Joint Committee on The Draft Communications Bill Appendices to the Minutes of Evidence


APPENDIX 66

Memorandum submitted by The Walt Disney Company Limited ("Disney")

  The Walt Disney Company Limited ("Disney") hereby submits the following preliminary comments on the draft Communications Bill. Disney was unable to prepare a full set of comments to the Joint Committee due to the short time available in which to do so, but we will be submitting additional comments to the Government over the course of the next several weeks. For the purposes of the Joint Committee's consultation, however, there is one matter of particular importance that we would wish to raise for your consideration.

  Section 3.2 of the draft Bill provides that OFCOM shall not have any power to regulate content on the Internet. Disney fully supports the proposition that as a general rule, Government should not be involved in regulating content on the Internet. In fact, Disney strongly opposes any Government intervention, or the exercise of any private sector market power, that would inhibit the ability of consumers to access any content of their choosing on the Internet. The "end-to-end" architecture of the Internet, which enables consumers to connect to any server on the Web, must be protected against abrogation by either Government or private sector forces. For these reasons, Disney strongly supports the provisions of the draft Bill that empower OFCOM to impose safeguards on platform and network operators to ensure that infrastructural gatekeepers are reasonably constrained from exercising their market power in a manner that would limit a consumer's access to the content of his/her choice.

  Notwithstanding our general opposition to Government regulation of content on the Internet, Disney acknowledges that there are certain public policy objectives that may necessitate some degree of involvement on the part of the Government in the form of facilitation and/or co-regulation. The explanatory "Guide" to the draft Communications Bill issued by the Departments of Trade & Industry and Culture, Media & Sport (at Section 3.2.2) explains that in its approach to the Internet, "OFCOM will work alongside industry in developing systems that continue to safeguard children, citizens and business." Disney suggests that the draft Communications Bill be amended to provide explicit authorisation to OFCOM to engage in co-regulatory approaches to facilitate the establishment of open technical standards that will advance three specific public policy objectives. Those public policy objectives are (1) to protect sensitive personal information on the Internet, (2) to protect copyrighted works on the Internet and (3) to empower (but not require) parents to utilise filtering mechanisms to protect children from harmful content. Disney believes that the provision of explicit statutory authority is necessary for the avoidance of any doubt regarding the scope of OFCOM's authority to engage in co-regulatory approaches to the establishment of the technical standards necessary and appropriate to achieve these important public policy objectives.

  Facilitating the establishment of technical standards is a time honoured and traditional function of Governments around the world. At the same time, the private sector is best equipped to develop the actual technical standards. However, without the encouragement of creative Government "carrots and sticks," the existence of divisions within the private sector could substantially delay, or even prevent, the necessary consensus regarding technical standards. There is also a danger of closed proprietary standards that could give rise to undesirable "gate keeping" of the Internet. Therefore, this Bill presents a perfect opportunity to implement an innovative co-regulatory approach in which Government encouragement and oversight is blended with private sector expertise.

  The "bit" of data does not know whether it is a credit card number, a sensitive medical record, a copyrighted film or a piece of harmful content trying to reach young children. Without resorting to censorship, the Government (in this case OFCOM), can and should facilitate the establishment of open technical standards that will allow consumers to manage the distribution of these "bits" to protect sensitive personal information, protect copyrighted works and empower parents to employ filtering mechanisms to protect their children.

  To be clear, Disney does not propose or envision a heavy handed scheme of Government regulation. On the contrary, we simply suggest that the draft Communications Bill be revised to clarify that OFCOM has the authority to undertake co-regulatory approaches to the establishment of technical standards to achieve the public policy objectives outlined above. Suggested statutory language is attached to this letter for ease of reference. We would be happy to engage with you further on this matter if that would be helpful. Please do not hesitate to contact us.

