On 27 August 2015, the Minister for Communications and Minister of Broadcasting, Hon. Amy Adams, released a discussion paper announcing the launch of a cross-government work programme to assess the ‘fitness for purpose’ of New Zealand’s laws in the telecommunications, information technology, media and entertainment sectors.
In contrast to a 2008 review that was turned to stone by trying to confront head-on the multi-headed Medusa of digital convergence, the current work programme carves up the issues to deal separately with its many heads. While that may assist with achieving tangible outcomes from this work programme, the rapid evolution of technology means that it is almost inevitable that the spectre of more complete convergence of the broadcasting and telecommunications regulatory regimes will need to be confronted.
The discussion paper, entitled “Exploring Digital Convergence: Issues for Policy and Legislation”, (the “Green Paper”) and the work programme it launches, are part of the Government’s Business Growth Agenda. The Business Growth Agenda is the Government’s flagship strategy for facilitating a more productive and competitive economy by focusing on six key areas: export markets, innovation, skilled and safe workplaces, capital markets, natural resources, and infrastructure.
The Green Paper considers regulatory issues arising from the phenomenon of “digital convergence” – where advances in technology mean previously distinct services, such as broadcasting and telecommunications, become amalgamated into a single service on a shared digital infrastructure (such as a smartphone, providing internet access, telecommunications, gaming, music, and TV services).
As the boundaries between previously distinct industries blur, it becomes increasingly important that regulatory frameworks remain fit for purpose. If the applicable regulatory regimes fall out of step with technological change, the risk of arbitrarily exposing different industry participants to different practical rules and standards increases.
In particular, the Minister noted that the impacts of convergence are acutely felt in the area of content, where differences exist between the content classifications, standards, and advertising restrictions for different platforms. It makes no sense for content viewed online to be subject to a different regulatory framework than content viewed over broadcast television, yet that is what exists at present.
In recognition of the importance of content in the convergence review, a separate brief discussion paper, “Content Regulation in a Converged World” was released simultaneously,1 and stresses the importance of neutrality across the various TIME platforms.
This is not the first time that the Government has considered the impacts of convergence. Back in 2008 - when 3G broadband was revolutionary and the iPad was just a twinkle in Steve Jobs' eye - the Ministry for Culture and Heritage and the Ministry of Economic Development commenced, under the previous Labour-led Government, a review into whether New Zealand should merge the regulation of content, distribution and networks into a single regulator due to convergence (the “2008 Review”).2
This was a broad undertaking for a single review, and as can perhaps be understood given the complexity and multiplicity of the issues and industries involved, the 2008 Review ended with a recommendation to maintain the status quo.
The Green Paper
The work programme announced in the Green Paper will take the form of a ‘fitness for purpose’ test of New Zealand’s TIME legislation. The cross-government review will include:3
- A review of the regulatory framework for content classification, led by the Ministry for Culture and Heritage;
- A review of the regulatory framework for telecommunications and radio spectrum (which will feed into the Ministry of Business, Innovation and Employment’s (MBIE’s) review of the Telecommunications Act 2001, which began in 2013);
- A study into the development of the infrastructure needed to support convergence, led by MBIE (in progress);
- A refresh of the Cyber Security Strategy and Action Plan, led by the National Cyber Policy Office within the Department of the Prime Minister and Cabinet (in progress);
- A review of the applicability of GST to cross border services and intangibles, led by the Inland Revenue Department (in progress);
- A study of the creative sector use of the copyright and designs regimes, led by MBIE; and
- Continued focus on the Data Futures Partnership, led by the Treasury, Statistics New Zealand, and the Ministry of Justice.
Perhaps ironically for a review focusing on convergence, the work programme divides the numerous complex issues at play between several different Governmental bodies.
For this reason care must be taken to ensure that this atomistic approach does not come at the expense of the overall cohesion of the review. Coordination between the work programmes, and ongoing consideration of how one programme within the review impacts on others or even workstreams outside of the review itself, will be crucial to ensuring the overarching success of the endeavour.
For example, MBIE’s ongoing review of the regulatory framework for telecommunications and radio spectrum currently focuses solely on the Telecommunications Act 2001. MBIE noted in its initial 2013 discussion paper that the second phase of its review could consider whether the scope of telecommunications access regulation should be broadened “in light of the increased convergence of content delivery across common platforms”, but noted that the review did not propose to cover content issues relating to broadcasting. By contrast, the Green Paper identifies the inconsistency of excluding broadcasting networks from the scope of the Telecommunications Act in the modern world. This suggests that a more holistic and unified approach to the Government’s consideration of network regulation should be taken going forward.
The fast-paced evolution of technology, and the digital disruption that is being increasingly felt in every industry (think taxis, accommodation and retail shopping, to name but a few), stress the importance of modernising laws and regulations designed for old technology. The proposed cross-government programme is laudable for the scope of issues it is seeking to tackle, and its attempt at cutting through the scale and complexity of the issues by adopting a multi-faceted approach involving different Governmental bodies.
That said, care will need to be taken to remember we are only part-way through a never-ending process of technological evolution, so that in updating regulatory frameworks designed for old technology, sufficient flexibility is built in to avoid creating barriers for emerging technology. In addition, to meaningfully grapple with digital convergence the current programme will need to confront head-on the issue that the 2008 Review ultimately shied away from – whether there is compelling logic for maintaining separate regulatory regimes for broadcasting and telecommunications.
The Government is currently seeking feedback on the Green Paper; in particular, on how convergence is affecting New Zealand, and whether there are any issues not covered by the work programme that should be addressed.
Submissions are due 5pm Friday 16 October 2015, and can be emailed to [email protected].
This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.