No CrossRef data available.
Article contents
The Impact of Regulatory Competition on Measures to Promote Pluralism and Cultural Diversity in the Audiovisual Sector
Published online by Cambridge University Press: 27 October 2017
Extract
Communications are being transformed by the combination of digital technology and a global media economy. There is increased convergence between traditional broadcasting, cable distribution, satellite broadcasting, telecommunications and the Internet, which has boosted the sheer volume of programming and information that can be conveyed, and extended its reach at both domestic and international levels. Many will see these developments as an opportunity to promote new media products and to rationalise their operations in a global market place. Others may be concerned that the need to compete successfully in that market place will threaten the survival of local and national cultural identity. In terms of policy and regulation, states may be tempted to emphasise trade and industrial policy, intended to improve transnational competitiveness, at the expense of media and cultural policy, aimed at protecting pluralism and diversity.
- Type
- Research Article
- Information
- Copyright
- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2007
References
1 Humphreys, P ‘Regulation for Media Pluralism: Issues in Ownership and Competition’ in Andrew, J et al (eds) Why Europe: Problems of Culture and Identity (Basingstoke, Macmillan, 2000), ii Google Scholar; Gibbons, T ‘De/re-regulating the System: the British Experience’ in Steemers, J (ed) Changing Channels: the Prospects for Television in a Digital World (Luton, John Libbey, 1998)Google Scholar.
2 For a recent masterful analysis see Silverstone, R Media and Morality: On the Rise of the Mediapolis (Cambridge, Polity Press, 2007)Google Scholar; see also Raboy, M (ed) Global Media Policy in the New Millennium (Luton, University of Luton Press, 2002)Google Scholar.
3 This forms part of a broader investigation, ‘Globalisation, Regulatory Competition and Audiovisual Regulation in 5 Countries’, a three-year ESRC funded project: (ESRC Ref. RES000-23-0966) conducted by the author, Professor Peter Humphreys of the School of Social Science at the University of Manchester, and Dr Alison Harcourt of the Department of Politics at the University of Exeter. The study will actually examine 6 jurisdictions—Canada, France, Germany, the United Kingdom, the United States, and the European Community—together with relevant activities of the WTO and UNESCO.
4 Cerny, P ‘Paradoxes of the Competition State: the Dynamics of Political Globalization’ (1997) 32 Government and Opposition 251 CrossRefGoogle Scholar.
5 For a discussion of the difficulties in actually achieving an efficient outcome, given the obstacles to a perfect market in regulatory rules, see Barnard, C ‘Social Dumping and the Race to the Bottom: Some Lessons for the European Union from Delaware?’ (2000) 25 EL Rev 57 Google Scholar.
6 Carey, WL ‘Federalism and Corporate Law: Reflections upon Delaware’ (1974) 83 Yale LR 663 CrossRefGoogle Scholar.
7 See Bratton, W et al (eds) International Regulatory Competition and Coordination (Oxford, Clarendon Press, 1996)Google Scholar.
8 Vogel, D Trading Up. Consumer and Environmental Regulation in a Global Economy (Cambridge Mass., Harvard University Press, 1995)Google Scholar.
9 For a valuable overview see Radaelli, C ‘The Puzzle of Regulatory Competition’ (2004) 24 Journal of Public Policy 1 CrossRefGoogle Scholar.
10 Murphy, DD The Structure of Regulatory Competition: Corporations and Public Policies in a Global Economy (Oxford, OUP, 2004)Google Scholar. See also Murphy, DD ‘Interjurisdictional Competition and Regulatory Advantage’ (2005) 8 Journal of International Economic Law 891 CrossRefGoogle Scholar.
11 Ibid, 916.
12 Braithwaite, J and Drahos, P Global Business Regulation (Cambridge, CUP, 2000)Google Scholar.
13 Ibid, 522–3.
14 Above n 9.
15 See Grant, PS and Wood, C Blockbusters and Trade Wars: Popular Culture in a Globalized World (Vancouver, Douglas & McIntyre, 2004)Google Scholar.
16 This is not the same as what Ogus describes as ‘facilitative law’ (such as contract or property law), which he distinguishes from ‘interventionist law’. The toolkit considered here consists primarily of what would be described as interventionist measures but their adoption does not necessarily lead to competition for laxity in regulation. See Ogus, A ‘Competition between National Systems: a Contribution of Economic Analysis to Comparative Law’ (1999) 48 ICLQ 405 CrossRefGoogle Scholar.
17 See Swank, D Global Capital, Political Institutions, and Policy Change in Developed Welfare States (Cambridge, CUP, 2002) 274 CrossRefGoogle Scholar.
18 Scharpf, F ‘Introduction: the Problem-solving Capacity of Multi-level Governance’ [1997] Journal of European Public Policy 520.
