Legislating for Web 2.0 – Preparing for the Communications Act?

August 11, 2008

2008’s third annual SCL Policy Forum arrives at a time when Europe is fast approaching a new set of Directives to regulate European communications law, from four directions:
•the Audiovisual Media Services Directive was enacted on 18 December 2007
•the European Parliamentary review of the Electronic Communications Services Framework (5 Directives and a Regulation) is taking place, with a plenary vote on 22 September 2008, the first day of the forum
•the Electronic Commerce Directive remains under constant review and is in tension with several national laws
•the Consumer Acquis (8 Directives) is currently being reviewed.

Many conferences this Autumn will rake over the minutiae of the proposed texts and amendments, but the SCL Forum aims to go far beyond short-term concerns to address a medium-range and long-range view of what will and/or should be in the legislative framework for the future. Our approach will be avowedly international and interdisciplinary, will combine academic with practitioner insight, and permits robust argument within the Policy Forum, an approach that is by now a tradition of the event and its unique structure.

At first sight, one might expect that the UK legislative role is reduced largely to implementing this flurry of legislative activity at European level. However, the timetable and activities at European level tie in with a set of activities at UK level that affect the Internet and broadcast environment – the implementation of the governmental response to the Gowers Review, the preparations for reform of the Wireless Telegraphy Act to make spectrum secondary trading easier, the switch-off of analogue television frequencies in 2008-2012, and their resale/reuse. There may well be reform of the Communications Act 2003, presumably after the next General Election in 2010 and therefore timed to coincide with implementation of European Directives: AVMS (by end-2009) or Electronic Communications package (by end-2010).

There is much unfinished business from the 2003 Act and 2002 Electronic Communications package, notably the wider question of whether competition or public interest more broadly defined should prevail, the question of ‘what’s wrong with competition policy for the new media?’ (see http://www.emeraldinsight.com/Insight/viewContainer.do?containerType=Issue&containerId=22749 for a 2005  debate amongst four Policy Forum participants: Marsden, Woods, Gibbons, Ungerer). Notably, there is also significant competition law interest in the Internet aside from the ‘usual suspects’ in telecoms – from the Google-Doubleclick merger to the failed Microsoft-Yahoo! Merger. The 2008 Forum will expand its focus a little by engaging with this debate – both from a law and economics viewpoint, but also in terms of the consumer, copyright and privacy law implications, as well as the ever-developing role of the Internet intermediary,  enshrined in the elderly E-Commerce Directive of 2000.  One also must not lose sight of the citizen-consumer balance in the 2003 Act, their adjustment in redrawing public service (for broadcast) and universal service (for spectrum and broadband), and the role of media ownership and social networks, both examined by Parliamentary Committees and the Byron Review in recent months of 2008.

On Day 1, we set the context for what will be (and won’t be) in either the Act or the European Directives, beginning with a futurology session which brings together technology, finance and future services. The speakers will present papers on international approaches to Internet regulation in Europe and North America from the perspectives of technology evolution, finance and investment in the ‘Credit Crunch’ and beyond, and approaches beyond voice telecoms in an all-IP world.

We then consider how the legislative proposals arrive via the Better Regulation agenda, mandatory Impact Assessments, and cooperation between Member States in the Council of Ministers, and with the College of Commissioners. There are many cogs in the wheel that we call ‘Brussels’ and light shed on practical workings of the legislative process will be invaluable for practitioner and academic alike. The panellists will present short position papers on the legislative and policy impact implications of aspects of Internet regulation, notably impact assessment and Better Regulation requirements, and the division of responsibilities and implementation challenges for Member States. 

After lunch, it is our pleasure to introduce two excellent keynote speakers, Dr Herbert Ungerer, Deputy Director General, Competition, European Commission, and Professor Viktor Mayer-Schonberger, from Harvard University’s Kennedy School of Government. It is always wise not to try to predict the comments of either speaker, but to listen intently to every word, and use this opportunity to clarify and draw out their views. For communications law afficionados, it will be unmissable.

To close the first day, we ask what should (and should not) be in a ‘future proof’ Communications Bill? Our two professors, experienced advisors to Parliamentary Committees, will present short position papers on the legislative implications of Internet regulation, and lessons from previous compendium communications legislation in 1990, 1996 and 2003. The legislative focus is often very different to the technocratic requirements of the inter-ministerial negotiations on drafting, with emphasis on media ownership, broadcast impartiality and pay-TV, rather than EC Directives and ‘technological neutrality’. Is this old-fashioned inefficient analogue politicking or a welcome antidote to technological digital determinism?

Day 2 examines the unfinished business in the legislative agenda, first re-examining the ‘legislative settlement’ of the E-Commerce Directive, in a session provocatively titled ‘The Beginning of Intermediary Liability?’ This round table session will focus on the implications of particular regulatory practices for the development of competition, consumer protection and intermediary liability. Note Laurence Eastham’s August 5 news piece on the Commons Culture Committee recommendations on computer games rating and social network regulation (click here), and the suggestion that the ECD settlement be re-opened.

We then return our attention to two international keynote speakers, asking ‘Whither Legislation in Brussels and Washington’,  Professor Andrea Matwyshyn from The Wharton School of the University of Pennsylvania, and Professor Nico van Eijk of the Institute for Information Law, University of Amsterdam. It hardly needs restating that the next six months may see radical changes in both the US administration and policy, and in the types of industrial structure – driven by merger – that aim to take advantage of policy space, whether that be Phorm, Google’s proposed mergers, the ever-present threats to Internet security and free speech, or Microsoft’s plans. These speakers are renowned for challenging conventional thinking in these areas.

After lunch, we address the huge controversies in liability and copyright post-Gowers. The panellists will present papers on the implications of EC and UK developments in liability and copyright, and this session may well produce the frankest and most robust exchanges of all, amongst friends! Finally, we address unfinished business: ‘What should be in a Communications Act but isn’t?’ This round table session will focus on the practical development of Internet legislation, including ‘thinking the unthinkable’ in radical deregulation and reregulation options, and the network neutrality debate in Europe.

The Forum Host remains the ever-generous Mark Turner and Herbert Smith LLP, who provide an excellent work and networking space for the participants to engage in a truly interactive ‘workshop’ atmosphere, both informal and rigorous.

Christopher T. Marsden LL.B., LL.M. (Lon) is Director of the LL.M. in IT Media E-Commerce Law at the University of Essex Law School.
For full details of the event, click here.


It may be necessary for reasons beyond the control of the Society for Computers and Law to change the content/timing of the programme and/or speakers.