Early thoughts on Leveson 2 of 4 – the Internet!

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.

There was much discussion on whether Leveson would make recommendations regarding Internet regulation.  There’s a decent discussion of Web issues in the report, and brief mentions of the system for regulating video-on-demand (discussed a bit more below), but in terms of recommendations there is not much there.  Of course, the remit was the press, and indeed there will be some who express relief regarding the lack of recommendations in this regard.  The proposed regulatory system would be open to participation by websites (as I read it) and that is sensible.  (There is a discussion of a ‘de minimis’ approach to required/encouraged participation, which would be particularly important in this context).  However it will be interesting to see whether further work on taking forward that discussion (e.g. on intermediaries, on dissemination through social networking sites, etc) will now be appropriate, i.e. outside of the Leveson process.  In my view, one outcome of the process was a lot of evidence on how different service providers governed their services (and thus their users), as well as issues raised about the application and enforcement of existing law.  On balance it was probably right to stay away from specific recommendations, but it would be sad to see that effort go to waste (the problems will not go away).

On demarcation, it is recommended that services within the scope of the Broadcasting Code or the ATVOD system would not be within the scope of the proposed press body (p. 1791).  This is interesting, although since the Ofcom finding that the Sun’s video content did not constitute (for the purposes of VOD regulation) an on-demand audiovisual media service, and ATVOD’s subsequent withdrawal of actions against (broadly speaking) other newspaper websites, the potential for overlap is significantly reduced.  I raised an eyebrow at the idea on the same page that the criterion for regulation of on-demand services (that they are ‘TV-like’) applied by ATVOD and Ofcom (but following the language of the AVMS Directive) could help to define ‘press-like’ in the context of press regulation.  I still harbour doubts about the sustainability of the TV-like definition (not least because, when you put all the defined terms together, one goes around in circles), so I hope the press body, if it is created, has a strong pot of coffee for figuring it out.

By the way, at p. 166 (discussing on-demand services and the designation of ATVOD by Ofcom), the report argues that “protections similar to that applied to broadcast content are applied to that same or similar content when made available online.” In this case, I disagree.  Aside from the procedural differences in licensing (which don’t tell us about protections, really), or sanctions (which might), the content standards are radically different.  ATVOD applies a much smaller set of regulatory requirements (identification, incitement to hatred, protection of minors and some controls on commercial promotion) than Ofcom does.  Think for example of the EU-required higher level of protection of children or on advertising which applies to ‘linear’ content only, not to mention the many requirements of UK law (which apply to all broadcasters, not just the public service ones) on due impartiality, on fairness and privacy, and much, much more.

I think that the discussion on intermediaries (p. 178) will require further thought – it cites article 15 ECD as the regulatory framework, which doesn’t quite concur with how I read the Directive, but no conclusions are drawn in any event.  (There is a much better explanation of the issue, including the issues raised in Tamiz, at p. 1900)

Finally, there is a neat framing of the Internet as an ethical vacuum (page 736) – the report is careful in pointing out that this is not intended to impugn the ethical standards of individual bloggers etc, and that the point is to demonstrate that the Internet does not make a claim as to standards.  Nonetheless I think attributing an ethical concept to ‘the Internet’ does not get us very far; I think the class is too big to make sense. There may also be useful ethical models associated with online communication which might, I dare to say, be useful for the press!

Sorry, two other things.  There is what might be interpreted as praise for Google’s approach to privacy (p. 168).  I’d imagine this will be controversial in some eyes.  But not much is made of it.  And there is a quirky mention of, of all things, ICANN (not further developed) (p. 166)!