19 Levy, D Europe’s Digital Revolution: Broadcasting Regulation, the EU and the Nation State (London and New York, Routledge, 1997)Google Scholar.
20 On the broader issues involved here see generally Esty, DC and Geradin, D (eds) Regulatory Competition and Economic Integration: Comparative Perspectives (Oxford, OUP, 2001)Google Scholar.
21 In the wider project, see above n 3, we examine France as another example of a culturally protectionist jurisdiction.
22 In the wider project, Germany is taken as another example of a liberalising jurisdiction, and has the additional element of potential regulatory competition between the Länder . The project also examines the United States, because of the way that it exercises significant structural power in the global economy and in its governing institutions.
23 See Grant and Wood, above n 15.
24 In 1982, the policy survived a constitutional challenge in the Canadian Supreme Court, which upheld the relevant powers of the CRTC and held that, since there is no requirement as to the nature of the content that is Canadian, freedom of speech is not compromised: CTV Television Network v CRTC [1982] 1 SCR 530, 134 DLR(3d) 193.
25 See Building on Success—A Policy Framework for Canadian Television, Public Notice CRTC 1999-97, 11 June 1999; this should be read with Public Notice CRTC 1999-205, 23 Dec 1999.
26 Broadcasting Act 1991, s.3.
27 See above n 25. The quotas for particular channels vary greatly, from around 20% to more than 70% of gross revenue; details are provided in Grant, P et al., Regulatory Guide to Canadian Television (Toronto, McCarthy Tétrault, 2006)Google Scholar.
28 Broadcasting Act 1991, s 3(1)(a) and (d).
29 There is also an important international law dimension to Canada’s cultural policy. Under the GATS, Canada has not made a commitment in the audiovisual sector. Under the Canada–United States Free Trade Agreement (1988), which was superseded by the North American Free Trade Agreement (1994), it has been able to secure a cultural exception. More recently, Canada has been a prime advocate for the adoption of the UNESCO convention on the cultural diversity in 2005: see below nn 63–64.
30 The Access, Authorisation, Framework and Universal Service Directives: respectively, Directives 2002/19/EC, OJ 2002 L 108/7, 2002/20/EC, OJ 2002 L 108/21, and 2002/21/EC, OJ 2002 L 108/33 of the European Parliament and of the Council.
31 See Humphreys, P and Simpson, S Globalisation, Convergence and European Telecommunications Regulation (Cheltenham, Edward Elgar, 2005)Google Scholar.
32 Department of Trade and Industry and Department of Culture, Media and Sport A New Future for Communications Cm. 5010 (London, HMSO, 2000), especially paras 1.2.1, 1.2.3, 2.7.1, 5.6.10 and 7.8.1.
33 Communications Act 2003, ss 348–350 and Sch 14.
34 See Gibbons, T Regulating the Media 2nd edn (London, Sweet & Maxwell, 1998) 211–23Google Scholar.
35 Including the issue of state aid.
36 Communications Act 2003, ss 232–240 (television licensable services) and, generally, Ch 4 of the same Act.
37 Ibid, s 319.
38 See Ofcom, Public Service Broadcasting Review Phase 3: Competition for Quality (London, Ofcom, 2005)Google Scholar. Ofcom has mooted the creation of a Public Service Provider to fill the gap.
39 Schmidt, VA ‘Convergent Pressures, Divergent Responses: France, Great Britain, and Germany between Globalization and Europeanization’ in Smith, DA et al (eds), States and Sovereignty in the Global Economy (London and New York, Routledge, 1999) 172 Google Scholar.
40 Woolcock, S The Single European Market: Centralization or Competition Among National Rules? (London, RIIA, 1994)Google Scholar; Sun, J-M and Pelkmans, J ‘Regulatory Competition and the Single Market’ (1995) 33 Journal of Common Market Studies 67 CrossRefGoogle Scholar; Goodhart, D ‘Social Dumping within the EU’ in Hine, D and Kassim, H (eds) Beyond the Market: the EU and National Social Policy (London and New York, Routledge, 1998)Google Scholar; and Radaelli, above n 9.
41 Council Directive 89/552/EEC on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298/23), together with any modifications of that Directive by Directive 97/36/EC of the European Parliament and the Council (OJ 1997 L 202/60). For historical background see Collins, R Broadcasting and Audio-visual Policy in the European Single Market (London, John Libbey, 1994)Google Scholar and Humphreys, P Mass Media and Media Policy in Western Europe (Manchester, Manchester University Press, 1996)Google Scholar; see also Collins, R Culture, Communication and National Identity: The Case of Canadian Television (Toronto, University of Toronto Press, 1990) ch 8 CrossRefGoogle Scholar.
42 See Barnard, C and Deakin, S ‘Market Access and Regulatory Competition’ in Barnard, C and Scott, J (eds) The Law of the Single European Market: Unpacking the Premises (Oxford, Hart Publishing, 2002)Google Scholar.
