Drafted by Sanjana Hattotuwa, Senior Researcher, Centre for Policy Alternatives. Not to be quoted without attribution.
- (Used as a background note in the discussion on the regulations with Beyond Borders on 22nd November 2008)
- Download the proposed regulations here.
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1. The absence of any definition of broadcasting results in a number of significant problems. To broadcast means to transmit to every receiving station within a geographic area. Terrestrial TV, FM and AM radio are examples of broadcast networks. Terrestrial analog broadcasting involves a linear programming schedule – at a certain time of day, a specific programme will be exclusively shown on a particular channel to which anyone within the geographical footprint of the broadcast and with requisite equipment can tune into.
2. Any definition of broadcasting is also inextricably tied to a mass media. A broadcaster transmits content to a significant proportion of the general public. Examples of broadcasters in Sri Lanka include Rupavahini, Ada Derana, SLBC and Shree FM.
3. Broadcasting is one-to-many transmission of information. Any terrestrial analog TV broadcast can be tuned into by anyone with an Ultra-High Frequency (UHF), Very High Frequency (VHF) antenna. It is technically impossible to limit the reception of a broadcast to a select audience or group of persons within the footprint of said broadcast.
4. A broadcast is not a two-way conversation with the audience. All analog radios and televisions in Sri Lanka are incapable of transmitting information, only receiving. Live audience participation can only occur through independent telephony and not through the terrestrial broadcast spectrum.
5. Ergo, the conflation of terrestrial, cable, satellite, Internet and mobile telephony based broadcasting in Regulation 2 (b) (i), 2 (b) (ii), 2 (b) (iii), 2 (b) (iv) and 2 (b) (V) respectively is exceedingly problematic since a common definition of broadcasting cannot and does not apply to these diverse delivery platforms and modes.
6. While broadcast regulations were the result of, and exist on account of the scarcity of the electromagnetic spectrum available for the transmission of audio-visual and other information over the air, the vastly different and superior technical and physical characteristics of satellite, cable based and particularly Internet based broadcasting render meaningless broadcast regulations based on spectrum management. The Internet is different from other communications media, including terrestrial spectrum based broadcast media in that individuals have the option of accessing and receiving video content from a potentially infinite number of sources, although their ability to do so may be constrained by technical issues such as bandwidth availability, quality of service in broadband connections and content viewing restrictions of countries where servers or producers are located.
7. Read in conjunction with Regulation 2 (e), Regulation 2 (b) (iv) is particularly problematic, since it does not demonstrate an understanding of (a) the vastly different models of television delivery using the Internet or related to this point (b) recognise the vital distinction between a broadcaster and a user who generates tele-visual content for distribution via the Internet.
8. First, with regard to Point 7 (a) in this document, the first and to date only broadcaster of television under the basis of the method enumerated in Regulation 2 (b) (iv) is Sri Lanka Telecom, through a product called Peo, operating as IP TV (http://www.peotv.com/index.php).
9. IP TV refers to transmission of TV over IP networks. More specifically, IPTV is a service that is developed using a number of converged technologies to transmit TV over Internet Protocol (IP) networks and receive it using different terminals. IPTV is a radical innovation based on the convergence between broadcasting, IT and telecom networks. There is a critical distinction between using IPTV for the delivery of TV through dedicated/managed broadband networks and delivering WEB TV/Internet TV, i.e. TV over the open Internet.
10. A definition for IPTV is given by the International Telecommunications Union (ITU):
‘an IPTV service (or technology) is the new convergence service (or technology) of the telecoms and broadcasting through Quality of Service (QoS) controlled Broadband Convergence IP Network including wire and wireless for the managed, controlled and secured delivery of a considerable number of multimedia contents such as Video, Audio, data and applications processed by platform to a customer via Television, PDA, Cellular, and Mobile TV terminal with STB module or similar device’. (http://www.cable-quest.in/october2008/gudeline_for_iptv.html )
11. IP TV content / programming is delivered over an exclusive network managed usually by a telecommunications company. Technically, IP TV is carefully engineered to ensure high video and audio quality to each subscriber, who has to pay to view content unlike free-to-receive terrestrial broadcasts.
12. IP TV is geographically bound and offers the same programming / content as cable and satellite providers. Leveraging technical aspects unique to IP TV and its exclusive and tight integration with the telecommunications provider’s telephony network, service and products, IP TV broadcasters can opt to provide features such as time-shifting and on-demand content (non-linear programming) as well as integration with voice and data communications (e.g. real time voting for entertainment programmes).
13. In contradistinction to IPTV and based on Point 7 (b) raised in this document, Internet Video or Internet Television or tele-visual content produced by users, for other users, to be viewed on demand via streaming over the internet or as downloadable video-casts (vodcasts) that can be viewed offline is fundamentally different to IP TV.
