The C onvergence Challenge

1. The Convergence Challenge Dr Sharon Azzopardi

2. What is Convergence? k

3. Convergence k The era for Johannes Gutenberg is over. A new digital technology has emerged.

4. Converging Technologies k • VoIP; • IP TV/radio; • Audiovisual media services; • Online music stores and P2P; • Social networking; • Online newspapers; blogs; magazines; books; • Online banking; • Email, data and internet access on mobile phones; • Online auctions and transactions; • Virtual worlds with virtual currencies.

5. Convergence and Regulation Different Services = Different Media Platforms = Different Regulations Regulatory disconnect? E.g. defamation law Regulatory Challenges:  Can traditional laws regulating traditional media be applied to regulate converged technologies?  Can one regulate converging technologies and how? Issues include: - Communications regulations and VoIP - Privacy regulation and the Cloud - Audio visual media services and regulations

6. Regulatory Uncertainty: Communications law and VoIP k VoIP Voice over Internet Protocol means the use of IP technology to provide phone calls either from a personal computer and dedicated handset or a traditional telephone handset, using an adapter to digitise the message

7. Regulatory Uncertainty: Communications law and VoIP k VoIP: Regulatory Challenges • Is VoIP an ECS or simply online software enabling transmission of audio/visual data? ‘electronic communications service’ means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, includingtelecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services…. which do not consist wholly or mainly in the conveyance of signals on electronic communications networks; • Obligations imposed by regulation e.g. Universal Services (emergency calls, directory enquiry services, quality of services, special measures for disabled users, number portability)

8. Regulatory Uncertainty: Communications law and VoIP k VoIP: EU Regime • 1998 Commission Notice on the Status of Voice Communication on the Internet • NRF: Consultation Document on the Treatment of Voice over Internet Protocol under the EU Regulatory Framework • Available to the public? • ‘Smells, looks and feels like’ an electronic communications service? • Marketed as a substitute/perceived by the consumer as a substitute to voice telephony? • Consumers’ sole means of access?

9. Regulatory Uncertainty: Privacy and the Cloud k Cloud Computing

10. Regulatory Uncertainty: Privacy and the Cloud The Cloud and Privacy Regulation k

11. Regulatory Uncertainty: Privacy and the Cloud The Cloud and Privacy Regulation Data Controller: determines the means and purposes of the data processingData Processor: processes data on the instructions of the Data Controller Difficulties for Regulation: Is a cloud operator a controller or a processor? WP 29 Opinion 1/2010: “the first and foremost role of the concept of controller is to determine who shall be responsible for compliance with data protection rules, and how data subjects can exercise the rights in practice.” WP 29 Opinion 5/2012: “The cloud client determines the ultimate purpose of the processing and decides on the outsourcing of this processing and the delegation of all or part of the processing activities to an external organisation. The cloud client therefore acts as a data controller.” WP 29 Opinion 5/2012: “When the cloud provider supplies the means and the platform, acting on behalf of the cloud client, the cloud provider is considered as a data processor” but “there may be situations in which a provider of cloud services may be considered either as a joint controller or as a controller in their own right depending on concrete circumstances. For instance, this could be the case where the provider processes data for its own purposes.”

12. Regulatory Uncertainty: AVMS k The Audio Visual Media Services Directive 2010/13/EU • Problems facing lawmakers are illustrated in the EU’s attempt to clarify the application of television regulation to online audiovisual content • Aim: • Platform neutrality: common rules for all services • to maintain the regulatory control for TV programming, whether delivered by traditional broadcasting (linear) or online (non linear) • Free movement of broadcasting/audiovisual media services

13. Regulatory Uncertainty: AVMS k The Audio Visual Media Services Directive 2010/13/EU WHO IS IN & WHO IS OUT? Determining whether an online activity is subject to this Directive: • Directed at the general public • Principal purpose is provision of programmes • Intended to inform, educate and entertain • Operator editorial responsibility of the choice of the audiovisual content i.e. effective control over selection of programmes and organisation

14. Regulatory Uncertainty? k Other Challenges: • Difficulty to identify simple concepts to apply to a complex and dynamic environment • Technology Neutrality: technology indifference EU Communication Regulations:  “All transmission networks and services shouldbe covered by a single regulatory framework”  “Member States should take the utmost account of the desirability of making regulations technologically neutral.” • Difficulty in distinguishing between information society service e.g. ISPs (regulated by E-Commerce Act), and an electronic communication service (regulated by E-Communications Regulation) • Multiple authorities whose roles overlap • Regulatory convergence required e.g. telecoms law, data protection law, IT law? - as an example to this: Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications 

15. Approach to Regulation k Regulation should be: • Fair with consistent rules for all providers; • Transparent with decisions fully explained; • Accountable with appropriate means of redress available; • Informed by technical and industrial expertise; • Coherent without a plethora of bodies duplicating responsibilities; • Self regulation?

16. Thank You! Email: sharon.azzopardi@camilleripreziosi.com