The pages of Computers
& Law have often been home to sharp analysis of Bills introduced in
Parliament that would add to the body of ‘information technology law’; Law
Commission reports, and lacunae made visible in judicial decisions, are
similarly assessed. Other writers assess technological changes with a view to
how they might ‘fit’ (or otherwise) within the law as it stands. One
understandable reaction is to doubt the value of an older approach of
regulating the use of specific technologies. Why do we need to differentiate
between cinema, DVD, newspaper, carrier pigeon (or even legal periodical) in
this great age of convergence? Can we not just identify the relevant harms,
rights, and wrongs, and allow the technology to fade into the background?
In Medium Law
(Routledge, 2017), I had two objectives. One was to identify the extent to
which definitions of the medium (e.g. through applying provisions based on the
delivery platform and/or the use of specific technologies) are found in media
and entertainment law. The second (and more difficult) goal was to comment on
how significant the medium is to the operation of regulatory systems – such as
where a rule is drafted with one technological context in mind but applies more
broadly.
Within communication and media studies, the call to engage
with the medium of communication is most associated with two Canadians: Harold
Innis and Marshall McLuhan. Neither were lawyers; the former was an economic
historian and the latter a literature professor turned cultural theorist (and,
for a few years, media star). They studied the history of communications,
making arguments about the relationship between a medium and its social or
economic impact. Famously, McLuhan argued that the ‘medium is the message’,
though Innis explored the point in much more detail in his extensive analysis
of the relationship between communications technology and human societies over
centuries. Although open to criticism that they take a ‘determinist’ approach
to technology, their work (and that of later researchers in a so-called
‘Toronto School’ of communications) can help us to analyse law – especially
media law. Through closer attention to the medium, we can examine whether
differences in the treatment of the ‘same’ content can be justified, as well as
whether applying the same rule across more than one medium could lead to
differing results depending on the characteristics of a particular medium.
Many of the media laws we already have developed by
reference to a particular medium. Cinemas have been regulated since 1909
through control of ‘exhibiting’ a moving picture. In 1984, video recordings
became the subject of a new statute – although these provisions cannot apply
to, for instance, downloads or streaming, unless Parliament revisits the
matter. Later in the 1980s, an industry-led system (now the statute-backed
Phone-paid Services Authority) tried to put some order on the emerging sector
for ‘premium rate services’ accessed through telephone networks; it now covers
using a phone bill/credit as a payment mechanism, though has no application to
content paid for by other means. New tax credits in the creative sector
similarly have interesting tests – here, a film is only a film if it is
‘genuinely intended for theatrical release’, and specific regimes apply for
games, animation, and the like. Certain video-on-demand services are regulated
by Ofcom as required by EU law, though with the actual regulatory requirements
being quite minimal, the main area of dispute has been whether the service meets
the regulatory test (including the beautifully circular notion of whether the
on-demand service is sufficiently ‘television-like’). The list goes on.
We do this in various other areas of law too: I mention ecclesiastical
law (and its rich history of cases about how to speak and behave at the altar)
and planning law (with its multitude of distinctions between flags, balloons,
posters, and more), though an even more obvious example might be how expression
and assembly rights fare in human rights law.
Cast your mind back to the Leveson Inquiry of a few years
ago. Then, there seemed to be a real debate on the range of media regulatory
models, as well as the application of one or more of those models to newer
platforms. Go back a bit further, and we find in 2003 both the Licensing Act
and Communications Act. The Licensing Act was a huge legislative endeavour,
sweeping away more than a century’s worth of statutes on pubs, clubs, theatres,
dance-halls, and the like; from now on, things would be clear, and based on
principles (eg the protection of children). The Communications Act would do
away with the legacy regulators (we even had a ‘Radio Authority’ amongst other
things, as some readers will recall) and the new Ofcom would similarly operate
by reference to principles (such as consumer choice). But the picture is more
complicated. The Licensing Act still contained special treatment for everything
from art galleries to morris dancing, so as to avoid overregulation. It has
also been amended on numerous occasions, including to take ‘lap dancing’ clubs
out of the law and into a more restrictive regime, and to exempt ‘live music’
(and then ‘recorded music’ in a later amendment) from certain requirements, so
as to restore opportunities for up and coming musicians. Ofcom still
recognises, for instance, the differences between radio, television, and
on-demand services in terms of the substantive rules that apply.
I end up arguing that the idea of converged, cross-platform,
medium-neutral media regulation is quite far off. Indeed, it may not even be a
good idea. Various Secretaries of State and Parliamentary committees have
looked forward to simpler, clearer regulatory systems – but this could mean
treating everything according to the pluses and minuses of a particular medium,
even if the label of that medium was no longer in the text of the law. It is
one thing to try and treat all contracts and signatures alike, whether based on
paper and pen or an encrypted exchange between machines. It’s quite another
thing to say that the requirements (positive or negative) for content can be
identical however it is delivered or accessed – under-regulation and
over-regulation become apparent (and embarrassing) very quickly, as we saw with
the licensing legislation. This doesn’t mean that there should be hundreds of
silos; it’s more that the question about how medium-specific to be needs to be
asked and asked again in the law-making process. Even where convergence is
claimed, we often find a bunch of assumptions about platforms for communication
and how the message and medium intersect; one or more technologies is used as a
proxy for cultural value, for purported harms, or for a need to protect
consumers. We also find loud objections to treating things alike that are not
quite so alike after all.
So, we need to think like students of communications as well
as like lawyers. If we focus too much on what is elegant drafting or a
workable set of categories, or is driven by a seemingly convenient set of
changes in technology and the market, we might miss the point. Media law
benefits from a greater focus on the characteristics of each medium and of the
way in which a medium is defined and used in the law. As this issue goes to
print (or to your e-reader), Government is considering whether a new form of
content regulation for ‘the Internet’ is desirable. The upcoming exit from the
European Union also puts some of the laws discussed in Medium Law, such as on-demand services, intermediary liability, and
the creative tax credits, back on the table. Already, this has prompted debate
in Parliament about the regulation of social media services, amongst other
things. This is perfectly legitimate, but we ought to go about it carefully.
Many of the legislative changes mentioned in this article did not receive
proper scrutiny first time around; the entertainment licensing law is now a
mess of amended-amended-amendments, and other areas of great significance (such
as exemptions from mandatory regulation of video recordings and computer games)
are punted for later Ministerial action. Technological developments could
instead prompt reflection upon the effectiveness of existing legislation, and
the relationship between instruments drafted for various purposes at various
times.
Daithí Mac Síthigh is Professor of Law and Innovation at
Queen’s University Belfast. His book Medium
Law was published by Routledge in 2017.