14. Internet Television is based on the same publishing and production model that the world wide web (WWW) is built upon – any can create an endpoint (a place to access content) and publish that endpoint on a global basis. Internet video is not tied to a telecommunication company’s network, services or product – it exists independently of any carrier and network operator.
15. The Consolidated Text of the Draft Audiovisual Media Services Directive (AVMSD) of the European Parliament and the Council of the European Union published on 16th April 2007, which is under consideration as a framework to regulate, inter alia, television broadcast in the European Union notes in this regard that proposed regulations will not cover
“…activities which are primarily non-economic and which are not in competition with television broadcasting, such as private website and services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest.” (‘Draft Audiovisual Media Services Directive’, April 2007, http://ec.europa.eu/avpolicy/docs/reg/modernisation/proposal_2005/avmsd_cons_amend_0307_en.pdf )
16. Whereas IP TV has the option of broadcasting content according to a schedule or on-demand (a linear non linear model), Internet Television is, by default overwhelmingly on-demand and non linear. User generated videos on websites such as YouTube (www.youtube.com), Vimeo (www.vimeo.com) and on web based social networking sites such as MySpace (www.myspace.com) and Facebook (www.facebook.com) can all be viewed on-demand over any broadband enabled PC or mobile device.
17. In sum, though both share similarities in the underlying content transport layer (using IP based networks) IP TV and user generated Internet Television are fundamentally different video production and dissemination models. Attempting to conflate both for purposes of regulating content is, at best, meaningless.
18. Furthermore, in light of these concerns, Regulations 2 (b) (iv), and 2 (b) (v) read alongside Regulations 9 (b) and 10 (b) in particular raise very serious concerns on the Freedom of Expression on the web and Internet in Sri Lanka.
19. The stipulation for all ‘broadcasters’ to enter into an ‘agreement’ that is unspecified in the Gazette, with the Internet Service Provider who provides access to the web and Internet is a draconian measure pointedly designed to curtail and block independent and free production, access and transmission of, inter alia, video content over the Internet and the web.
20. This is particularly concerning since, to expand on what was flagged in Point 4 of this document, video over the Internet also encourages and facilitates easy audience participation in the form of text and video feedback and comments. Holding ‘broadcasters’ in Sri Lanka, including ISPs, responsible for not just user generated content, but also user generated comments to content published from other sources, is a regulatory nightmare and technically impossible to comply with.
21. The lack of any clearly defined framework for the nature and scope of the ‘agreement’ enumerated in Regulations 9 (b) and 10 (b) has disturbing and negative implications for the rights of all wired and wireless broadband customers in particular – including all ADSL, 3G mobile telephony and 3G HSPA mobile broadband modem users – as well as all citizens, since those who may not be a customer of an ISP could still use the internet to disseminate video productions (e.g. video content that is uploaded through a cybercafé).
22. There are 63,300 broadband subscribers as of March 2008 according to the ITU (http://www.itu.int/ITU-D/icteye/Reporting/ShowReportFrame.aspx?ReportName=/WTI/InformationTechnologyPublic&RP_intYear=2007&RP_intLanguageID=1) in Sri Lanka and this number is estimated to grow at an annual growth rate of 22-25% during 2008-2011 (http://www.newswiretoday.com/news/41335/). These numbers don’t take into account the growth of 3G mobile phone based wireless broadband subscribers, who with modern mobile phones, can produce, upload, disseminate and access video from their handsets. These numbers are impossible to manage technically in a manner that guarantees ISPs are compliant with, in particular, Regulations 13 (e), 15 (a) and 26 (1).
23. Since all State owned and privately owned ISPs in Sri Lanka are risk averse and for example have blocked www.tamilnet.com since July 2007 without any public acknowledgement of the source and legality of the orders so given, it is highly probable that ISPs will impose draconian limitations on the qualitative nature of video content produced, disseminated, archived or otherwise referenced through their networks.
24. The wording of the Gazette also refers ‘channels’, a term rendered meaningless in the context of Point 16 of this document, where YouTube (www.youtube.com) alone showed a year on year growth of 1,972% (http://www.comscore.com/press/release.asp?press=1193) and in January 2007 alone had 54.7 million unique viewers, and 1.17 billion video streams. (http://www.marketwatch.com/news/story/even-slowing-growth-youtube-remains/story.aspx?guid=%7B98FB4A03-0B53-4CFB-BA2D-716D2B59CAAB%7D) Whereas the notion of a channel first applied to terrestrial video and radio broadcasts and to varying degrees still applies to the basis of broadcasts enumerated in Regulations 2 (b) (ii) and 2 (b) (iii), they are meaningless in the context of free to view and platform / device agnostic video streams available within and outside Sri Lanka that can play on any broadband enabled PCs or mobile device.
