The Implementation of the Audiovisual Media Services Directive by National Regulatory Authorities National Responses to Regulatory Challenges

The Audiovisual Media Services Directive (AVMSD) which regulates broadcasting and on-demand audiovisual media services is at the nexus of current discussions about the convergence of media. The Green Paper of the Commission of April 2013 reflects the struggle of the European Union to come to terms with the phenomenon of convergence and highlights current legal uncertainties. The (theoretical) quest for an appropriate and future-oriented regulatory framework at the European level may be contrasted to the practice of national regulatory authorities. When faced with new media services and new business models, national regulators will inevitably have to make decisions and choices that take into account providers’ interests to offer their services as well as viewers’ interests to receive information. This balancing act performed by national regulators may tip towards the former or latter depending on the national legal framework; social, political and economic considerations; as well as cultural perceptions. This paper thus examines how certain rules contained in the AVMSD are applied by national regulators. It focuses first on the definition of an on-demand audiovisual media service and its scope. Second, it analyses the measures adopted with a view to protection minors in on-demand services and third discusses national approaches towards the promotion of European works in on-demand services. It aims at underlining the significance of national regulatory authorities and the guidelines these adopt to clarify the rules of a key EU Directive of the “media law acquis”.

The Regulatory Framework for Nanomaterials at a Global Level: SAICM and WTO Insights

The regulation of nanomaterials is being discussed at various levels. This article offers a historical description of governmental activities concerning the safety of nanomaterials at the United Nations (UN) level since 2006, with a focus on the UN Strategic Approach to International Chemicals Management (SAICM). The outcomes of the SAICM process were a nanospecific resolution and the addition of new activities on nanotechnologies and manufactured nanomaterials to the SAICM’s Global Plan of Action. The article discusses the implications of these decisions for multilateral environmental agreements. In addition, it studies the consequences of the regulation of nanotechnologies activities on trade governance, in particular the relationship between the SAICM to the legally binding World Trade Organization (WTO) agreements (notably the General Agreement on Tariffs and Trade and the Agreement on Technical Barriers to Trade). The article concludes that the SAICM decisions on manufactured nanomaterials are compatible with WTO law.

The Regulatory Framework for Nanomaterials at a Global Level: SAICM and WTO Insights

The regulation of nanomaterials is being discussed at various levels. This article offers a historical description of governmental activities concerning the safety of nanomaterials at the United Nations (UN) level since 2006, with a focus on the UN Strategic Approach to International Chemicals Management (SAICM). The outcomes of the SAICM process were a nanospecific resolution and the addition of new activities on nanotechnologies and manufactured nanomaterials to the SAICM’s Global Plan of Action. The article discusses the implications of these decisions for multilateral environmental agreements. In addition, it studies the consequences of the regulation of nanotechnologies activities on trade governance, in particular the relationship between the SAICM to the legally binding World Trade Organization (WTO) agreements (notably the General Agreement on Tariffs and Trade and the Agreement on Technical Barriers to Trade). The article concludes that the SAICM decisions on manufactured nanomaterials are compatible with WTO law.

A discourse-theoretic approach to negotiated rulemaking

In 1996 and in 1997, Congress ordered the Secretary of Health and Human Services to undertake a process of negotiated rulemaking, which is authorized under the Negotiated Rulemaking Act of 1990, on three separate rulemaking matters. Other Federal agencies, including the Environmental Protection Agency and the Occupational Health and Safety Administration, have also made use of this procedure. As part of the program to reinvent government, President Clinton has issued an executive order requiring federal agencies to engage in some negotiated rulemaking procedures. I present an analytic, interpretative and critical approach to looking at the statutory and regulatory provisions for negotiated rulemaking as related to issues of democratic governance surrounding the problem of delegation of legislative power. The paradigm of law delineated by Jürgen Habermas, which sets law the task of achieving social or value integration as well as integration of systems, provides the background theory for a critique of such processes. My research questions are two. First, why should a citizen obey a regulation which is the result of negotiation by directly interested parties? Second, what is the potential effect of negotiated rulemaking on other institutions for deliberative democracy? For the internal critique I argue that the procedures for negotiated rulemaking will not produce among the participants the agreement and cooperation which is the legislative intent. For the external critique I argue that negotiated rulemaking will not result in democratically-legitimated regulation. In addition, the practice of negotiated rulemaking will further weaken the functioning of the public sphere, as Habermas theorizes it, as the central institution of deliberative democracy. The primary implication is the need to mitigate further development of administrative agencies as isolated, self-regulating systems, which have been loosened from the controls of democratic governance, through the development of a robust public sphere in which affected persons may achieve mutual understanding. ^

Reconciling Trade and Culture : A Global Law Perspective

This article provides an overview of the most essential issues in the trade and culture discourse from a global law perspective. It looks into the intensified disconnect between trade and culture and exposes its flaws and the considerable drawbacks that it brings with it. It is argued that these drawbacks become especially pronounced in the digital media environment, which has strongly affected both the conditions of trade with cultural products and services and cultural diversity in local and global contexts. In this modified setting, there could have been a number of feasible ‘trade and culture’ solutions – i.e. regulatory designs that whilst enhancing trade liberalisation are also conducive to cultural policy. Yet, the realisation of any of these options becomes chimerical as the line between trade and culture matters is drawn in a clear and resolute manner. The article is meant for an interdisciplinary audience and forthcoming in the Journal of Arts Management, Law and Society.

