescue existing industries through innovative content services

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Digital Technologies: The crisis of traditional media

Source: http://quickshot.bradmccarty.me/DeclineoftheMediaIndustry.png

Talking Points from the U.S.:

Newspapers: Advertisement revenue dropped by almost 45% ... in just 4 years!

Between 2007 and 2010, 13,500 newspaper journalists lost their jobs

U.S. newsrooms: Full-time staff levels are lower than they have been since the 1970s

Brick and mortar bookstores go out of business & Amazon now sells more

e-books than printed books

Netflix predicts that DVDs will be obsolete in 2030 – substantial decrease in DVD rental stores

Digital technologies have caused a significant drop in CD sales

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http://forrester.typepad.com/groundswell/2010/01/the-splinternet-means-the-end-of-the-webs-golden-age.html?cid=6a00d8341c50bf53ef0120a814772b970b

Battle to contain users on sites and devices

Led to incompatibility of formats and content on devices

Splinternet –

Device specific content

Closed Web behind a username and password

Each device has own ad networks

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Digital Technologies: The crisis of traditional media

Digital technologies and technology convergence present formidable challenges to the industry as they erode many traditional revenue bases / business

models.

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Digital Technologies: Opportunities for new media

Consumers do not disappear even if a particular medium goes into decline – on the contrary, the availability of

digital technology arguably broadens the consumer base.

But consumer behaviour changes and businesses need to respond to this if they want to remain successful.

Social Business = Integration and Operationalisation of Social Media

for Change

Social Media Strategy

Collaboration Strategy

Social Media (legal) Challenges

Social Media Governance

Boardroom (or coffee shop) Conversations

Regulation of Digital Media

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Heightened demand for legal certainty

The challenges brought about by digital technologies, combined with a general

uncertainty of how traditional laws apply in the digital age, have significantly increased

the demand for legal advice in the media and entertainment sector.

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Copyright law awards the copyright owner the right to control the use, distribution and

exploitation of creative works in South Africa for a limited period of time.

literary works musical works artistic works

cinematograph films sound recordings

broadcasts programme-carrying signals

published editions computer programs

Application of Traditional Media Regulation

• The Copyright Act of 1978 is outdated and does not address digital realities (“hard copy rules in a soft copy world”)

• Enforcement is extremely difficult and costly (this is why ever stricter laws will not help)

• Courts appear to give low priority to copyright cases

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Wikipedia:

“Freemium is a business model by which a product or service

[...] is provided free of charge, but a premium is charged for advanced

features [or] functionality.”

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Why Regulate Digital Media?

Regulation Frames the Digital Economy:

Battle for Content

Battle for Content Rights

Battle for Internet (sanctity) and the Web

Battle for Users (attention) (retention)

Battle between Business Models

Battle between Internet Technologies, Internet Technology Corps

Battle to Stay Ahead

Regulation 101

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Due Diligence, Due Care

Constitution

Legislation

Regulation

Self Regulation/

Industry Codes

Policy

Case Law

Contracts

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The Constitution (1996)

Supremacy of ConstitutionDemocratic values of human dignity, equality and freedom

Right to PrivacyRight of Access to Information

Access to Justice

Limitations Clause Allows competing and conflicting rights to be balanced

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Key LegislationCopyright Act

(Regulate and administer rights protection for creators and inventors of copyright materials)

Electronic Communications Act(Regulate and administer converged industries)

Electronic Communications and Transactions Act(Regulate and administer content)

Regulation of Interception of Communications Act(Regulate detection and prosecution of offences in digital world)

Consumer Protection Act(Regulate the digital goods/ services supplier’s relationship with the consumer)

Competition Act (Regulate market competition violations in digital arena)

Films and Publications Act(Regulate acceptable content for public)

Protection of Personal Information Bill(Regulate data protection and privacy in the digital world)

Promotion of Access to Information Act(Regulates access to records held by an organisation)

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Codes of Conduct

Purpose Principles, values, standards, or rules of behavior that guide

the decisions, procedures and systems of an organisation in a way that (a) contributes to the welfare of its key stakeholders,

and (b) respects the rights of all constituents affected by its operations AND that is considered binding on any person who

is a member of that particular group.

Relevant CodesThe Direct Marketing Association of South Africa

Advertising Standards AuthorityDigital Media & Marketing Association

Wireless Application Service Providers Association

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Terms and Conditions of Service

Acceptable use of ContentUnacceptable use of Content

Third party rightsIntellectual property

ComplaintsTerms of Linking Agreements

Terms of electronic transactions

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Privacy Policies

Information collectedHow Information is used

Permitted disclosuresRetention of personal information

Security safeguards

Take Note 12345

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Defamation

Legal claim involving injury to reputation caused by false statements of fact.

To succeed in a defamation suit, the plaintiff must prove: that the defendant, (a) published, (b) defamatory matter, (c) referring to the plaintiff unless

truth in the public interest; the defamatory statement amounted to fair comment on a matter of public interest; or qualified privilege

Remedies include damages, retractions and apologies, interdict prohibiting publication of the defamatory material.

Prohibition of Defamatory Statements

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Intellectual Property

Ensure that intellectual property is sufficiently protected. Intellectual property rights apply particularly to the content displayed on the website and the software running the website. In some instances, however, intellectual property may be owned by third parties. To avoid intellectual property infringement claims by third parties, content must not be published in violation of someone else’s intellectual property rights.

Securing IPR

Prevention of infringement of third party IPR

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Privacy

Claims of privacy rights being infringed when information given is published and/or distributed without their consent.

Disclosure of Personal Information

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Social Media

Claims of unauthorised disclosure of confidential information and trade secrets, intellectual property infringement , loss of privacy, unauthorised publication of photographs, reputational harm, brand damage, loss of competitive advantage,

Regulate disclosures

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Social Business = Integration and Operationalisation of Social Media

for Change

Social Media Strategy

Collaboration Strategy

Social Media (legal) Challenges

Social Media Governance

Boardroom (or coffee shop) Conversations

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User Generated Content

Publication of Offensive content such as: pornographic material, content that exploits children, content that provides instruction or promotes illegal activities, or obscene content.

Guidelines on acceptable use of forums and comments facilities

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Thank You...

This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, PricewaterhouseCoopers Inc, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.

© 2012 PricewaterhouseCoopers (“PwC”), a South African firm, PwC is part of the PricewaterhouseCoopers International Limited (“PwCIL”) network that consists of separate and independent legal entities that do not act as agents of PwCIL or any other member firm, nor is PwCIL or the separate firms responsible or liable for the acts or omissions of each other in any way. No portion of this document may be reproduced by any process without the written permission of PwC.

Pria ChettyPwC Associate DirectorTechnology, Innovation Legal AdvisoryOffice: 011 797 5141 | Mobile: 083 384 4543Email: pria.chetty@za.pwc.com

Discover Technology & Innovation Law

Discover Technology & Innovation Law