25. This fact is pertinent when interpreting Regulation 15 (1) (a) in relation particularly to those who use the technologies noted in Regulations 2 (b) (iv) and 2 (b) (v). It is technically impossible to identify the potential number of ‘channels’ that can be broadcast and accessed over TV on the Internet through a PC connected to any broadband Internet connection or 3G mobile. ISPs cannot be asked to provide such information because they cannot and even if it was hypothetically possible to provide a list of the millions of video streams on the internet today, it would be woefully outdated in less than 24 hours given the nature and growth of video content and the Internet and web in general.
26. Regulations 9 (b) and 10 (b) are also technically unfeasible for another reason linked to Point 4 of this document. All subscribers of 3G services who have 3G mobile phones and all subscribers of wired and wireless broadband Internet access in Sri Lanka are, given the lack of any meaningful definition of ‘broadcaster’ in this Gazette coupled with the confusion between commercial IP TV broadcast models and user generated video content production models, subject to these regulations. Though aimed at Private TV broadcasters, the over broad scope and nature of the Regulations and the onus placed on ISPs to regulate content over their networks severely undermines the freedom of expression of end-users, including citizen journalists, media personnel and activists, for example, who document human rights abuses by the State.
27. Regulation 19 is particularly disturbing in this regard for it imposes an unfair and unworkable condition on ISPs to ensure that all content on all their networks are compliant with points enumerated in Regulation 13 (e). Given the wealth of video content on one site alone brought out in Point 22, the power given to the Minister to suspend a license of an ISP has catastrophic implications. ISPs are unlike broadcasters or television studios. Video content is a subset of telephony and Internet communications that ISPs facilitate to millions of subscribers. Cancelling the video-broadcasting license of an ISP under this gazette essentially prevents ALL customers from producing, accessing and disseminating video content though its network(s). This is an untenable proposition.
28. What is important to flag here is also the concern that ISPs, cognisant of the issues noted in Point 25 of this document and keen to not lose their license, interpret the non-defined ‘agreement’ stated in Regulation 9 (b) and 10 (b) to create legally binding frameworks with customers to severely censor video content produced, accessed and disseminated on its network(s).
29. Monitoring the performance of licensees to ensure due compliance with the provisions of the Regulation as noted by Regulation 14 (a) is again overbroad and meaningful when talking of TV on the Internet or mobile devices. Whereas such monitoring may not be desirable with the mode of broadcasts enumerated in Regulation 2 (b) (i), 2 (b) (ii) and 2 (b) (iii) it is technically possible to do so. Further, it is technically possible – given the limited selection of channels and technology used – to monitor IP TV broadcasts. However, it is technically impossible to monitor all video content on the Internet or, as Regulation 15 (2) stipulates “maintain electronic copies of all the material broadcasted… for a minimum period of sixty days.” No broadcaster and ISP in Sri Lanka have the massive technical, financial and human resources to comply with this Regulation.
30. With regards to the transmission of content which originates outside the territory of Sri Lanka for the view of the public within Sri Lanka, as noted in Regulation 26 (1), the Gazette again enumerates a stipulation rendered meaningless and unworkable by the nature of television content on the internet that can be accessed via PC and 3G mobile devices. While Regulation 26 (1) can be imposed on terrestrial broadcasts as well as cable TV, satellite TV and specifically IP TV it cannot, in any way, regulate television content already on the internet and that will be produced henceforth that can be, by the nature of the Internet, accessible freely over any Internet enabled device over a broadband connection. Compliance with Regulation 26 (1) for ISPs will quite simply mean that they have to block, carte blanche, every single website and Internet location containing video content originating outside the territory of Sri Lanka. Given the growth of websites and content, even this is technically unfeasible for ISPs, but even in a limited form will lead to unacceptable and egregious censorship of (video) content on the web and Internet.
31. Finally, it is unclear whether political parties who choose to produce and disseminate video content to educate the general public on their practices and policies will be able to do so henceforth under Regulations included in this Gazette. Whereas today political parties can potentially broadcast their message using any of the means flagged in Regulation 2 (b) (i) through to 2 (b) (v), content deemed to contravene Regulation 13 (e) by the Minister may result in the ISPs as well as traditional broadcasters refusing to help produce, transmit and archive party political content especially from political parties not part of the incumbent government. However, because it is the nature of government to change after elections, ISPs and traditional broadcasters may find that content that was fit to be broadcast under one regime may be precisely that which puts their license at risk under another. This will invariably lead to a situation where the general public and voters will be denied video content that can educate them on vital issues, alternatives, vital policy debates and severely undermine their right to information.