Defining Regulatory Objectives for Contemporary Electronic Communications : Between a Rock and a Hard Place

Goal evaluation is an essential element of the process of designing regulatory frameworks. Lawyers and legal scholars do however tend to ignore it. The present paper stresses the importance of pinpointing the precise regulatory objectives in the fluid environment of electronic communications, since, due to their technological and economic development, they have become the vital basis for communication and distribution of information in modern societies. The paper attempts an analysis of the underlying regulatory objectives in contemporary communications and seeks to put together the complex puzzle of economic and societal issues.

The Law of the WTO and the Communications Law of the EC : On a Path of Harmony or Discord?

This paper presents an overview of the law of the World Trade Organization (WTO) relevant to telecommunications services and correlates this body of law with the current regulatory framework for electronic communications networks and services in the European Community. The latter has been adapted to meet the challenges of technological and market developments in communications, epitomized by the processes of digitization, enhanced transport networks and convergence. The novel solutions embodied in the EC electronic communications regime, notably, a new design of the Significant Market Power mechanism, a projected withdrawal of sector specific regulation and an affirmation of the principle of technological neutrality, pose interesting questions as to the conformity of this reformed EC communications law with the WTO rules on telecommunications services and the obligations of the European Communities and their Member States. Looking beyond the WTO legal compatibility test, essential questions regarding the need for evolution of the WTO telecommunications rules are raised. The present paper contributes to the ongoing debate in that context in light of the EC experience.

EC Electronic Communications and Competition Law

Telecommunications have developed at an incredible speed over the last couple of decades. The decreasing size of our phones and the increasing number of ways in which we can communicate are barely the only result of this (r)evolutionary development. The latter has indeed multiple implications. The change of paradigm for telecommunications regulation, epitomised by the processes of liberalisation and reregulation, was not sufficient to answer all regulatory questions pertinent to communications. Today, after the transition from monopoly to competition, we are faced perhaps with an even harder regulatory puzzle, since we must figure out how to regulate a sector that is as dynamic and as unpredictable as electronic communications have proven to be, and as vital and fundamental to the economy and to society at large. The present book addresses the regulatory puzzle of contemporary electronic communications and suggests the outlines of a coherent model for their regulation. The search for such a model involves essentially deliberations on the question "Can competition law do it all?", since generic competition rules are largely seen as the appropriate regulatory tool for the communications domain. The latter perception has been the gist of the 2002 reform of the European Community (EC) telecommunications regime, which envisages a withdrawal of sectoral regulation, as communications markets become effectively competitive and ultimately bestows the regulation of the sector upon competition law only. The book argues that the question of whether competition law is the appropriate tool needs to be examined not in the conventional contexts of sector specific rules versus competition rules or deregulation versus regulation but in a broader governance context. Consequently, the reader is provided with an insight into the workings and specific characteristics of the communications sector as network-bound, converging, dynamic and endowed with a special societal role and function. A thorough evaluation of the regulatory objectives in the communications environment contributes further to the comprehensive picture of the communications industry. Upon this carefully prepared basis, the book analyses the communications regulatory toolkit. It explores the interplay between sectoral communications regulation, competition rules (in particular Article 82 of the EC Treaty) and the rules of the World Trade Organization (WTO) relevant to telecommunications services. The in-depth analysis of multilevel construct of EC communications law is up-to-date and takes into account important recent developments in the EC competition law in practice, in particular in the field of refusal to supply and tying, of the reform of the EC electronic communications framework and new decisions of the WTO dispute settlement body, such as notably the Mexico-Telecommunications Services Panel Report. Upon these building elements, an assessment of the regulatory potential of the EC competition rules is made. The conclusions drawn are beyond the scope of the current situation of EC electronic communications and the applicable law and explore the possible contours of an optimal regulatory framework for modern communications. The book is of particular interest to communications and antitrust law experts, as well as policy makers, government agencies, consultancies and think-tanks active in the field. Experts on other network industries (such as electricity or postal communications) can also profit from the substantial experience gathered in the communications sector as the most advanced one in terms of liberalisation and reregulation.

Controlling New Media (without the Law)

The purpose of this paper is to explore some emerging modes of control that are evolving wholly or partially outside conventional media law. We focus in particular on the entirely novel mechanisms of control enabled through code and technology in general. We compare these new models with traditional regulatory bodies and their decision-making processes and, making reference to the values and interests that are embedded in the design of mediating technologies, ask whether the new tools of control are appropriate for achieving public policy objectives in a complex new-and-old media landscape, or whether in fact they introduce some dangers.