43 Braithwaite, J and Drahos, P, above n 12, 10, make the point that globalised rules and principles typically operate without enforcement, largely because, through webs of influence in epistemic communities, regulatory systems and firms accept them as working norms.
44 See Harcourt, A The European Union and the Regulation of Media Markets (Manchester, Manchester University Press, 2005)Google Scholar.
45 Partly taking advantage of an ambiguity in the 1989 Directive, above n 41, which offered the opportunity of licensing a satellite broadcaster on the basis of a UK uplink—until the sole criterion of establishment was confirmed by the ECJ: Case C–222/94, Commission v UK [1996] ECR I–4025; [1996] 3 CMLR 793.
46 See Levy, D Europe’s Digital Revolution: Broadcasting Regulation, the EU and the Nation State (London, Routledge, 1999)CrossRefGoogle Scholar.
47 See above n 34.
48 See Schon, W ‘Playing Different Games? Regulatory Competition in Tax and Company Law Compared’ (2005) 42 CML Rev 331 Google Scholar; see also Bratton et al, above n 7, and Braithwaite, J and Drahos, P, above n 12.
49 Case C–148/91, Vereneging Veronica Omroep Organisatie v Commissariat voor de Media [1993] ECR I–487.
50 Case C–23/93, TV10 v Commissariat voor de Media [1994] ECR I–4795.
51 The existence of the public service broadcasting monopoly was not in issue but its continuation would be challengeable under the EC Treaty. Although the monopoly would not in itself breach the EC Treaty (Art 86 (ex 90), and Case 155/73, Italy v Saachi [1974] ECR 409), its operation would have to comply with the provisions relating to state aid (Communication from the Commission on the Application of State Aid Rules to Public Service Broadcasting, OJ 2001 C 320/5) and could lead to an abuse of a dominant position if it discriminated against foreign competitors (Case C–260/89, ERT [1991] ECR I–2925). The Protocol to the Amsterdam Treaty recognises that public service broadcast funding should not affect trading conditions and competition to an extent contrary to the common interest.
52 Case C–11/95, Commission v Belgium [1996] ECR I–4117.
53 Case C–56/96, VT4 v Vlaamse Gemeenschap [1997] ECR I–3143.
54 The question of establishment was not contentious here. In the broadcasting sector, following the decision in Commission v United Kingdom, above n 44, the 1997 revision to the Television without Frontiers Directive, above n 40, provided more detailed guidance about the concept. Further fine-tuning is being proposed in the draft AMSD, below n 56, but the issue does not appear to have created the difficulties experienced in other sectors in the common market.
55 Joined Cases C–34/95, Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB and C–35 and 36/95 TV-Shop i Sverige AB [1997] ECR I–3843.
56 However, it left open the possibility, which was for the domestic courts to consider, that an overriding public interest in consumer protection was engaged.
57 Draft Audiovisual Media Services Directive, 2005/0260 (COD), 29 Mar 2007, available at http://ec.europa.eu/comm/avpolicy/docs/reg/modernisation/proposal_2005/avmsd_cons_ amend_0307_en.pdf.
58 Case 33/74, Van Binsbegen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299.
59 See Katsirea, I ‘The Circumvention Principle: an Effective Defence of National Broadcasting Systems against Abuse?’ (2005) 10 Communications Law 130 Google Scholar.
60 Endorsed by the Protocol to the Amsterdam Treaty.
61 Commission Staff Working Document Media Pluralism in the Member States of the European Union, SEC(2007)32, 16 Jan 2007.
62 In this context, the European Commission’s attitude to state aid for public service broadcasting in the new media environment may be critical. For an optimistic view of the Commission’s willingness to protect public service see Prosser, T The Limits of Competition Law: Markets and Public Services (Oxford, OUP, 2005) ch 9 CrossRefGoogle Scholar.
63 UNESCO Universal Declaration on Cultural Diversity, Adopted by the 31st Session of UNESCO’s General Conference, Paris, 2 Nov 2001.
64 This dimension is part of the current research project. For discussion of the legal issues see Graber, CB ‘The New UNESCO Convention on Cultural Diversity: a Counterbalance to the WTO?’ (2006) 09 Journal of International Economic Law 553 Google Scholar; Voon, T ‘UNESCO and WTO: a Clash of Cultures?’ (2006) 55 ICLQ 635 CrossRefGoogle Scholar. For wider discussion see Grant, PS and Wood, C, above n 15.
65 Braithwaite, J and Drahos, P, above n 12, make the point that the concept of the ‘new regulatory state’ involves the state not so much running things as regulating them and monitoring self-regulation. They also suggest (at 28) that the impact of self-regulatory organisations is often more important in epistemic communities where debates about regulatory design are framed.
- 1
- Cited by