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The European Commission should be cautious about extending the Television Without Frontiers Directive (TVWF Directive) to cover the provision of online audiovisual content services, according to trade group the E-Business Regulatory Alliance.

The group made its comments in response to a consultation by the European Commission on whether the provision of audiovisual content services – by television broadcast, broadband or 3G – needs a new legal regime.

The Commission believes that telecom providers will soon be able to deliver broadcasting services in a quality equal to traditional TV, while traditional content providers will enter the communications markets. It therefore wants to make sure now that the new regime has better competition and consumer choice together with protection for children and cultural diversity.

Comments on the proposals were invited by 5 September, in time for a forthcoming EU audiovisual content conference to be held in Liverpool later this month.

According to the E-Business Regulatory Alliance, the existing framework governing audiovisual and information society services is working well. It is not convinced that any change is necessary.

“The internet is not a virtual 'Wild West', but is already heavily regulated with several instruments, for example the e-Commerce Directive and the Copyright Directive. Member States also have horizontal laws that can be generally applied to the internet,” says the Alliance.

“Where public policy issues, for example the protection of minors and human dignity, are important to the online environment, national legislation or industry self regulation is already adequate. The online business sector has done much to protect children and minors by introducing, for example, parental/guardian controls and age verification,” it adds.

The Alliance calls on the Commission to conduct a Regulatory Impact Assessment – along the lines of the UK’s model – in each business sector likely to be affected by any new regulations.

It is also concerned that simply extending the Directive will not solve the problem, in that businesses are unable to predict what developments will take place, and therefore what laws will be needed in the future. Nor does the Alliance believe that the timescale set for publishing the draft Directive – the end of this year – is workable, especially given the need for proper Regulatory Impact Assessments.

It calls for a light touch in respect of any proposals for regulating the internet, and questions whether the proposals will provide for legal certainty.

The Alliance says: “The E-commerce Directive sets down an enabling framework for online business. This provision should be allowed to remain intact and not be damaged by any new proposal. Online businesses do not want to be made subject to more than one set of rules.”

The definition of what is a linear (scheduled programming) and a non-linear (on-demand) service will be particularly problematic, says the Alliance, which believes that radio should definitely not be included.

“Further rules here would undermine Europe’s radio industry which is already well-regulated,” it says.

It calls on the Commission to ensure high levels of subsidiarity and to maintain a strong country of origin approach – so that businesses are not subject to different rules if offering services in different Member States, but merely have to satisfy those in their country of origin.

© Pinsent Masons 2000 - 2005

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