European Community Communications Law : An Introduction

The present article is an abridged version of a chapter to the book EC Electronic Communications and Competition Law (London: Cameron May, 2007). It provides an introduction to the rules at the European Community level governing the electronic communications sector (previously and more traditionally referred to as telecommunications). Such an introduction encompasses essentially an enquiry into the relevant competition law rules, of which here particular attention is paid to abuse of dominant position and the essential facilities doctrine, as well as an analysis of the EC sector specific regulatory framework, which has substantially evolved since the liberalisation of the telecommunications sector back in the beginning of the 1990s. It is the objective of the article to explore to what extent both regulatory tools could deal with the specificities of communications markets, and where they may fail to do so.

Rezension zu: Irini Katsirea, Public Broadcasting and European Law

Public broadcasting has always been a regulatory field somewhat zealously guarded within the nation states' sphere and kept willingly untouched by regional or international rules. Values inherent to the role of public broadcasting, such as cultural and national identity, social cohesion, pluralism and a sustained public sphere, were thought too critical and too historically connected with the particular society to allow any "outside" influence. Different regulatory models have emerged to reflect these specificities within the national boundaries of European countries. Yet, as media evolved technologically and economically, the constraints of state borders were rendered obsolete and the inner tension between culture and commerce of the television medium became more pronounced. This tension was only intensified with the formulation of a European Community (EC) layer of regulation, which had as its primary objective the creation of a single market for audiovisual services (or as the EC Directive beautifully put it, a "Television without Frontiers"), while also including some provisions catering for cultural concerns, such as the infamous quota system for European and independent productions. Against this backdrop, public broadcasting makes a particularly intriguing subject for a study of regulatory dilemmas of national versus supranational, integration versus intergovernmentalism, culture versus commerce, intervention versus liberalisation, and all this in the dynamic setting of contemporary media. The present paper reviews Irini Katsirea's book PUBLIC BROADCASTING AND EUROPEAN LAW and seeks to identify whether all elements of the complex governance puzzle of European public service broadcasting rules are analytically well fitted together.

Regulatory Objectives for Contemporary Electronic Communications : Talking Business or Talking Culture?

The common mantra in telecommunications regulatory fora (be it national, regional or international) now goes along the lines of 'deregulation-good; regulation-bad' and competition is said to be the ultimate answer to basically every question. A generalised dictum like this is in itself suspicious and even more so, when it refers to a sector such as telecommunications, which has a history of heavy regulation and has been the very epitome of state intervention. In the contemporary environment of vibrant communications, subcribing to a purely 'black-or-white' aproach may be, to put it mildly, unsafe. Before answering the question of appropriate regulatory model for communications markets, it is essential to figure out what goals are to be pursued in order to consider what kind of measures could bring about their attainment. In the words of Robert Bork, 'only when the issue of goals has been settled is it possible to frame a coherent body of substantive rules'. Against this backdrop, the present paper looks into the goals and objectives of telecommunications regulation, their complexity and inherent tension between commercial and public interests.

Book Review: M. Holoubek, D. Damjanovic, M. Trainer: Regulating Content. The European Regulatory Framework for the Media and Related Creative Sectors

Review of 'Regulating Content - The European Regulatory Framework for the Media and Related Creative Sectors', by M. Holoubek, D. Damjanovic, M. Trainer (Alphen aan den Rijn: Kluwer Law International, 2007), including some thoughts on contemporary media regulation.

A pilot test of the new Swiss regulatory procedure for categorizing clinical trials by risk: A randomized controlled trial

BACKGROUND/AIMS Several countries are working to adapt clinical trial regulations to align the approval process to the level of risk for trial participants. The optimal framework to categorize clinical trials according to risk remains unclear, however. Switzerland is the first European country to adopt a risk-based categorization procedure in January 2014. We assessed how accurately and consistently clinical trials are categorized using two different approaches: an approach using criteria set forth in the new law (concept) or an intuitive approach (ad hoc). METHODS This was a randomized controlled trial with a method-comparison study nested in each arm. We used clinical trial protocols from eight Swiss ethics committees approved between 2010 and 2011. Protocols were randomly assigned to be categorized in one of three risk categories using the concept or the ad hoc approach. Each protocol was independently categorized by the trial's sponsor, a group of experts and the approving ethics committee. The primary outcome was the difference in categorization agreement between the expert group and sponsors across arms. Linear weighted kappa was used to quantify agreements, with the difference between kappas being the primary effect measure. RESULTS We included 142 of 231 protocols in the final analysis (concept = 78; ad hoc = 64). Raw agreement between the expert group and sponsors was 0.74 in the concept and 0.78 in the ad hoc arm. Chance-corrected agreement was higher in the ad hoc (kappa: 0.34 (95% confidence interval = 0.10-0.58)) than in the concept arm (0.27 (0.06-0.50)), but the difference was not significant (p = 0.67). LIMITATIONS The main limitation was the large number of protocols excluded from the analysis mostly because they did not fit with the clinical trial definition of the new law. CONCLUSION A structured risk categorization approach was not better than an ad hoc approach. Laws introducing risk-based approaches should provide guidelines, examples and templates to ensure correct application.