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Just kicking off at the @computersandlaw #digitalmedia law masterclass - first up, #TV, #tech and regulation
Interesting time seeing traditional broadcasters move into the streaming space - is it the beginning of the end of linear broadcast TV as we know it!? 🎵 Streaming killed the TV star 🎵
Broadcast TV still accounts for 71% of viewing time - but more subscriptions to streaming services than pay-TV
TV ad revenues are down overall and SVOD and AVOD ad revenues are up massively. When will we see those providers adopting the personalised/targeted marketing tactics of websites I wonder? Maybe it’s already happening and I’ve not noticed...
The market cap differential btw Amazon (927bn) and ITV (6bn) is huge! Apples and oranges though...
Amazon differs from the pack because Prime is not a content business - it’s a tool for capturing and holding onto customers (and unsubscribing from Prime is hard btw!)
The #copyright directive comes into force today - but implementation deadline not until 7 June 2021 what will the UK do post-Brexit?
Content sharing platforms older than 3 years with a turnover of €3m will have an obligation to make best efforts to obtain rightsholders’ consent or remove infringing works - how will technology deal with this challenge? More filters?
More interesting are the remuneration provisions for authors and performers (arts 18-23) - lump sums payments should become the exception rather than the rule. This will affect the entire value chain
As far as #AVMSD Take II is concerned - it extends to “video sharing platforms” where “essential functionality” is to provide content or UGC to inform/entertain/educate. Country of origin principle for regulation retained - very limited derogations
The #AVMSD measures re protection of minors is not about the content but the mechanisms for managing the content such as flags, filters, age verification etc (sounds familiar)
I wonder why the EU has not considered something like the US Commercial Advertisement Loudness Mitigation (CALM) Act on the loudness of TV ads? Now I sound like my dad...
The @ICOnews Age Appropriate Design Code risks conflating data protection regulation with content regulation (or even vice versa) which could cause regulatory overlap and confusion: ico.org.uk/media/about-th…
In terms of age verification and the #AVMSD - this is unclear but likely to follow the line of using hard ID data like driving licences/credit cards etc (and we all know the issues with that!)
Now we’re onto the consumer regulation of digital content, specifically, consumer rights in the e-commerce space. The definition is broad - “data produced and supplied in digital form”
“Digital content” not only includes content contained within or delivered via apps but the apps themselves - the container so to speak
Interesting that one of the recitals to the Consumer Rights Directive refers to “tracking of consumer behaviour” and an example of the type of info that should be provided in connection with digital content
Is an online service classified as “digital content” or a “service”. It’s not clear - but Commission suggests distinction lies in whether content is downloaded vs accessed/streamed. A service that requires an app to access it could be both or a mixed contract - untested though
Consumers have remedies if free or paid-for digital content damages a device: repair or compensation. But when will this *ever* apply!? I think the more interesting provisions are those around the idea of “fitness for purpose” (crap apps - or crapps)
Potential game changers: a new Directive opening the door for collective actions and GDPR-scale finds and the Digital Content Directive which refines concepts around “digital content” and new obligations about updates
Now onto #onlineharms with an intro by Lorna Woods. It’s not about takedown - “it’s about the conditions and fixing the plumbing before you have to get the mop out”
The #OnlineHarms White Paper looks at a regulatory as opposed to self-regulatory model creating a statutory duty of care (does it?) and 11 draft codes for particular types of content - but that isn’t a good idea (how do you define them?)
Is there a difference of approach between DCMS and the Home Offices interests? Eg will a systematic approach towards levels of harm meet statutory thresholds for terrorist or child abuse material?
Perhaps reference to safety by design indicates that DCMS is more interested in the system than the content and it’s not intended to be a black letter approach. Hmm...I’m not sure I follow that - aren’t we trying to define harmful content in vague terms?
If #AVMSDII is implemented in the UK before #onlineharms regulation comes in that could be interesting seeing as video sharing providers are caught by #AVMSDII
What is the position on below-the-like comments for traditional media providers? Jeremy Wright suggests they will not be caught but does that make sense? Comments = UGC
What about gaming? No clear view on this - perhaps chat within games could but behaviour in-game might not be. [Me: sheesh what a tangled web we are weaving]
Lorna Woods view on “harms”: the codes of practice are unclear - threats are matched to the codes so those areas must be “in”. The paper suggests defining harm by clarity of definition rather than severity of harm - how!?
Unclear about harms to society vs harms to individuals but definitely not harms to companies [Me: well how’s that for establishing the boundaries of a statutory duty of care!?]
There is no proposal to create an action for breach of statutory duty - but regulatory action by some kind of “Ofweb”. The Age Appropriate Design Code (again overstepping) suggests companies should enforce their Ts&Cs
The very idea that teams of people can evaluate harmful content against a code(s) of practice is nonsense! Why are we promulgating complex legislation that is built on uncertainty?
When harms are defined by reference to those that are “clearly defined” (including hate speech and revenge porn) and those that are “less clearly defined” we have a problem. How does a human moderate that? And if machines are trained by humans...
I sense there are not many people in the room who are fans of the #OnlineHarms White Paper - but we’ve not got to question time yet!
If anything the proposed framework is going to create a massive market for litigators keen to back companies into a corner with hordes of claimants and media attention
In terms of platform liability, the paper says that liability of online service providers will be compatible with Reg 19 of the E-commerce Directive which limits liability for online content. But will it? Because the proposed law presupposes knowledge on the part of platforms
What does para 3.12 of the paper on “specific monitoring”? Sounds like they want platforms to implement general monitoring for specific types of content rather than specific content.
The Government needs to scale back its ambition to focus on what is illegal and defined not legal and vague
Now we’re looking at personality rights and 10 key cases from 2019. I haven’t looked at this since Irvine v TalkSport so this should be interesting...
The centrality of data protection to personality rights cases is key - GDPR is washing over everything and media lawyers must be data protection lawyers too
Rudd v Bridle (HC): looked at DSARs and s10 of the Contempt of Court Act re disclosure of “sources” - judge said the source had to be provided in line with section 7 of the DPA 1998. Sch 2 para 16 DPA 2018 replicates this so consent/reasonable
Data subjects rights are not meant to coincide with controllers’ duties: an action for damages under Art 82 GDPR applies in either case (can’t comply with rights and ignore duties). Liability as a controller extends to anyone - not just data subject
R v Jarvis (Canada): interesting case about what a “reasonable expectation of privacy” means - scc-csc.lexum.com/scc-csc/scc-cs…
Onto Buivids now (see @neil_neilzone’s article here: scl.org/articles/10433…)
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