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Back IRIS Special 2018-2 Media law enforcement without frontiers

European Audiovisual Observatory releases new report about the regulation of on-line media services
IRIS Special 2018-2 Media law enforcement without frontiers

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Digital cyberspace knows no borders, technically speaking. An episode of “Game of Thrones” can be produced in Ireland, uploaded for viewing in Frankfurt and watched in Hong Kong. Evidently regulating media services in this digital world ‘sans frontiers’ is an extremely complex challenge, made even more so by the many new media services emerging each day. In addition, the EU’s stated intention to create and preserve a ‘Digital Single Market’, with border free access to our films and TV programmes, raises very specific legal questions within the European space. High time, then, for an up-date on where media legislation stands. And the Strasbourg-based European Audiovisual Observatory, part of the Council of Europe, has risen to the challenge with its latest publication: Media Law enforcement without frontiers.

The authors open this new publication by stating that “online law and order” in the media field cannot be achieved by single countries and their national legislation. Chapter one explains that Cross-border law enforcement in the online world is vital. This can happen at three levels: the regulatory level involving national and international media law, the organisational level bringing together stakeholders and law enforcement agencies resulting in self and co-regulation, and also a third, procedural level which produces bilateral and multilateral agreements designed to cement the collaboration between all involved. Grey areas of legislation are produced when there is no common, cross-border understanding of fundamental rights or normative legal principles. This results in differing protection levels and therefore disparities between the various national legal systems.

Chapter two drills deeper into international and European law applicable to cross-border media legislation. It begins with the European Convention on Human Rights and its basic safeguards of fundamental rights such as freedom of information and freedom of speech, before moving on to EU legislation such as the e-commerce Directive or the Audiovisual Media Services Directive. Such legal instruments provide rules regarding the competent jurisdiction for any question and safeguard the country-of-origin principle. This chapter therefore compares the scope of the various public bodies in the light of existing national and EU legislation.

Chapter three zooms in on national legislation, analysing 8 different European countries: Austria, Belgium, Germany, Hungary, Italy, Latvia, Sweden and Turkey. For each national example the authors outline the regulatory framework of the country in question, examine the practical sanctioning options available and then provide actual examples of law enforcement measures which have been applied. Examples include the German NetzDG law which obliges social media platforms to provide 6 monthly reports on their handling of hate crimes, or indeed the Italian example of regulator AGCOM which ordered ISPs operating under Italian law to disable access to two IPTV servers, following massive copyright infringements from those IPTVs.

These 8 country reports lead to chapter four which offers a comparative analysis of the various national systems. While many similarities between the various national approaches exist, many differences remain in spite of the overarching AVMSD applicable to all EU countries. The key to this conundrum lies in the fact that the AVMSD offers a large degree of flexibility of application to the various European countries, hence a number of different methods of application exist throughout the EU. Common features and differences are analysed with reference to practical solutions already adopted by the various regulators.

The authors conclude by highlighting the changing challenges for media legislation concerning online media. The focus has moved from following the development potential of online media with adapted regulation, to dealing with challenges such as “fake news”, unlawful web content, the ongoing protection of minors, or ensuring democracy and social ethics. The final statement of this report encourages dialogue and discussion as a way forward: “The better the exchange of information is between supervisory authorities […], the better the supervision provided can succeed in a digital and global environment.”

Strasbourg 23.01.2019
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