In this, the second ‘teaser’ for the Tech Law Masterclass series of articles which will appear in the October/November issue of Computers & Law, Daithí Mac Síthigh considers approaches to regulation of communications of all kinds, reflecting on lessons from the past – especially lessons about categorisation and how specific regulation should be
The pages of Computers & Law have often been home to sharp analysis of Bills introduced in Parliament that would add to the body of ‘information technology law’; Law Commission reports, and lacunae made visible in judicial decisions, are similarly assessed. Other writers assess technological changes with a view to how they might ‘fit’ (or otherwise) within the law as it stands. One understandable reaction is to doubt the value of an older approach of regulating the use of specific technologies. Why do we need to differentiate between cinema, DVD, newspaper, carrier pigeon (or even legal periodical) in this great age of convergence? Can we not just identify the relevant harms, rights, and wrongs, and allow the technology to fade into the background?
In Medium Law (Routledge, 2017), I had two objectives. One was to identify the extent to which definitions of the medium (e.g. through applying provisions based on the delivery platform and/or the use of specific technologies) are found in media and entertainment law. The second (and more difficult) goal was to comment on how significant the medium is to the operation of regulatory systems - such as where a rule is drafted with one technological context in mind but applies more broadly.
Within communication and media studies, the call to engage with the medium of communication is most associated with two Canadians: Harold Innis and Marshall McLuhan. Neither were lawyers; the former was an economic historian and the latter a literature professor turned cultural theorist (and, for a few years, media star). They studied the history of communications, making arguments about the relationship between a medium and its social or economic impact. Famously, McLuhan argued that the ‘medium is the message’, though Innis explored the point in much more detail in his extensive analysis of the relationship between communications technology and human societies over centuries. Although open to criticism that they take a ‘determinist’ approach to technology, their work (and that of later researchers in a so-called ‘Toronto School’ of communications) can help us to analyse law - especially media law. Through closer attention to the medium, we can examine whether differences in the treatment of the ‘same’ content can be justified, as well as whether applying the same rule across more than one medium could lead to differing results depending on the characteristics of a particular medium.
Many of the media laws we already have developed by reference to a particular medium. Cinemas have been regulated since 1909 through control of ‘exhibiting’ a moving picture. In 1984, video recordings became the subject of a new statute - although these provisions cannot apply to, for instance, downloads or streaming, unless Parliament revisits the matter. Later in the 1980s, an industry-led system (now the statute-backed Phone-paid Services Authority) tried to put some order on the emerging sector for ‘premium rate services’ accessed through telephone networks; it now covers using a phone bill/credit as a payment mechanism, though has no application to content paid for by other means. New tax credits in the creative sector similarly have interesting tests - here, a film is only a film if it is ‘genuinely intended for theatrical release’, and specific regimes apply for games, animation, and the like. Certain video-on-demand services are regulated by Ofcom as required by EU law, though with the actual regulatory requirements being quite minimal, the main area of dispute has been whether the service meets the regulatory test (including the beautifully circular notion of whether the on-demand service is sufficiently ‘television-like’). The list goes on. We do this in various other areas of law too: I mention ecclesiastical law (and its rich history of cases about how to speak and behave at the altar) and planning law (with its multitude of distinctions between flags, balloons, posters, and more), though an even more obvious example might be how expression and assembly rights fare in human rights law.
Cast your mind back to the Leveson Inquiry of a few years ago. Then, there seemed to be a real debate on the range of media regulatory models, as well as the application of one or more of those models to newer platforms. Go back a bit further, and we find in 2003 both the Licensing Act and Communications Act. The Licensing Act was a huge legislative endeavour, sweeping away more than a century’s worth of statutes on pubs, clubs, theatres, dance-halls, and the like; from now on, things would be clear, and based on principles (eg the protection of children). The Communications Act would do away with the legacy regulators (we even had a ‘Radio Authority’ amongst other things, as some readers will recall) and the new Ofcom would similarly operate by reference to principles (such as consumer choice). But the picture is more complicated. The Licensing Act still contained special treatment for everything from art galleries to morris dancing, so as to avoid overregulation. It has also been amended on numerous occasions, including to take ‘lap dancing’ clubs out of the law and into a more restrictive regime, and to exempt ‘live music’ (and then ‘recorded music’ in a later amendment) from certain requirements, so as to restore opportunities for up and coming musicians. Ofcom still recognises, for instance, the differences between radio, television, and on-demand services in terms of the substantive rules that apply.
I end up arguing that the idea of converged, cross-platform, medium-neutral media regulation is quite far off. Indeed, it may not even be a good idea. Various Secretaries of State and Parliamentary committees have looked forward to simpler, clearer regulatory systems - but this could mean treating everything according to the pluses and minuses of a particular medium, even if the label of that medium was no longer in the text of the law. It is one thing to try and treat all contracts and signatures alike, whether based on paper and pen or an encrypted exchange between machines. It’s quite another thing to say that the requirements (positive or negative) for content can be identical however it is delivered or accessed - under-regulation and over-regulation become apparent (and embarrassing) very quickly, as we saw with the licensing legislation. This doesn’t mean that there should be hundreds of silos; it’s more that the question about how medium-specific to be needs to be asked and asked again in the law-making process. Even where convergence is claimed, we often find a bunch of assumptions about platforms for communication and how the message and medium intersect; one or more technologies is used as a proxy for cultural value, for purported harms, or for a need to protect consumers. We also find loud objections to treating things alike that are not quite so alike after all.
So, we need to think like students of communications as well as like lawyers. If we focus too much on what is elegant drafting or a workable set of categories, or is driven by a seemingly convenient set of changes in technology and the market, we might miss the point. Media law benefits from a greater focus on the characteristics of each medium and of the way in which a medium is defined and used in the law. As this issue goes to print (or to your e-reader), Government is considering whether a new form of content regulation for ‘the Internet’ is desirable. The upcoming exit from the European Union also puts some of the laws discussed in Medium Law, such as on-demand services, intermediary liability, and the creative tax credits, back on the table. Already, this has prompted debate in Parliament about the regulation of social media services, amongst other things. This is perfectly legitimate, but we ought to go about it carefully. Many of the legislative changes mentioned in this article did not receive proper scrutiny first time around; the entertainment licensing law is now a mess of amended-amended-amendments, and other areas of great significance (such as exemptions from mandatory regulation of video recordings and computer games) are punted for later Ministerial action. Technological developments could instead prompt reflection upon the effectiveness of existing legislation, and the relationship between instruments drafted for various purposes at various times.