The Convergence Challenge

Dr Sharon Azzopardi

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What is Convergence?

A Union of Media

PrintTelevisionCamera

TelephoneRadio

Internet

A Union of Services

DataVoiceVideo

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The era for Johannes Gutenberg is over. A new digital technology has emerged.

Convergence

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Converging Technologies

• VoIP;• IP TV/radio;• Audiovisual media services;• Online music stores and P2P;• Social networking;• Online newspapers; blogs; magazines; books;• Online banking;• Email, data and internet access on mobile phones; • Online auctions and transactions;• Virtual worlds with virtual currencies.

• Different Services = Different Media Platforms = Different Regulations

• Regulatory disconnect?E.g. defamation law

• Regulatory Challenges: Can traditional laws regulating traditional media be

applied to regulate converged technologies? Can one regulate converging technologies and how?

• Issues include:

- Communications regulations and VoIP- Privacy regulation and the Cloud- Audio visual media services and regulations

Convergence and Regulation

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VoIPVoice over Internet Protocol means the use of IP technology to provide phone calls either from a personal computer and dedicated handset or a traditional telephone handset, using an adapter to digitise the message

Regulatory Uncertainty: Communications law and VoIP

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VoIP: Regulatory Challenges • Is VoIP an ECS or simply online software enabling transmission of

audio/visual data?

electronic communications service means a service normally provided for remuneration � �which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services…. which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;

• Obligations imposed by regulation

e.g. Universal Services (emergency calls, directory enquiry services, quality of services, special measures for disabled users, number portability)

Regulatory Uncertainty: Communications law and VoIP

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VoIP: EU Regime

• 1998 Commission Notice on the Status of Voice Communication on the Internet

• NRF: Consultation Document on the Treatment of Voice over Internet Protocol under the EU Regulatory Framework – Available to the public?– ‘Smells, looks and feels like’ an electronic communications service?– Marketed as a substitute/perceived by the consumer as a substitute to

voice telephony?– Consumers’ sole means of access?

Regulatory Uncertainty: Communications law and VoIP

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Cloud Computing

Regulatory Uncertainty: Privacy and the Cloud

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The Cloud and Privacy Regulation

Regulatory Uncertainty: Privacy and the Cloud

Current Legal Instruments

- Directive 95/46/EC on the protection of individuals to the processing of personal data and on the free movement of such data

- ePrivacy Directive 2002/58, as revised - National laws in EU Member States

Regulators Involved

- European Commission - Article 29 Working Party – a body consisting of

representatives of the national regulators and the Commission and that provides opinions on the applications of the Directive

- National Regulations (usually a Data protection Commissioner)

Proposal for New Regulation

- Draft Proposal released by Commission on 25 January 2012- A Regulation likely to be implemented as of 2015

Data Controller: determines the means and purposes of the data processing

Data Processor: processes data on the instructions of the Data Controller

Difficulties for Regulation: Is a cloud operator a controller or a processor?

WP 29 Opinion 1/2010: “the first and foremost role of the concept of controller is to determine who shall be responsible for compliance with data protection rules, and how data subjects can exercise the rights in practice.” WP 29 Opinion 5/2012: “The cloud client determines the ultimate purpose of the processing and decides on the outsourcing of this processing and the delegation of all or part of the processing activities to an external organisation. The cloud client therefore acts as a data controller.” WP 29 Opinion 5/2012: “When the cloud provider supplies the means and the platform, acting on behalf of the cloud client, the cloud provider is considered as a data processor” but “there may be situations in which a provider of cloud services may be considered either as a joint controller or as a controller in their own right depending on concrete circumstances. For instance, this could be the case where the provider processes data for its own purposes.”

The Cloud and Privacy Regulation

Regulatory Uncertainty: Privacy and the Cloud

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The Audio Visual Media Services Directive 2010/13/EU

• Problems facing lawmakers are illustrated in the EU’s attempt to clarify the application of television regulation to online audiovisual content

• Aim: Platform neutrality: common rules for all services to maintain the regulatory control for TV programming,

whether delivered by traditional broadcasting (linear) or online (non linear)

Free movement of broadcasting/audiovisual media services

Regulatory Uncertainty: AVMS

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Determining whether an online activity is subject to this Directive: - Directed at the general public- Principal purpose is provision of programmes- Intended to inform, educate and entertain- Operator editorial responsibility of the choice of the audiovisual content

i.e. effective control over selection of programmes and organisation

Regulatory Uncertainty: AVMS

The Audio Visual Media Services Directive 2010/13/EU

WHO IS IN&

WHO IS OUT?

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Other Challenges:

• Difficulty to identify simple concepts to apply to a complex and dynamic environment

• Technology Neutrality: technology indifference EU Communication Regulations:

“All transmission networks and services should be covered by a single regulatory framework”

“Member States should take the utmost account of the desirability of making regulations technologically neutral.”

• Difficulty in distinguishing between information society service e.g. ISPs (regulated by E-Commerce Act), and an electronic communication service (regulated by E-Communications Regulation)

• Multiple authorities whose roles overlap

• Regulatory convergence required e.g. telecoms law, data protection law, IT law? - as an example to this: Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications

Regulatory Uncertainty?

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Regulation should be:

- Fair with consistent rules for all providers;- Transparent with decisions fully explained;- Accountable with appropriate means of redress available;- Informed by technical and industrial expertise;- Coherent without a plethora of bodies duplicating

responsibilities;- Self regulation?

Approach to Regulation

Thank You!

Email: sharon.azzopardi@camilleripreziosi.com