June 2002

Attachment

Proposed Amendments to Draft Communications Bill

AMEND PART 1 (FUNCTIONS OF OFCOM), SECTION 3 (GENERAL DUTIES OF OFCOM), SUBSECTION (1) TO READ AS FOLLOWS:
  (1)  It shall be the duty of OFCOM, in carrying out their functions:

    (a)  to further the interest of the persons who are customers for the services and facilities in relation which OFCOM have functions;

    (b)  to promote competition in the provision and making available of those services and facilities;

    (c)  to encourage, in the interest of all persons, the optimal use for wireless telegraphy of the electro-magnetic spectrum;

    (d)  to secure, so far as practicable, that a wide range of television and radio services are available throughout the United Kingdom;

    (e)  to secure, so far as practicable, that the range of television and radio services that are available throughout the United Kingdom comprise services which (taken as a whole) are both of high quality and calculated to appeal to a variety of tastes and interests;

    (f)  to secure, so far as practicable and in the manner that best takes account of the need to guarantee an appropriate level of freedom of expression, that generally accepted standards are applied so as to provide adequate protection for members of the public from the inclusion of offensive and harmful material in television and radio services; and

    (g)  to secure, so far as practicable and in the manner that best takes account of the need to guarantee an appropriate level of freedom of expression, that all persons are provided with adequate protection from—

    (i)  unfair treatment in programmes included in television and radio services; and

    (ii)  unwarranted infringement of privacy resulting from activities carried on for the purpose of such services; and

    (h)  to secure, so far as practicable and in the manner that best takes account of the need to protect personal data, to protect copyrighted content, and to empower parents to protect children from harmful content, that open standards for technological security systems are established and implemented.

AMEND PART 1, SECTION 3, SUBSECTION (2) TO READ AS FOLLOWS:
  (2)  In performing their duties under subsection (1), OFCOM shall have regard, in particular, to such of the following as appear to them to be relevant in the circumstances—

    (a)  the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed;

    (b)  any other principles appearing to OFCOM to represent the best regulatory practice;

    (c)  the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection;

    (d)  the needs of persons with disabilities, of the elderly and of those on low incomes;

    (e)  the desirability of preventing crime and disorder;

    (f)  the opinions of customers for the services and facilities in relation to which OFCOM have functions and of members of the public generally;

    (g)  the different interests of persons in the different parts of the United Kingdom;

    (h)  the different interests of those living in rural and in urban areas;

    (i)  the desirability of open standards for technological security systems to prevent unauthorized use of personal data and copyrighted content.


AMEND PART 2 (NETWORKS, SERVICES AND THE RADIO SPECTRUM), SECTION 38 (MATTERS TO WHICH GENERAL CONDITIONS MAY RELATE), SUBSECTION (1) TO READ AS FOLLOWS:
  (1)  Subject to sections 39 to 49, the only conditions that may be set under section 35 as general conditions are conditions falling within one or more of the following paragraphs—

    (a)  conditions making such provision as OFCOM consider appropriate for protecting the interests of the end-users of public electronic communications services;

    (b)  conditions making such provision as OFCOM consider appropriate for securing service operability and for securing, or otherwise relating to, network access;

    (c)  conditions making such provision as OFCOM consider appropriate for securing the proper and effective functioning of public electronic communications networks;

    (d)  conditions about the broadcasting or other transmission by means of an electronic communications network, or as part of an electronic communications service, of a television program containing matters which are harmful to persons under the age of eighteen;

    (e)  conditions for giving effect to determinations or regulations made under section 56;

    (f)  conditions requiring or regulating the provision, availability and use, in the event of a disaster, of electronic communications networks, electronic communications services and associated facilities;

    (g)  conditions making such provision as OSCOM consider appropriate for securing the protection of public health by the prevention or avoidance of the exposure of individuals to electro-magnetic fields created in connection with the operation of electronic communications networks;

    (h)  conditions requiring compliance with relevant international standards;

    (i)  conditions requiring devices used to reproduce, convert, retrieve or access data or content through electronic communications networks or services to include technological security systems in compliance with such standards as OFCOM consider appropriate for protecting personal data, protecting copyrighted content and empowering parents to protect children from harmful content.


 
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