Analysis: EU Issues Paper Threatens Internet Expression Worldwide

The fairness doctrine--the requirement instituted in 1927 that U.S. broadcasters give equal time to candidates for public office—became a casualty of federal deregulation of the airwaves in 1987. But that regulation, better known as the "equal time rule," could soon return, though not to television and terrestrial radio. And, ironically, it might not even come from within the United States at all.

One of five "issues papers" unveiled by European Information Society and Media Commissioner Viviane Reding on July 12 called for the regulation of "non-linear audio-visual content" delivered via both the airwaves and the Web, including what Reding called a "statutory right of reply," whichh in essence requires that both viewpoints of a bi-partisan political issue be aired. Given U.S. agreements with the European Union and the fact that Web sites reach across the Atlantic, such regulation in the EU could limit the free expression that has been an integral part of the Internet’s success.

As noted on Reding’s Web site, the new rules would "cover—in a manner adapted to the type of service—audiovisual content services, whether linear or non-linear, whatever the delivery platform (e.g. broadcast, high-speed broadband, third generation mobiles). The objective is to provide a pro-competitive and flexible framework for audiovisual content services in Europe."

The new preliminary rules, then, seek to implement consistency across European television and Web broadcasts, including statutory right of reply.

According to an article by Dan Sabbagh of UK newspaper The Times, currently no government body has "legal power to force an Internet broadcaster to respect rules governing accuracy and impartiality or taste and decency that apply to all other analogue and digital broadcasters."

Many are not happy about the intentions of the EU to extend these rules to on-line and mobile mediums. "It is not appropriate to take the set of rules that apply to television and apply them to other media," Tim Suter, partner for content and standards with British media regulator Ofcom, told the newspaper. "Where possible, we should be looking at self-regulation or co-regulation, because that is something that can deliver the goods."

The bigger issue, however, concerns not just those traditional broadcasters that wish to simulcast their content on the Web or to mobile phones; rather, it's the wider implication that any "non-linear audio-visual content" on the Web could potentially be defined as a broadcast from the EU’s perspective. This would mean that any Web site, even those that have short snippets of video, could be subject to the statutory right of reply. The rules could also conceivably be expanded to cover any content that would be viewed by a European audience. Imagine, then, the scenario of a US-based Democratic National Committee (DNC) Web site that uses video clips to emphasize particular positions being required to also carry the Republican National Committee (RNC) rebuttal video clips—or vice-versa.

"This statutory right of reply suggested in this issue paper has the potential to hamstring political free speech in the United States and Europe," said Rosemary Roberts, producer with California-based creative services firm Girl on Point. "Whether you lean toward the DNC and MoveOn, or the RNC and the Christian Coalition, these rules force a 20th century constraint—limited media broadcasters—on a 21st century medium—Web-based video broadcasting with the potential for unlimited media broadcasters."

Roberts summed up the feeling of many when she stated, "The internet is, and should remain, an individually controlled, `opt-in’ environment, for which the freedom it offers in content remains one of the primary forces of its success."

According to Reding’s Web site, "Interested parties now have the opportunity to submit comments by 5 September. Following this final round of consultations, the Commission will present a proposal for the new EU rules, which will replace the Television Without Frontiers Directive of 1989."

Reding’s Web site provides email, fax, and postal mail contacts for the commissioner and members of her cabinet. Full access to the issues papers can be found here.