31 January, 2019
Effective law enforcement increasingly dependent on complex multidisciplinary approach
The way the Internet and new communication technologies revolutionised the dissemination of audiovisual content across borders has resulted in a digital cyberspace that is overwhelmed with countless amounts of content (both legal and illegal), thus raising new challenges in terms of regulation. In that regard, ensuring law and order online cannot be achieved exclusively at national levels by single States, regardless of how powerful their legal system and law enforcement measures are. It is against such background that the European Audiovisual Observatory published in January 2019 a report on “Media Law Enforcement without Frontiers”. This IRIS Special, released in cooperation with the Institute of European Media Law (EMR), is particularly relevant for regulators' work because it addresses the question of cross-border law enforcement in the field of audiovisual media online. These issues are addressed at national level by focusing on the practices of the respective regulatory authorities in eight countries, i.e. Austria, Belgium, Germany, Hungary, Italy, Latvia, Sweden and Turkey.
The report raises inter alia the following regulatory challenges:
Fragmentation of existing law enforcement approaches: the different national reports paint a picture of fragmented law enforcement approaches against domestic and foreign media-service providers in the European audiovisual sector, despite a common international (and, in some cases, European) legal framework. While many of the challenges mentioned with regard to the regulation of (online) media content are the same or similar from one country to another, there are also national differences, some of which can be traced back to specific geographical and linguistic characteristics or to cultural peculiarities of the relevant regulatory environment. Even so, there is a certain degree of divergence between national regulatory frameworks which, at EU level, is a consequence of the flexibility given to member States by the AVMSD. In Sweden, for example, there are stricter rules concerning advertising aimed at children and the advertising of alcoholic products in audiovisual media.
Country-of-origin principle & “forum shopping”: COO may be used as an escape route from regulation and law enforcement in a particular country. In Hungary, for example, only eight of 100 Hungarian-language TV broadcasters are based in the country. One key challenge, which is particularly highlighted in the reports from Latvia and Belgium, for example, concerns the handling of regulations governing how to deal with foreign services under the procedure described in Art. 4(1) and (2) of the AVMSD 2010/13/EU, in conjunction with its different expressions in national law as an amendment to the COO principle.
Material scope: another problem of interpretation that regulators face concerns the definition and categorisation of services (especially Internet-based services), where such categorisation determines the legal framework under which a service falls and, therefore, the possible sanctions that may be applicable to it. For example, should video services on newspaper websites be classified as video-on-demand services (Sweden) and should (live) streaming services on Twitch and YouTube be treated as broadcasting, since they are similar TV (Austria and Germany)?
Crucial need for reinforced cooperation: the national reports consistently focus on cooperation at various levels, in terms of both preventive measures and the enforcement of practical measures. As well as participation in forums such as ERGA and EPRA, one form of cooperation simply involves the forwarding of complaints about media services. However, bi- and multilateral cooperation at sub-EU level, which is often influenced by external circumstances such as a common language across the media landscape (Germany and Austria) or the programme orientation of foreign providers (UK and Sweden), is also taking place. KommAustria, for example, mentions bilateral meetings involving Switzerland and the German state media authorities.
Transparency towards stakeholders & promotion of media literacy: these can take the form of the broad provision of information (Austria) or longer-term initiatives involving the relevant stakeholders (Germany). Such cooperation can take place at a thematic level on the basis of specific dangers, with the regulators playing an advisory role (e.g. the Italian initiative on online disinformation) or in the form of general discussion forums.
As is emphasised in the national reports, audiovisual regulators need to find sustainable solutions for effective law enforcement, which are increasingly dependent on legal, technical and other specialist skills forming part of a multidisciplinary approach.
Additional EPRA Background: "Compliance and Enforcement Policies, Strategies and Methods" was the subject of an annual EPRA Plenary Session in 2016. On this occasion, Jean-François Furnémont, Founding Partner of Wagner-Hatfield, produced a Keynote address on the " Challenges of ensuring compliance and enforcement in a changing media ecosystem".
Source: EAO Website